BEST PRACTICES IN CHILD PROTECTION COURTS
Barbara Flicker
May 24, 2005
INTRODUCTION
The practices and procedures governing the courts that enforce the laws designed to protect abused or neglected children have widely accepted goals.
1. Stop current abuse and prevent future abuse.
2. Comply with relevant statutes, rules, and regulations.
3. Contribute to efficient and economical court operation.
4. Meet standards of due process of law, with the minimum intervention necessary to protect the child.
5. Produce an outcome that provides a safe and nurturing environment conducive to the child’s healthy development.
Historically, the emphasis in the policies that have guided the courts and agencies that comprise the child protection system has shifted as the principal funding sources, primarily the federal government, have modified their mission statements. These variously have stressed child safety, mandatory reporting, social services, and foster care (Child Abuse & Treatment Act of 1973), reasonable efforts and services to prevent unnecessary removal from parental custody, case plans, and periodic court reviews (Adoption Assistance & Child Welfare Act of 1980), reducing long term foster care and facilitating the creation of court improvement projects in the states (Family Preservation & Support Act of 1993) and currently, expedited permanency in the form of family reunification, adoption, or legal guardianship (Adoption and Safe Families Act of 1997).
The linchpins of the child protection system have been social services and foster care. While preserving these elements, the Adoption and Safe Families Act of 1997 (ASFA) stresses positive and negative financial incentives to increase and accelerate adoptions. Its strictly enforced timeframes are intended to move cases more quickly to permanency.
The state and local agencies have responded to the pressure of tight deadlines in various ways, some by streamlining and improving the process and some by arbitrarily eliminating cases from their supervision. Child protection agencies have introduced ingenious but not always wise measures expanding front-end screening of cases to reduce caseloads. The resulting dramatic reductions in removals of children and increases in kinship custody are laudable if the cases have been properly screened and investigated.
Other practices have expedited adoptions, such as concurrent planning, which involves early assessment to identify cases in which the child is not considered likely to be returned to his or her parents, followed by placement with foster parents who have indicated that they want to adopt a child.
In general there has been a trend to the implementation of a wide range of alternative dispute resolution (ADR) remedies, including mediation, preliminary conferences, family group decision making (FGDM) conferences, and team decision making (TDM) conferences. Issues of safety assurance, adequate service provision, and due process raised by these procedures have not been reaching the courts, especially where cases have been diverted from the courts.
Additional projects have tested practices to improve the operation of the courts, such as the one judge/one family concept, the use of case managers, case tracking to ensure compliance with ASFA timelines, expanding the pool of available attorneys to represent children and parents, and using structured decision making for greater uniformity and objectivity in outcomes.
This paper will examine the quality, effectiveness, benefits, and issues surrounding the practices prevailing in the child protection system. Numerous national studies evaluating state and local practices will be drawn upon, including those from the Court Improvement Program of the U.S. Department of Health & Human Services Administration for Children & Families, the American Bar Association Center on Children and the Law, the American Humane Association, the Annie E. Casey Foundation, the National Council of Juvenile and Family Court Judges, and the Council for Court Excellence.
Part One deals with Pre-Filing Practices and Alternative Dispute Resolution Remedies, Part Two with Post-Filing through Post-Disposition Practices: Court Improvement Programs, and Part Three with Recommendations.
PART ONE: PRE-FILING PRACTICES/ADR REMEDIES
It may seem counter-intuitive to begin a study of court practices with activities that take place prior to a petition being filed. But many decisions are made from the time a complaint is received until the petition is filed that can have substantial impact on the family and on the outcome of the case.
Standard practice after a complaint of alleged child abuse or neglect is reported, usually by a telephone call to the “hot line” maintained by the child protection agency, is for the agency to make an assessment first of whether the complaint is sufficiently credible to warrant an investigation, then whether the circumstances indicate imminent risk to the child’s safety and compel emergency removal from the parents’ custody. If the child is removed, a court (“detention”) hearing must take place within 24 to 72 hours. If the child is not removed, the first court hearing usually is held within ten days.
Even in cases in which the child protection agency finds that a claim has been substantiated and recognizes a problem within the family, early intervention may obviate the need for court proceedings. In “Improving Juvenile Dependency Courts,” Judge Leonard P. Edwards of the Superior Court of California in San Jose said, “By creating a period of time prior to the filing of an abuse and neglect petition, the social service agency has the opportunity to offer intensive services to a family in an effort to resolve the crisis without formal court proceedings.” (Juvenile and Family Court Journal, November 1997, p. 5)
Numerous methods have been adopted by the agencies and sometimes by the courts in special court-connected programs to handle a matter by deciding on the services or other actions to recommend to the family prior to filing. The distinguishing feature of these practices is that they are voluntary- the operative word in the quote from Judge Edwards is “offer.” Until the court has taken jurisdiction of the matter, the parents are free to refuse to participate in any program or activity. Whether the parents feel coerced by the fact that the alternative to agreeing to the recommendations may be a judicial proceeding is a separate issue.
