Challenges For the Future of Legal Advocacy for Children and Families

Howard DavidsonHoward DavidsonDirector, ABA Center on Children and the LawDirector, ABA Center on Children and the Law

American Bar AssociationAmerican Bar Association202/662-1740 davidsonha@staff.abanet.org202/662-1740 davidsonha@staff.abanet.org

See also, “Children’s Rights and American Law,” 20(1) See also, “Children’s Rights and American Law,” 20(1) Emory Law Review 69 (Spring 2006); “Child Protection Policy Emory Law Review 69 (Spring 2006); “Child Protection Policy and Practice at Century’s End,” 33(3) Family Law Quarterly and Practice at Century’s End,” 33(3) Family Law Quarterly 765 (Fall 1999)765 (Fall 1999)

1975 1975 Guidelines for Legislation on Guidelines for Legislation on Reporting Child Abuse and Neglect Reporting Child Abuse and Neglect (supported by U.S. Children’s Bureau)– (supported by U.S. Children’s Bureau)– year after CAPTAyear after CAPTA

For reporting: “Serious physical harm,” For reporting: “Serious physical harm,” or “serious impairment” due to neglect, or “serious impairment” due to neglect, or “potential harm” requiredor “potential harm” required

““Mandatory” reporters only required to Mandatory” reporters only required to report suspected abuse, not neglectreport suspected abuse, not neglect

Emergency removals by CPS or police Emergency removals by CPS or police only when child in imminent danger of only when child in imminent danger of loss of lifeloss of life

• Reports to be investigated by a Reports to be investigated by a “specialized” CPS, or by the police“specialized” CPS, or by the police

• Maintain CPS report information in a Maintain CPS report information in a “central register” (but for how long?)“central register” (but for how long?)

• Very strict limits on access to CPS Very strict limits on access to CPS reports/records (only accessible to reports/records (only accessible to CPS, court, researchers, and subject of CPS, court, researchers, and subject of report)– But what about access by report)– But what about access by physicians/other service agencies?physicians/other service agencies?

IJA/ABA IJA/ABA Standards Relating to Standards Relating to Abuse & NeglectAbuse & Neglect (1977-78) (1977-78)

Would limit Would limit mandatory reporting to mandatory reporting to severe “abuse” (child suffered physical severe “abuse” (child suffered physical harm with substantial risk of death, harm with substantial risk of death, disfigurement, impairment of bodily disfigurement, impairment of bodily function, or other serious physical injury)function, or other serious physical injury)

Would limit Would limit emergency removal to emergency removal to where probable cause to believe child in where probable cause to believe child in danger of imminent death or serious danger of imminent death or serious bodily injurybodily injury

““Endangered Child” court jurisdiction Endangered Child” court jurisdiction would bewould be limitedlimited to to: actual or : actual or imminently threatened serious physical imminently threatened serious physical injury cases; emotional damage (with injury cases; emotional damage (with evidence of severe anxiety, evidence of severe anxiety, depression, withdrawal, or aggression depression, withdrawal, or aggression to self or others) where parents not to self or others) where parents not willing to provide treatment; sexual willing to provide treatment; sexual abuse in home; medical neglect (if abuse in home; medical neglect (if death, disfigurement, or substantial death, disfigurement, or substantial impairment of bodily functions impairment of bodily functions threatened) and parents unwilling to threatened) and parents unwilling to consent or provide treatment; parental consent or provide treatment; parental encouragement of delinquent actsencouragement of delinquent acts

Any person would be able to file a child Any person would be able to file a child protection petition (like Mr. Gerry did in protection petition (like Mr. Gerry did in 1874)1874)

Child would have to attend hearings Child would have to attend hearings unless court found, upon a motion, that unless court found, upon a motion, that “attendance would be detrimental to the “attendance would be detrimental to the child”child”

Child could only give evidence if court Child could only give evidence if court found testifying would not be detrimental found testifying would not be detrimental to childto child

Parents would have a right to trial by juryParents would have a right to trial by jury Petition would have to be proven by clear Petition would have to be proven by clear

and convincing evidenceand convincing evidence

Limitations Limitations on removal--on removal-- Court would not Court would not be able to remove child from home unless, be able to remove child from home unless, by preponderance of evidence, found by preponderance of evidence, found necessary to protect child from further necessary to protect child from further physical abuse, physical abuse, oror by clear and convincing by clear and convincing evidence that child couldn’t be protected evidence that child couldn’t be protected from other types of serious harm; Child from other types of serious harm; Child would not be removed solely due to would not be removed solely due to “environmental conditions” beyond control “environmental conditions” beyond control of parents that they could remedy if able; of parents that they could remedy if able; Court would also have to find, before Court would also have to find, before removal, a placement was available in removal, a placement was available in which child “would not be endangered” which child “would not be endangered”

