Challenges For the Future of Legal Advocacy for Children and Families

1. Challenges For the Future of Legal Advocacy for Children and Families Howard Davidson Director, ABA Center on Children and the Law American Bar Association 202/662-1740 davidsonha@staff.abanet.org See also, “Children’s Rights and American Law,” 20(1) Emory Law Review 69 (Spring 2006); “Child Protection Policy and Practice at Century’s End,” 33(3) Family Law Quarterly 765 (Fall 1999)

2. 1975 Guidelines for Legislation on Reporting Child Abuse and Neglect (supported by U.S. Children’s Bureau)– year after CAPTA For reporting: “Serious physical harm,” or “serious impairment” due to neglect, or “potential harm” required “Mandatory” reporters only required to report suspected abuse, not neglect Emergency removals by CPS or police only when child in imminent danger of loss of life

3. Reports to be investigated by a “specialized” CPS, or by the police Maintain CPS report information in a “central register” (but for how long?) Very strict limits on access to CPS reports/records (only accessible to CPS, court, researchers, and subject of report)– But what about access by physicians/other service agencies?

4. IJA/ABA Standards Relating to Abuse & Neglect (1977-78) Would limit mandatory reporting to severe “abuse” (child suffered physical harm with substantial risk of death, disfigurement, impairment of bodily function, or other serious physical injury) Would limit emergency removal to where probable cause to believe child in danger of imminent death or serious bodily injury

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

6. Any person would be able to file a child protection petition (like Mr. Gerry did in 1874) Child would have to attend hearings unless court found, upon a motion, that “attendance would be detrimental to the child” Child could only give evidence if court found testifying would not be detrimental to child Parents would have a right to trial by jury Petition would have to be proven by clear and convincing evidence

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

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

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

10. No TPR could be ordered if: There was a close parent-child relationship, making it detrimental for child to TPR Child was with relative who won’t adopt Child’s problems required placement in a residential treatment facility and continued parental rights would not prevent a later permanent family placement when needed Child couldn’t be placed in a family environment Child over 10 objected to TPR

11. What Child Welfare Court Intervention Looks Like 1976 Maybe emergency hearing Initial hearing (incl. appt. of counsel) Adjudication hearing Disposition hearing Maybe 1 or more review hearings TPR hearing TODAY …in addition: Pretrial hearings/mediation/FGCs Reviewing & making 4 types of findings on agency “reasonable efforts,” plus “staying home is contrary to welfare” determination if need for placement Permanency hearing Guardianship/custody hearings Post-TPR review/permanency/adoption hearings Pre-transition from care hearings

12. Participants in the Process 1976 Caseworker Custodial parent(s) TODAY – in addition… Noncustodial or putative parent Foster parents/Relatives Separate attorney for each parent Child's attorney or GAL Agency attorney CASA volunteer Child

13. Issues Typically Resolved 1976 Validity of allegations Who will have custody of child, if allegations are proven TYPICALLY NO TIME LIMITS SET FOR WHEN HEARINGS MUST BE HELD & COURT ACTION COMPLETED TODAY– those plus… Need for emergency placement of child Sufficiency of agency efforts to prevent placement Necessity of emergency relief other than placement (e.g., removal of perpetrator from home) Validity of allegations Custody, if allegations proven Visitation / Sibling contact Sufficiency/review of agency’s Case Plan Sufficiency of efforts to implement Case Plan Sufficiency of agency efforts to reunify family Whether efforts to reunify family are required Child's long-term legal status (permanency hearing) Termination of parental rights or legal guardianship Sufficiency of efforts to place child for adoption Adoption TIME LIMITS FOR MANY OF THESE DECISIONS

14. 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

15. Holding periodic care review hearings Holding timely permanency hearings for foster children Holding timely TPR proceedings Holding timely hearings on guardianship of children in foster care and holding timely adoption completion proceedings Providing procedural safeguards concerning placement and visitation Providing notice of all hearings to foster parents, pre-adoptive parents, kinship care providers & giving them right to participate

16. Children’s Dependency Attorneys’ Caseloads 17.6% of our 210 respondents had caseloads of 200 and over. Almost a quarter had caseloads of100-199 Among 76 respondents indicating they spent 100% of time representing children in dependency cases, 71.1% were handling 100 or more cases and one-fifth had caseloads in range of 300-499!

17. Children’s Dependency Attorneys’ Compensation Attorneys, in the 31 jurisdictions we surveyed, told us their hourly rate was commonly between $30-60 per hour Per-case compensation “caps” were as low as $250-500 with sometimes up to another $500 available for post-adjudication and initial disposition case work

18. Evaluations Showing Impact Of Having a Lawyer for Child ?

19. Today’s Challenges for Lawyers Respecting Parental Rights & Strengths Enhance parents’ participation in agency case involvement/plans/services Improve quality of court-appointed legal representation of parents (use new ABA Standards of Practice) Clarify for parents (and children) their legal rights in the context of government child protective investigations and record-keeping Protect privacy in an “open court” era

20. Enhancing Legal Representation Generally Get court rules or binding guidelines to dictate Standards of Practice Aid legally unserved kids (crime victims; ex-foster youth; status offenders) Pass laws clarifying and strengthening role of child’s lawyer (see, NCCUSL Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act) www.law.upenn.edu/bll/ulc/rarccda/2006_finalact.pdf Evaluate quality/scope of child, parent, & agency legal representation

21. What Are States Doing to Enhance Representation? More than 20, since 2000 have either promulgated, developed, or are drafting child attorney statewide performance standards or practice guidelines Increasingly moving to specially contracted attorney representation, often tied to evaluations and monitoring of performance

22. Conducting statewide assessments of the quality and impact of attorney representation Supporting pilot legal representation programs Creating statewide support programs/offices to enhance quality of representation of children and parents Some have increased state funding for attorney representation of abused/neglected children and parents

23. Other novel reforms in attorney representation include: New lawyer mentor programs Programs in schools, hospitals, etc. Model projects where appointed lawyers and CASA collaborate effectively and actively Tiered representation system, where attorneys are always assigned to cases of greater complexity when becoming experienced Certification specialization availability (NACC)

24. Maintaining “Substantial, Ongoing, and Meaningful” Relationships Between Child Welfare Agencies and Juvenile Courts Help make court actions more timely, and better ensure safety, permanence, and well-being of children in foster care cases, through improved data collection and agency-court coordination Better train judges, attorneys, and other legal personnel in child welfare proceedings, including cross-training with child welfare agency staff and contractors

25. Addressing Important & Too Often Overlooked Areas of Importance Better pre-removal & post-reunification services for parents/caretakers Support of relative caretaker needs Help youth well-being (“benchmark” and discharge hearings & post-18 court hearings) Effective post-permanency services Use SIJS law for immigrant kids in care Enhance housing, substance abuse, and mental health treatment for families

26. Crucial Future Reforms Effective child protective intervention prevents future crime, mental illness, substance abuse, & other societal costs! Make enhancement/greater funding of the child welfare system, including preventative services, a political issue Target new support for “evidence-based” programs Clarify statutory basis for child protective intervention (re-draft abuse/neglect laws)

27. Support a New Professionalism in a More Effective Child Protection System With judges & attorneys who want to work within that system, and remain in it Enhancing law school multidisciplinary education/clinical programs that include schools of medicine, social work, psychology, etc. Strengthening state and local bar association involvement in child protection system reform

28. What Child Advocacy Law Field Needs the Most Common policy vision More unified, collaborative agenda Program sustainability Larger constituencies Stronger voices in legislative process More visible and vocal champions in government (elected & civil servants) Emergence of a true “children’s rights to protection” movement