A further concern is the removal and placement of a child without the informed consent of the responsible parents, a formal hearing, or a court order. Responding to questions certified by the United States Court of Appeals for the Second Circuit in Nicholson v. Scoppetta, on October 26, 2004, Chief Judge Judith Kaye of the New York State Court of Appeals rejected the contention that the mere fact that a child whose parent who has been the victim of domestic violence has been exposed to that violence constitutes neglect. The unanimous court then held that if the agency believes it does not have enough time to file a petition, the next step should not be emergency removal, but ex parte removal by court order. Finally, the court would allow emergency removal without a court order or parental consent “if there is reasonable cause to believe that the child is in such urgent circumstances … that continuing in the home or care of the parent presents an imminent danger to the child’s life or health, and there is not enough time to apply for an order….” (p. 26)
Most of the practices described below also can be used after filing and at all stages of the proceeding. Some belong to the category of Alternative Dispute Resolution (ADR) remedies because the discussion and formulation of an agreement take place outside the presence of the judge. Others are designed to improve the manner in which the cases are handled.
1. Concurrent Planning.
Many states have introduced concurrent planning as a more efficient and humane practice in placing children who have been removed from their parents’ homes. The goal is to reduce or eliminate multiple changes in foster care placements by early assessment of the unlikelihood that a child will be reunited with his or her parents, leading to placement in a foster home in which the foster parents have expressed their wish to adopt a foster child. The obvious advantage is stability- the child and the foster parents can begin the bonding and adjustment process early, with less disruption when the time comes to terminate parental rights and perfect the adoption. The obvious defect in the plan is that it pre-judges a case on what may prove to be insufficient evidence. It clearly conflicts with efforts to resolve the problems in the parents’ lives and their attempts to rehabilitate and reunite their families. And if the parent is able to overcome these barriers and the court orders reunification of the family, it could be a bitter disappointment, if not a betrayal of trust for the foster parents. However, concurrent planning does enhance compliance with the ASFA mandates of permanency, reduced placements, and expeditious case management.
2. Family Conferences.
There are at least three major versions of family conferences: Family Group Decision Making (FGDM), Team Decision Making (TDM), and Family to Family (FTM). The common goal is to empower the family by having it participate in the decision making process along with the caseworkers and supervisors from the child protection agency, service providers, and other interested parties. However, the types of family conferences differ from each other in various significant ways.
a. FGDM has a long and distinguished history. It derives from New Zealand, where it is called the Family Group Conference. A strength-based strategy, the elements that make it special include the research and preparation that take place prior to the family conference, during which extended family members, close friends, service providers, and other potential “stakeholders” in the child’s future are recruited for the conference. The FGDM staff coordinators work to develop community partnerships to support the family plans adopted at the conferences.
The family conference itself consists of three phases. The first phase is an orientation period in which the participants, under the leadership of a facilitator, identify the family’s strengths and concerns (largely the agency’s issues). The second and unique phase is the “family alone time” when the family confers privately and structures a family plan to care for the child and deal with parental problems and the other concerns. In the third phase, the family and the other participants reunite to consider and if necessary, renegotiate the family plan. Ancillary matters, such as selecting a family member to monitor the implementation of the plan and deciding whether to schedule a follow-up meeting, are resolved during this phase.
Formal oversight of the plan, including referrals to services, is the responsibility of the caseworker, who also is responsible for submitting the family plan to the court.
In Los Angeles several local groups have become involved in providing FGDM outside the formal child protection system. They have formed a Southern California Family Group Decision Institute. Reverend Benjamin Shortridge, President of Los Angeles Family and Empowerment Services (L.A. FACES), recently facilitated a six session Training for Community-Based FGDM for members of his congregation and others in the community.
The American Humane Association has been active in promoting FGDM through its National Center on Family Group Decision Making, with conferences, technical assistance, and written materials. Issues of its magazine, Protecting Children, have been devoted to such themes as “Advancing Partnership-based Practice with Families.”
b. TDM is a more recent version of family conferences. It sometimes is called a placement conference because removal, reunification or other change of placement of the child frequently is the occasion for convening it, normally preceding the judicial hearing within forty-eight hours or less. With less notice and time for preparation, these conferences usually have fewer participants, although the parents are invited to bring in family members or other interested parties, community advocates, providers, or potential foster parents. A trained TDM coordinator or facilitator conducts the meeting, attended by the caseworker and often the unit supervisor. The outcome may be to identify additional services to permit the child to remain at home or in the care of a family member. The family members and other attendees participate in discussions of the resulting plan, which is prepared by the caseworker.
TDM is favored by many child protection agencies and the Annie E. Casey Foundation as a less expensive, more accessible, and less time-consuming process than FGDM. TDM also is more agency-centered, less family empowering, and less likely to resolve critical issues over the long term.
c. FTF conferences or meetings are similar to TDM conferences with similar attendees and techniques, but the emphasis in FTF is on keeping the children in their own neighborhoods and schools by locating and maintaining local foster and kinship families and services. The on-going effort is to build community partnerships by expanding community-based services, programs, and support systems for children in the child protection system. It often involves de-centralizing the child protection agency’s offices to provide a presence in the neighborhoods.
3. Mediation.
The most established ADR method is mediation. It is a process in which parties to a conflict meet with a neutral third party (the mediator) to develop an agreement that settles the matters at issue to the satisfaction of the parties. The mediator has no authority to impose a solution, but strives to reframe the issues to assist the parties in seeing their conflicts from different perspectives, emphasizing areas of common ground and guiding them toward recognizing new approaches to resolve their problems. Many family or dependency courts use mediation to address conflicts between parent and child or other family members, between the parents and the agency, between the parents, or between the family and the child protection agency or other agencies, such as schools or mental health providers. Even if the major issues in a case do not lend themselves to mediation, such issues as custody and visitation often are more amenable to mediation than to litigation.