If child not removed from If child not removed from home, court’s jurisdiction home, court’s jurisdiction would terminate automatically would terminate automatically 18 months after adjudication, 18 months after adjudication, unless upon a motion the court unless upon a motion the court found, after a hearing, clear found, after a hearing, clear and convincing evidence that and convincing evidence that child was still endangered or child was still endangered or would be endangered if would be endangered if services were withdrawnservices were withdrawn

No child would be permitted to No child would be permitted to remain in “voluntary” foster care remain in “voluntary” foster care placement over 6 months (& placement over 6 months (& even then only if under age 12) even then only if under age 12) without that child being made a without that child being made a “ward of the court” and a court “ward of the court” and a court finding that the child’s continued finding that the child’s continued placement was necessaryplacement was necessary

No TPR could be ordered if:No TPR could be ordered if: There was a close parent-child There was a close parent-child

relationship, making it detrimental for relationship, making it detrimental for child to TPRchild to TPR

Child was with relative who won’t adoptChild was with relative who won’t adopt Child’s problems required placement in a Child’s problems required placement in a

residential treatment facility and residential treatment facility and continued parental rights would not continued parental rights would not prevent a later permanent family prevent a later permanent family placement when neededplacement when needed

Child couldn’t be placed in a family Child couldn’t be placed in a family environmentenvironment

Child over 10 objected to TPRChild over 10 objected to TPR

What Child Welfare Court Intervention What Child Welfare Court Intervention Looks LikeLooks Like

19761976

Maybe emergency Maybe emergency hearinghearing

Initial hearing (incl. Initial hearing (incl. appt. of counsel)appt. of counsel)

Adjudication hearingAdjudication hearing

Disposition hearingDisposition hearing

Maybe 1 or more Maybe 1 or more review hearingsreview hearings

TPR hearingTPR hearing

TODAY TODAY …in addition:…in addition:

Pretrial hearings/mediation/FGCsPretrial hearings/mediation/FGCs

Reviewing & making 4 types of Reviewing & making 4 types of findings on agency “reasonable findings on agency “reasonable efforts,” plus “staying home is efforts,” plus “staying home is contrary to welfare” determination contrary to welfare” determination if need for placementif need for placement

Permanency hearingPermanency hearing

Guardianship/custody hearingsGuardianship/custody hearings

Post-TPR Post-TPR review/permanency/adoption review/permanency/adoption hearingshearings

Pre-transition from care hearingsPre-transition from care hearings

Participants in the ProcessParticipants in the Process19761976

Caseworker Caseworker Custodial parent(s) Custodial parent(s)

TODAYTODAY – in addition… – in addition… Noncustodial or Noncustodial or

putative parentputative parent Foster Foster

parents/Relativesparents/Relatives Separate attorney for Separate attorney for

each parenteach parent Child's attorney or GALChild's attorney or GAL Agency attorneyAgency attorney CASA volunteerCASA volunteer ChildChild

Issues Typically ResolvedIssues Typically Resolved19761976

Validity of Validity of allegations allegations

Who will Who will have custody have custody of child, if of child, if allegations allegations are proven are proven

TYPICALLY TYPICALLY NO NO TIME LIMITS TIME LIMITS SETSET FOR FOR WHEN WHEN HEARINGS HEARINGS MUST BE MUST BE HELD & HELD & COURT COURT ACTION ACTION COMPLETED COMPLETED

TODAY– those plus…TODAY– those plus… Need for emergency placement of childNeed for emergency placement of child Sufficiency of agency efforts to prevent placementSufficiency of agency efforts to prevent placement Necessity of emergency relief other than placement Necessity of emergency relief other than placement

(e.g., removal of perpetrator from home)(e.g., removal of perpetrator from home) Validity of allegationsValidity of allegations Custody, if allegations provenCustody, if allegations proven Visitation / Sibling contactVisitation / Sibling contact Sufficiency/review of agency’s Case PlanSufficiency/review of agency’s Case Plan Sufficiency of efforts to implement Case PlanSufficiency of efforts to implement Case Plan Sufficiency of agency efforts to reunify familySufficiency of agency efforts to reunify family Whether efforts to reunify family are required Whether efforts to reunify family are required Child's long-term legal status (permanency hearing)Child's long-term legal status (permanency hearing) Termination of parental rights or legal guardianshipTermination of parental rights or legal guardianship Sufficiency of efforts to place child for adoptionSufficiency of efforts to place child for adoption AdoptionAdoptionTIME LIMITSTIME LIMITS FOR MANY OF THESE DECISIONS FOR MANY OF THESE DECISIONS