The mediation agreement generally is not enforceable except by mutual consent of the parties, but in some jurisdictions it can be submitted to the courts for adoption as an enforceable court order or decree.
4. Preliminary Conferences.
Preliminary Conferences are informal meetings with a non-judicial officer as facilitator that take place prior to a formal court hearing. They take different forms at different stages of the case. Before the petition is filed, the conference may be used for early intervention in offering social services to the family, determining whether a relative or close friend is available to take temporary custody of the child, reviewing the appropriateness of the charges before filing them, or familiarizing the parties with the charges.
In some courts the facilitator is a case manager, tracking the case from the first hearing to the permanent disposition. Its goals are to expedite and humanize the process. At different stages it may take the form of an elevated risk conference, a settlement conference, or a placement or reunification conference. The potential participants in the preliminary conference- counsel, parents, children, social workers, service providers, or relatives- vary according to the purpose of the conference and the hearing it precedes.
New York City Family Court Judge Sara P. Schecter, who presides over New York’s Special Expedited Permanency Court (its original Model Court) considers preliminary conferences the key to an effective expedited process. In “Family Court Conferencing and Post-Dispositional Tracking Tools for Achieving Justice for Parents in the Child Welfare System,” she said “The solution was to create a conferencing process that parallels the court process up to the point of disposition and then takes over the case upon disposition until permanency is achieved.” (70 Fordham L. Rev. 427) The conference facilitator in Judge Schecter’s court is a case manager who holds the first conference on the day the petition is filed and continues to track the case and confer until the court is no longer involved.
5. Structured Decision Making (SDM)/Risk Assessment Tools.
Many child protection agencies have devised mechanisms to measure the risk of imminent danger of abuse or neglect in investigating reports of alleged maltreatment of children. The Arkansas Division of Children and Family Services has developed Health and Safety Assessment and Risk Assessment tools to determine both the immediate danger and the likelihood of future abuse as part of its structured decision-making (SDM) process to assist caseworkers in screening child maltreatment allegations. They identify the factors present in the home that endanger the child and provide guidelines for the decision to leave or remove the child.
SDM was designed to reduce subjective or inconsistent choices by caseworkers in situations in which they have to select a course of action that may affect the well-being of a child. Through training and adherence to well-defined guidelines, often based on point systems measuring levels of risk, caseworkers can strive to achieve reliability, predictability, and even uniformity in their decisions from the inception to the conclusion of a case.
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is an advocate of the SDM model as part of its Comprehensive Strategy to reform the juvenile justice system. As described in the October/November 2001 Juvenile Justice Update, the primary goals are to improve the reliability of staff decision making and to focus resources on the highest risk cases. The tools in the SDM model include a Response Priority Assessment to determine how quickly to begin the investigation, a Safety Assessment with the caseworker’s safety plan, a Risk Assessment (such as the California Family Risk Assessment Scale), and a Family Strengths and Needs Assessment as a basis for monitoring services and reassessments. Based on factors developed from reliable data and confirmed by extensive research, the California scale classifies families as low, moderate, high, or intensive risk.
6. Wraparound Services.
When the goal is to keep the child in the community and the needs of child and his or her families require interagency cooperation because the services needed cross agency lines, the Wraparound process is a system to organize that care. The state of Illinois has implemented a wraparound model based on individualized planning and needs-driven services. Local Area Networks (LANS) create community-based systems of care for the children in each LANS community. There are 62 LANS in Illinois.
A Child and Family Team, including the parent as a member of the team, develops an individualized plan that is family centered, may be changed as the unique needs of the child and family change, is community-based, and strengths-based, with services that are comprehensive and fit the culture and the community. The safety of the child is an underlying consideration.
A Wraparound Facilitator guides the team and monitors the team’s performance of its tasks. A special feature of the Illinois model is that different people may serve as facilitator and the facilitator or team members may perform some of the functions of case management. Wraparound services usually include counseling, psychiatric, psychological and other mental health services, as well as advocacy, mentoring and other services to sustain a normalized life in the community for children and their families. The essential element in the Wraparound process is interagency cooperation and coordination.
The wraparound concept of providing families with the services and supports they need to keep mentally and emotionally ill children at home was embraced in California. In 1991 EMQ Children & Family Services, a nonprofit agency in San Jose, decided to shift from residential treatment to a wraparound program. In 1994 it formed a partnership with county departments of social services, juvenile probation, and mental health to establish California’s first wraparound program, called UPLIFT. UPLIFT would “wrap” a child and his family in counseling, therapy, and in-home support services and link them to community supports, like recreation, tutors, and mentoring programs. It also would help with housing, food, childcare, transportation, and other services the family decided they needed. As in Illinois, the model is strength-based, child-, family-, and team-centered, cross-agency collaborative, and needs-driven.
The problem was funding. Although estimated by its proponents to cost less in the long run because children would spend less time more successfully in wraparound programs than in institutions, the program was costly. The state legislature and administration refused to allow foster care money to be used to keep children in their own homes. In 1997 California received a waiver from the federal foster care program, Title IV-E, to use foster care money for wraparound services in a demonstration project in twelve counties. As of January 2005, over one thousand children in California, many of whom are foster children, are receiving wraparound services through funds from the state Department of Social Services, the federal demonstration project, the Department of Mental Health under Medicaid, and county probation departments from the state Department of Corrections.
PART TWO: FILING THROUGH POST-DISPOSITION
COURT IMPROVEMENT PROGRAMS
Different studies by different national centers emphasize different but overlapping factors in identifying best practices in courts that handle child protection cases. The Council for Court Excellence (CCE), a nonprofit civic organization in Washington, D.C. since 1982, works to improve the administration of justice in the courts and related agencies in Washington and the nation. In 2001 it made site visits to four courts reputed to have adopted effective practices to meet ASFA standards: the Circuit Court of Cook County, Illinois, Pima County Juvenile Court in Tucson, Arizona, Jefferson County Family Court in Louisville, Kentucky, and the Superior Court of New Jersey in Newark. Based on their site visits and research, they described the following as Best Practices:
1. Commitment to permanency for children;
2. Implementation of the one judge/one family concept;
3. Multi-year judicial assignments and prior family law experience;
4. Judicial support and teamwork;
5. Use of ADR techniques throughout the case;
6. Collaboration among judges, lawyers, social workers, and other child welfare personnel;
7. Improved calendaring practices, including time-specific case calendaring, longer and more substantive hearings and conferences, and fewer continuances;
8. Interdisciplinary training on ASFA, court practices, and behavioral sciences;
9. Tracking of cases to insure compliance with ASFA; and
10. Allocation of sufficient space.
Pursuant to the CCE recommendations, these practices have been incorporated in the District of Columbia’s Family Court Act of 2001, with varying degrees of success in actually implementing them to date.
In “Improving Juvenile Dependency Courts,” California Superior Court Judge Leonard P. Edwards listed twenty-three detailed steps for court improvement. Although published in 1997 and presumably written prior to passage of ASFA, the steps are consistent with the ASFA mandates, including timely calendars and minimal continuances, albeit with less emphasis on rigorous deadlines to achieve permanency and more on reasonable efforts and periodic court reviews.
The National Council of Juvenile and Family Court Judges (NCJFCJ) published “Model Courts: Improving Outcomes for Abused and Neglected Children and Their Families” in January 2004. It describes the Model Courts Project, established in 1992, a group of juvenile and family courts working with the NCJFCJ’s Permanency Planning for Children Department (PPCD), using their best practices bench book, RESOURCE GUIDELINES to achieve systems reform. The U.S. Department of Justice’s OJJDP provides support for the project. Some of the practice improvements achieved by the Model Courts (including New York City’s Model Court) are described below.
The federal Court Improvement Program (CIP), a monumental, systemic undertaking to improve the operation of the nation’s courts hearing child abuse and neglect cases (variously called child protection, dependency, juvenile, and family courts), derives from the Family Preservation & Support Act (Federal Omnibus Reconciliation Act of 1993). All fifty states, the District of Columbia, and Puerto Rico currently receive federal CIP grants. As of 2002, grants ranged from about $99,000 for Wyoming to over $1,000,000 for California.
Mark Hardin, the Director of the National Child Welfare Resource Center on Legal and Judicial Issues at the ABA Center on Children and the Law, has been a leading figure in designing, overseeing, and analyzing the results of the Court Improvement Program from its inception. In “Court Improvement for Child Abuse and Neglect Litigation: What Next?” he set out the following five general categories as distinct areas for court improvement: Timing of Decision Making, Judicial Expertise, Legal Representation, Improved Judicial Procedures in Child Protection Cases, and Improved Judicial Administration. These categories are comprehensive and succinct, but the captions below reduce them further by covering Timeliness of Decision Making and Legal Representation under Judicial Procedures.
Many examples of reforms developed in CIP projects can be found in an invaluable fifty-nine page National Summary issued in 2004 by the ABA National Child Welfare Resource Center on Legal and Judicial Issues. It describes seventeen categories of court improvements undertaken by the states with the support of funding and technical assistance stemming from the 1993 federal Act.
Judicial Administration
1. Coordination with the Child Protection Agency and Other Agencies
The most effective child protection courts embrace their leadership role by bringing about close coordination with the agencies that provide on-going supervision and services to the children and families who come before them. More than in any other court, the judges and lawyers who deal with the legal issues in the cases are dependent upon an outside agency to report the facts as developed by the agency’s investigations, evaluations, and supervision of the principals in the cases. Their shared interest in effective management of the cases compels close collaboration throughout the judicial process, and even before the petition is filed.
The coordinating methods used range from periodic one-on-one meetings between the presiding judge and the director of the child protection agency to community coordinating councils of representatives of all the stakeholders in the field, including parents, foster families, and training institutes. Involvement of service providers is critical to ensuring the availability of adequate resources to implement the court’s orders and to the court’s awareness of the range of resources upon which it can draw. In addition, information and expert knowledge can be shared in planning new resources that should be developed.
Coordination with the agencies can disclose the need for changes in court or agency rules, forms, or procedures. It also may provide a forum for identifying subjects for training programs for the participants separately and in interdisciplinary programs, sometimes called cross-training.
The process of sharing information in order to coordinate activities highlights the advantages of technological improvements to facilitate regular electronic exchanges on both individual cases and general operations. As of 2004, fourteen states developed statewide management information systems with CIP funding to enable them to communicate internally and with other courts and agencies.