COURT DUTIES THAT ATTORNEYS MUST MONITOR

• Evaluating reasonableness of services to prevent separation of families• Evaluating reasonableness of services to reunite families• Making decisions whether services to preserve or reunite families are required• Evaluating reasonableness of services to achieve permanency for children unable to go home, including possible interstate placements

Holding periodic care review hearingsHolding periodic care review hearings Holding timely permanency hearings for Holding timely permanency hearings for

foster childrenfoster children Holding timely TPR proceedingsHolding timely TPR proceedings Holding timely hearings on guardianship of Holding timely hearings on guardianship of

children in foster care and holding timely children in foster care and holding timely adoption completion proceedingsadoption completion proceedings

Providing procedural safeguards Providing procedural safeguards concerning placement and visitationconcerning placement and visitation

Providing notice of all hearings to foster Providing notice of all hearings to foster parents, pre-adoptive parents, kinship care parents, pre-adoptive parents, kinship care providers & giving them right to participateproviders & giving them right to participate

Children’s Dependency Attorneys’ Children’s Dependency Attorneys’ CaseloadsCaseloads

17.6% of our 210 respondents had 17.6% of our 210 respondents had caseloads of 200 and over. Almost a caseloads of 200 and over. Almost a quarter had caseloads of100-199 quarter had caseloads of100-199

Among 76 respondents indicating Among 76 respondents indicating they spent 100% of time they spent 100% of time representing children in dependency representing children in dependency cases, 71.1% were handling 100 or cases, 71.1% were handling 100 or more cases and one-fifth had more cases and one-fifth had caseloads in range of 300-499! caseloads in range of 300-499!

Children’s Dependency Attorneys’ Children’s Dependency Attorneys’ CompensationCompensation

Attorneys, in the 31 jurisdictions Attorneys, in the 31 jurisdictions we surveyed, told us their hourly we surveyed, told us their hourly rate was commonly between rate was commonly between $30-60 per hour$30-60 per hour

Per-case compensation “caps” Per-case compensation “caps” were as low as $250-500 with were as low as $250-500 with sometimes up to another $500 sometimes up to another $500 available for post-adjudication available for post-adjudication and initial disposition case workand initial disposition case work

Evaluations Showing Impact Of Evaluations Showing Impact Of Having a Lawyer for ChildHaving a Lawyer for Child

??

Today’s Challenges for LawyersToday’s Challenges for Lawyers Respecting Parental Rights & Respecting Parental Rights &

StrengthsStrengths Enhance parents’ participation in agency Enhance parents’ participation in agency

case involvement/plans/servicescase involvement/plans/services Improve quality of court-appointed legal Improve quality of court-appointed legal

representation of parents (use new ABA representation of parents (use new ABA Standards of Practice)Standards of Practice)

Clarify for parents (and children) their Clarify for parents (and children) their legal rights in the context of government legal rights in the context of government child protective investigations and child protective investigations and record-keeping record-keeping

Protect privacy in an “open court” eraProtect privacy in an “open court” era

Enhancing Legal Representation Enhancing Legal Representation GenerallyGenerally

Get court rules or binding guidelines to Get court rules or binding guidelines to dictate dictate Standards of PracticeStandards of Practice

Aid legally unserved kids (crime victims; Aid legally unserved kids (crime victims; ex-foster youth; status offenders) ex-foster youth; status offenders)

Pass laws clarifying and strengthening Pass laws clarifying and strengthening role of child’s lawyer (see, NCCUSL role of child’s lawyer (see, NCCUSL Uniform Representation of Children in Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Abuse, Neglect, and Custody Proceedings Act)Act)

www.law.upenn.edu/bll/ulc/rarccda/2006_finalact.pdfwww.law.upenn.edu/bll/ulc/rarccda/2006_finalact.pdf Evaluate quality/scope of child, parent, & Evaluate quality/scope of child, parent, &

agency legal representationagency legal representation

What Are States Doing to Enhance What Are States Doing to Enhance Representation?Representation?