In addition, some courts provide office space for service programs. The Dependency Court in Los Angeles County houses a mediation program and a CASA program in its Monterey Park Children’s Court. Louisville, Kentucky arranges drug-testing and child support referrals from offices within its courthouse.
2. Coordination with the Executive and the Legislative Branches
As part of its leadership role, the judiciary must meet and negotiate with the state and local executive and legislative bodies on behalf of the courts and the communities they serve. Budget negotiations are indispensable for basic court operational expenses, but they also are necessary to support reform efforts, such as demonstration projects, expanded space for new programs, additional courts to relieve overcrowding, and added personnel for more efficient case handling.
Local judges must coordinate with state administrative staff to promote changes in court rules and procedures and with the state and local legislative bodies for changes in the laws affecting child protection. To be effective, especially for important reforms, they may seek the support of judges from other courts, local and statewide, their usual community collaborating partners, the media, and the public to show the legislative and executive branches how broad the base demanding changes can be.
3. Proper Conditions for Parties and Witnesses
Common complaints to court administrators concern unpleasant, inconsiderate, and inconvenient circumstances surrounding the court experience of parties and witnesses. For child protection courts, suitable arrangements for child care are a basic concern.
Aside from providing adequate clean, comfortable space and trained personnel, the court must alleviate the critical deficiencies that often accompany court appearances. Waiting time can be reduced by scheduling (and enforcing) specified times for hearings and individual testimony. Notices must provide sufficient time for parties and witnesses to contact employers and sitters. Anxiety about court appearances can be relieved by handouts with clear and cogent descriptions of the court process in English and Spanish, if that is the predominant second language. Translators should be accessible. Conference rooms to meet with attorneys in relative privacy should be provided. A pleasant, humane environment should be a minimal requirement for courts dealing with the most sensitive issues affecting children and families.
4. Advocacy for Improved Court Administration
Inherent in the coordinating activities of the court is the need to adopt and promote standards for optimum court operations. National standards for judicial administration can be found in the IJA/ABA Standards for Court Administration and the NCFCJ Resource Manual, among other such national studies, but state and local courts must consider the practices that will work best for their own caseloads and community.
National court management training programs offered by the National Center for State Courts and other training institutes are effective in honing court managers’ skills and providing opportunities for meeting with administrators from other states to “network,” compare experiences, and hear about new techniques and strategies. They also can unite in efforts to introduce legislation to improve court administration or oppose measures that would impede their work.
A survey and assessment of the needs of the people who participate in court proceedings (judges, parties, attorneys, agencies and other service providers, foster parents, children, etc.) should precede the promulgation of court administration standards or changes in court rules. The facts considered should include data on the number of cases filed, judges, attorneys, courtrooms and other rooms, forms used, average time for completion of the various stages of the proceedings, notices to non-parties, and information systems. After making the data available to stakeholders, there should be a series of meetings in which an agenda of necessary improvements in court administration can be developed and prioritized.
With the court in the lead, strategies to implement the agenda should be framed and responsibilities assigned. Steps might include major action, such as applications for Model Court or CIP funding, statutory or court rule changes, and local, state, or federal funding. Or the desired improvements might be accomplished by general acquiescence in changed court or agency forms, case assignments, docket and calendaring management, scheduling, or training. Other strategies might involve the public or the media, research on other jurisdictions’ practices, technical assistance, conferences, and consultations. The goal should be improvement in the quality of court operations.
Judicial Expertise
1. Duration of Judicial Terms.
Child protection courts are unlike other courts. Effective functioning as a judge in these courts requires a broad range of specialized knowledge, extensive experience, and special training. Conventional wisdom prescribes a minimum three-year assignment and preferably longer for the court to benefit from the time and effort invested in preparing a judge to serve in this court.
2. Training and Education.
A judge in child protection court must be familiar with information beyond the applicable laws. Child development, parenting skills, the physiology of drug and alcohol exposure for fetuses, child psychology, family systems and other areas of the behavioral sciences are among the formal disciplines and knowledge base that are directly relevant to child protection cases.
But more challenging than the academic areas for a new judge to study are the unique culture and structure of the child protection system. Only time and experience enable a judge to understand fully the relationship between the court and the child protection agency. Their mutual dependency- the court on the information reported by the agency and the manner in which the judge’s orders are executed by the caseworkers and supervisors; the agency’s workers on the court’s decrees, barred from taking action dictated by their training without the formal concurrence of a judge- is the source of frustration and misunderstanding, if not hostility on both sides. Months and years of personal contacts, collaboratively wrought outcomes, and recognition of common goals can bring them together, but the conflicts inherent in disparate education and background take time to overcome.
Further, the complexity of the rules and regulations governing an often large and unwieldy bureaucracy coupled with equally complex federal, state, and local legislative and administrative mandates make child protection a difficult body of information to absorb.
Finally, the issues that must be resolved by the court may be agonizing and not necessarily compatible with the judge’s life experiences. Intruding on family autonomy, taking a child from his or her parents is contrary to middle class values, but can be necessary with only minimal evidence in order to avoid possible harm to the child. Placing children in foster care statistically increases the chances of abuse beyond the risk of harm if they stayed with their parents, but it may be the correct disposition. Not many judges arrive in child protection court with the mental set for these decisions.
Judicial education helps. A wide choice of training is available (although not always offered to new judges), in-court, mentoring, county, state, and national programs. Judges should be trained before they take the bench and throughout their terms. Good bench books help. Periodic meetings with other judges in the same court, lawyers, and other stakeholders help. National judicial and multi-discipline conferences help. But experience in a child protection court is the best preparation for presiding over that court.
3. Specialized Parts and Divisions
Current views favor specialized parts and divisions (e.g. separate courts that handle only child abuse, neglect, or custody, paternity, support and related family matters). They permit the judge to acquire expertise more quickly than general jurisdiction parts and are more efficient because the support staff and service providers are accustomed to handling the particular type of cases.
4. One Judge/One Family
Specialized parts are contrary to the one judge/one family concept, which has a single judge handling all cases involving an individual family, usually in a family court setting. The one judge/one family concept has proven difficult to implement because it requires an excellent automated information system (or a very small court), an adaptable calendaring system, and a highly skilled judge capable of dealing with a multiplicity of possibly unrelated issues. The District of Columbia Family Court Act of 2001 provides for a one judge/one family system, but it has achieved only partial compliance to date.
In How Are Courts Coordinating Family Cases (National Center for State Courts, 1999) the authors, Carol R. Flango, Victor E. Flango and H. Ted Rubin suggest variations on the concept, referring to research models in Delaware, New Jersey, Oregon, and Washington (see a review in the December/January 2000 Juvenile Justice Update at page 5, noting that the judge’s familiarity with the families can lead to prejudgment).
Nevertheless, the concept has merit and is particularly well suited to a community-based court where the judge and the caseworkers can work with local service providers to meet the various needs of the family.
Judicial Procedures
Improved judicial procedures are central to the court improvement, model court, and best practices projects throughout the nation. Many of the improved procedures adopted to reform the judicial process have been mentioned in preceding categories, since the quality of judicial proceedings and their outcome are the goals against which the success of the projects are measured. The distinction between the categories of judicial administration and judicial procedures applied here is that improvements in judicial administration relate to the child protection court system as a whole and improvements in judicial procedures deal with the processing of individual cases within the court.
The elements that should be present in a court’s procedures are fairness, timeliness and efficiency, legal correctness, and enforceability. In child protection cases there is the added element of ensuring the child’s safety throughout the proceedings.
Ideally, every court would incorporate all of the proven best practices in their judicial proceedings. Limitations of funds, personnel, training, space, time, expertise, and resistance to change may be barriers to full implementation of improved procedures, but great progress has been made in the last decade.
1. Fairness.
Due process requires that the parties charged with an offense be accorded legal safeguards before they are deprived of any of their Constitutional rights. Therefore good screening techniques and assessment instruments based on research should be used first to determine whether a complaint is credible and then whether the risk factors reliably indicate that the child should be removed. The federal statutes, which have been incorporated into state law and agency rules, provide for a showing that Reasonable Efforts have been made to prevent the child’s removal from home. The pre-filing conferences and other methods described in Part One are pertinent to this stage.
Fairness also requires that all of the proper parties be notified of pending proceedings. Notice to the child’s non-custodial father is critical for many reasons- his paternal rights are at stake, he may possess significant information pertaining to the complaint, and he and his family are potential resources to take temporary custody of the child.
Another fairness feature is Representation by Counsel. The general principle is that all parties who cannot afford counsel have one assigned at the earliest stage that is feasible. Numerous CIP projects are addressed to problems connected with providing attorneys (sometimes called law guardians in family courts) and guardians ad litem (GALs). Some of the projects relate to developing performance standards and caseload guidelines (Arkansas, California, Louisiana, etc.). Maine is studying the use of contract counsel. Some states use public defenders as well as assigned counsel.
Children require representation separate from their parents or the state agency prosecuting the case, since their interests are not necessarily congruent with either party. Several states have chosen an ombudsman role for the representation of children. Delaware and Georgia each established an Office of Child Advocate to monitor the child protection agencies and recruit attorneys. Illinois is one of the states reviewing the adequacy of representation in juvenile court proceedings.
The projects on adequacy of legal representation are myriad. Their focus varies from recruiting pro bono attorneys to setting standards and guidelines for the selection and performance of attorneys and determining proper caseloads, compensation, monitoring, and training for the lawyers serving in child protection courts.
Several states have established partnerships with local law schools to develop law clinics specializing in child welfare cases and train law students to handle cases. In California there is a CASA (child advocate)/Attorney Collaboration Demonstration Project. CIP funds also have been awarded to develop a Kinship Care Advocacy Program for relatives who are not usually entitled to representation.
Fairness also requires that all affected parties have an opportunity to be heard. One pervasive problem in child protection courts is an overloaded court calendar that does not allow more than a few minutes per hearing. Steps must be taken to provide a full hearing, after which the court should render full findings on all of the matters at issue. Whenever possible, foster parents and concerned family members should attend the hearings and be heard if they have information that is relevant to the court’s decision.
Periodic reviews of the parties’ progress in complying with the court’s orders and of the child’s well-being are not meaningful if they do not include full hearings and findings of fact. Pre-hearing Conferences can be useful to the court and the parties (and save court time) by clarifying the issues, identifying matters that are not disputed, and giving the parties a chance to express concerns that they may not want to discuss in the judge’s presence. But there must be an opportunity for the facts upon which the court bases its decisions to be presented and opposing views heard at formal court hearings.