More than 20, since 2000 have either More than 20, since 2000 have either promulgated, developed, or are promulgated, developed, or are drafting child attorney statewide drafting child attorney statewide performance standards or practice performance standards or practice guidelinesguidelines

Increasingly moving to specially Increasingly moving to specially contracted attorney representation, contracted attorney representation, often tied to evaluations and often tied to evaluations and monitoring of performancemonitoring of performance

Conducting statewide assessments of Conducting statewide assessments of the quality and impact of attorney the quality and impact of attorney representationrepresentation

Supporting pilot legal representation Supporting pilot legal representation programsprograms

Creating statewide support Creating statewide support programs/offices to enhance quality of programs/offices to enhance quality of representation of children and parentsrepresentation of children and parents

Some have increased state funding Some have increased state funding for attorney representation of for attorney representation of abused/neglected children and abused/neglected children and parentsparents

Other novel reforms in attorney Other novel reforms in attorney representation include:representation include:

New lawyer mentor programsNew lawyer mentor programs Programs in schools, hospitals, etc.Programs in schools, hospitals, etc. Model projects where appointed lawyers Model projects where appointed lawyers

and CASA collaborate effectively and and CASA collaborate effectively and activelyactively

Tiered representation system, where Tiered representation system, where attorneys are always assigned to cases of attorneys are always assigned to cases of greater complexity when becoming greater complexity when becoming experiencedexperienced

Certification specialization availability Certification specialization availability (NACC)(NACC)

Maintaining “Substantial, Ongoing, Maintaining “Substantial, Ongoing, and Meaningful” Relationships and Meaningful” Relationships Between Child Welfare Agencies Between Child Welfare Agencies and Juvenile Courtsand Juvenile Courts

Help make court actions more timely, Help make court actions more timely, and better ensure safety, permanence, and better ensure safety, permanence, and well-being of children in foster care and well-being of children in foster care cases, through improved data collection cases, through improved data collection and agency-court coordinationand agency-court coordination

Better train judges, attorneys, and Better train judges, attorneys, and other legal personnel in child welfare other legal personnel in child welfare proceedings, including cross-training proceedings, including cross-training with child welfare agency staff and with child welfare agency staff and contractors contractors

Addressing Important & Too Often Addressing Important & Too Often Overlooked Areas of ImportanceOverlooked Areas of Importance

Better pre-removal & post-reunification Better pre-removal & post-reunification services for parents/caretakersservices for parents/caretakers

Support of relative caretaker needsSupport of relative caretaker needs Help youth well-being (“benchmark” and Help youth well-being (“benchmark” and

discharge hearings & post-18 court discharge hearings & post-18 court hearings)hearings)

Effective post-permanency services Effective post-permanency services Use SIJS law for immigrant kids in careUse SIJS law for immigrant kids in care Enhance housing, substance abuse, and Enhance housing, substance abuse, and

mental health treatment for familiesmental health treatment for families

Crucial Future ReformsCrucial Future Reforms Effective child protective Effective child protective

intervention prevents future crime, intervention prevents future crime, mental illness, substance abuse, & mental illness, substance abuse, & other societal costs!other societal costs!

Make enhancement/greater funding of Make enhancement/greater funding of the child welfare system, including the child welfare system, including preventative services, a political issuepreventative services, a political issue

Target new support for “evidence-based” Target new support for “evidence-based” programsprograms

Clarify statutory basis for child protective Clarify statutory basis for child protective intervention (re-draft abuse/neglect laws)intervention (re-draft abuse/neglect laws)

Support a New Professionalism in a Support a New Professionalism in a More Effective Child Protection More Effective Child Protection SystemSystem

With judges & attorneys who want to With judges & attorneys who want to work within that system, and remain in itwork within that system, and remain in it

Enhancing law school multidisciplinary Enhancing law school multidisciplinary education/clinical programs that include education/clinical programs that include schools of medicine, social work, schools of medicine, social work, psychology, etc.psychology, etc.

Strengthening state and local bar Strengthening state and local bar association involvement in child association involvement in child protection system reformprotection system reform

What Child Advocacy Law Field What Child Advocacy Law Field Needs the MostNeeds the Most

Common policy visionCommon policy vision More unified, collaborative agendaMore unified, collaborative agenda Program sustainabilityProgram sustainability Larger constituenciesLarger constituencies Stronger voices in legislative processStronger voices in legislative process More visible and vocal champions in More visible and vocal champions in

government (elected & civil servants)government (elected & civil servants) Emergence of a true “children’s Emergence of a true “children’s

rights to protection” movementrights to protection” movement