2. Timeliness of Decision Making
The governing federal statute, ASFA, has placed a premium on timely decisions to produce a safe and nurturing permanent home for the child as expeditiously as possible. While no one would dispute the merits of that goal, the process of achieving it must accord proper weight to all of the factors that determine the quality of the ultimate outcome of the case. Undue haste can defeat the purpose of the process. The court must decide or review the agency’s decisions as to whether the complaint is substantiated, whether the risk factors warrant removal, where the child should be placed, whether reunification is possible, which services might assist the parents to be rehabilitated, whether the parties are in compliance with the court’s orders, whether parental rights should be terminated, and which adoptive parents will provide the desired environment for the child.
There are measures that can contribute to the timely disposition of a case. These include the following:
a. Technology
Improved technology can be the foundation of many improvements in judicial procedures. Automated information systems facilitate data collection that can give the court manager and presiding judge snapshot views of judicial performance in terms of caseload and duration of decision making from the date of case assignment to final disposition or the date of a hearing to issuance of a ruling. The systems can provide automated case tracking and court calendar adjustments to assure compliance with ASFA timelines. With compatible systems, the court and agency can exchange data and transmit orders and reports electronically.
b. Cost Effectiveness Studies
Collecting data on the cost effectiveness of demonstration programs can contribute to their general adoption if the data are persuasive. Mark Hardin suggests studies of the use of court staff, the impact of docket changes on the time and costs of attorneys and agency staff, and cost savings of using ADR methods and of reforms to speed termination of parental rights.
c. Expedited Appeals
Rules to expedite appeals by reducing time limits for filing transcripts after the notice of appeal is filed and for filing briefs have been developed pursuant to CIP projects in Utah and Iowa. Other states have designed technology to process transcripts more quickly to shorten the appeal process.
d. Improved Forms
Even without an ideal information system, courts can expedite their procedures by improving the forms used at the various stages. Meetings with the affected agencies, parties, or other stakeholders can be the basis for identifying specific changes to produce better, shorter, clearer and/or more inclusive forms.
e. Fewer Continuances
A favored mechanism for reducing the duration of judicial proceedings is the elimination of continuances except in well-defined emergencies.
f. Case Managers
An additional practice to expedite proceedings is the appointment of a case manager who is responsible for shepherding a case from inception to conclusion, often beyond final disposition through adoption proceedings. The case manager may conduct pre-hearing conferences to clarify, simplify, and eliminate issues, acquaint parties with salient factors to be considered at the hearing, inquire into progress on implementation of court orders, and ensure compliance with court deadlines for filing reports and briefs, as well as ASFA timelines.
g. Settlement Conferences
Even without case managers, judges urge the parties (usually just the attorneys) to conduct settlement conferences in which they can reduce or modify the charges or counts in the petition, stipulate to facts not in contention, and otherwise shorten the court appearance or hearing time, even if they fail to eliminate all areas of conflict.
h. Knowledge of Timelines
Finally, the essential element in the effective implementation of improvements in timeliness is familiarizing the judges, attorneys, parties, and agencies with the procedural changes. This can be accomplished by distributing pamphlets and revised bench book pages describing the streamlined procedures and new forms reflecting the changes. Training programs, conferences, and meetings should be attended by the people who are affected by the changes- all new judges and practitioners should be mandated to attend orientation programs; sitting judges and veteran court practitioners should be required to attend periodic updated training programs so that everyone is familiar with every step of the judicial process. Training programs for agency caseworkers and supervisors, as well as administrators, also should be mandatory for new and experienced staff.
Presiding Judge Michael Nash of the Juvenile Court in Los Angeles County has instituted a practice of “brown bag” lunches in which the judges, attorneys, and other stakeholders meet for an hour on occasion to discuss current issues and proposals to improve the judicial process in both branches of the juvenile court’s jurisdiction, dependency and delinquency.
PART THREE: RECOMMENDATIONS
The Introduction and Parts One and Two present an overview of the best practices prevailing in the child protection courts throughout the nation. Recommendations in Part Three will focus more narrowly on the operation of a court in New York City that is multi-jurisdictional, presided over by a single judge in a community justice center.
The unique nature of child abuse and neglect cases (covered by Article 10 of the New York State Family Court Act) is ideally suited to a neighborhood court. The fact that families involved in such cases may have had prior contact with the justice center either for themselves or their friends or neighbors enhances the sense that the court is there to help the community. A local setting is less intimidating and more convenient, as are community-based services. In addition, programs located in the justice center are more accessible and more familiar to local families and should be less stigmatizing since they also are offered to people who are not parties to a judicial proceeding.
The assumptions that underlie the recommendations are driven by the goals of seeking the least restrictive alternative, serving the best interests of the child, providing adequate safeguards to preserve the rights of the parties to due process of law, and doing the least harm. The relativist quality of these goals stems from the fundamental dilemma of the child protection system- children who have been damaged by abuse or neglect may be further damaged by their removal from their homes and placement in foster care, whereas allowing them to remain in their homes quite possibly may expose them to greater harm. The dilemma is exacerbated for the judges hearing these cases by their reliance on reports that come from a social work perspective that is very different from their own.
Finally, the recommendations are framed to relieve the single sitting judge of the burden of resolving conflicts that can be handled as well or better outside the court, to establish priorities for expending judicial time, and to improve the judicial process.
Therefore, the recommendations will be geared toward front end practices that reduce the number of cases brought before the court, on-going practices that expedite and improve the quality of the hearings, and back end practices that humanize and facilitate the transition from the child protection system.
1. The court should screen out as many cases as possible without jeopardizing the safety and wellbeing of the children. This process may entail referrals to community-based programs and services to assist the families in resolving their problems without the supervision of the child protection court or agency. Assessment instruments should be developed and guidelines for such referrals adopted.
2. Case managers should handle cases brought into the court from their inception to the point at which the court’s supervision is no longer required. If parental rights are terminated, the case manager should oversee the case through adoption or legal guardianship. While working collaboratively with the caseworker on each case, the case manager’s function would include tracking the cases within the court, coordinating with the judge’s calendar, conducting pre-hearing conferences, arranging for referrals to services provided by the center, and monitoring compliance with ASFA timelines.
3. Preliminary, pre-hearing, and TDM conferences should be used to familiarize the families with the details of their cases and involve them and invited relatives, friends, and service providers in the effort to simplify and resolve the issues.
4. The center should institute an FGDM program to be used for neighborhood cases in which families can be empowered to design a family plan to deal with their problems, whether civil, criminal, PINS, delinquency, child protection, or non-judicial. Cases can be referred for FGDM at any stage of the proceeding. Lisa Merkel-Holguin, director of the National Center on Family Group Decision Making at American Humane might be contacted for technical assistance in setting up the program.
5. The judge should fulfill leadership responsibilities within the community and as its emissary to the outside judicial, legislative, and executive world. Aside from budgetary and legal concerns, the judge should be involved in court-related local concerns, such as recruiting attorneys to serve as counsel and convening meetings with community-based service providers to discuss issues surrounding services with families and foster parents, to identify gaps in service, and to develop resources. Judges also should meet with local school officials, parent associations, and other groups concerned with children.
6. The training of the judge, court manager, other center staff, practitioners, agency staff, and other stakeholders in the operation of the court should be on-going with respect to any new developments in the child protection system. There also should be refresher courses to maintain knowledge and skills on current operational practices. Stakeholders should be familiarized with the concepts underlying structured decision making and the risk factors that the agency considers in its assessment.
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7. Technology should be updated to meet increased demands on the court to share information with the child protection agency (ACS) and voluntary child care, service, educational, law enforcement, and other agencies. Judicial proceedings would be expedited by enhanced automated information systems, with appropriate safeguards to protect confidentiality.
8. The need for multi-year judicial assignments applies equally (if not more so) to a judge sitting in a child protection court in the multi-jurisdictional community justice center. The usual complexity of the Article 10 cases and the possibility that there might be cross-over cases involving more than one type of legal charge affecting the members of the family compound the necessity for an experienced, highly skilled, and well-trained judge presiding over the court. It also highlights the need for an automated system to implement the one judge/one family concept inherent in the community justice center.
9. Full hearings and full findings are essential elements in providing due process of law to the families appearing in the court. The tendency of courts with heavy calendars and caseloads to rubber stamp the reports and recommendations submitted by the agencies is exacerbated by court-assigned counsel with equally heavy caseloads and schedules who may fail to offer alternative pleadings of the facts and proposals presented by the agency. The court has a duty to challenge the claims before it in its periodic status reviews.
10. Written information about the function and procedures of the court process should be prepared in clear and simple language (in English and Spanish versions) in pamphlets for distribution to the families appearing in the court. Forms also should be as simple and clear as possible. Clerical staff should be available to assist the families. A loose leaf bench book should be kept current for the judge. Handouts describing revisions in forms and procedures should be provided to counsel when they enter an appearance.
11. When an older child is the subject of a proceeding, the court should inquire periodically into the steps that the agency has taken to prepare the child for the time at which he or she will “age out” of the supervision of the child protection system. These older children are at the back end of the system. Few are considered adoptable. Most of them have not been properly prepared for their impending emancipation. Many have suffered multiple changes in placements and are living in group homes rather than with foster families because they have become difficult to handle. Although there are numerous statutes, rules, regulations, and programs providing for independent living or transitional preparation, they seem not to have had an impact. Without the support of a family, home, job, education, money, or the basic skills needed to survive in the outside world, many of the aged out youth find themselves in serious trouble. Judges have been lax in performing their duty to direct the agency to provide appropriate preparation.
In response to this problem, the FGDM Oversight Committee of the Los Angeles County Dependency Court designed an Emancipation Conference protocol. The coordinator seeks out extended family members, friends, teachers, service providers, or others who are willing to be part of the juvenile’s Circle of Support, followed by intense efforts to encourage the juvenile to think about short term and long term goals. The coordinator next investigates the availability of community resources to help achieve those goals.
The Emancipation Conference differs from FGDM conferences by focusing on the youth’s goals. Instead of family alone time, the Circle of Support and the coordinator (who serves as facilitator) works with the juvenile to design an Emancipation Plan that spells out the short term and long term goals, the persons and resources to assist in achieving each goal, and a timetable for each of the steps leading to them. The caseworker is responsible for implementing the initial service aspects of the plan, with a member of the Circle of Support monitoring the total process.
If the community justice center establishes an FGDM program, the staff would coordinate, facilitate, and provide oversight of the Emancipation Plan.
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