Marvin Ventrell
Legal and Judicial Engagement
Introduction: The Family and the Government
Child welfare law and the child welfare court systems are the outgrowths of centuries of
developing and defining the legal relationship between children, their families, and the
government. This development reflects the views of society and lawmakers on whether
and how the government ought to intervene in the private lives of children and families.
The family exists in American society today as a largely autonomous social unit.
It is not created by the government and, absent extraordinary circumstances, it cannot be
terminated by the government. It is largely a myth that the government has broad and
extensive authority to intervene into family life for the purpose of regulating the
treatment of children or substituting its judgment for that of parents. To the contrary, the
right to parent children as a family chooses (the right of parentage) is subject to
fundamental constitutional protections. It can only be removed after a showing, by clear
and convincing evidence, that a parent is unfit. And an unfitness determination can only
occur following a threshold judicial finding of abuse or neglect. This is a considerable
prerequisite to governmental intervention.
The best interests of the child (best interests) is indeed the guiding standard by
which judicial placement of a child is governed. However, the government does not have
authority to regulate best interests unless there is first a finding of abuse and neglect.
This threshold requirement prevents the government from ever intervening into the lives
of the vast majority of American families.
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Family autonomy is, therefore, an ideological foundation of child welfare law.
Such autonomy exists not only before the state intervenes in the family, but also as a
guiding principle once intervention is authorized by abuse or neglect. The federal law, as
expressed in the states’ child welfare codes, requires the government to preserve the
family by avoiding removal of children and by prioritizing reunification of children with
the family so long as the children’s safety can be assured.
The child welfare professional operates, therefore, under a special exception to
the general rule of law that the government may not intervene in family matters. Without
this child maltreatment exception, the child welfare professional would not be authorized
to intervene and bring a matter before the court system. This is the context under which
child welfare work is conducted.
Incidence of Maltreatment
Despite the fact that most American children and families will never be involved
in the child welfare system, the number of system-involved children is significant.
Approximately 408,425 children live in foster care (Child Welfare Information Gateway
2011). It is estimated that court action occurs in approximately 43% of cases, involving
over 53,000 children (National Resource Center for Permanency and Family Connections
2011). In 2010, approximately 65,000 children experienced the termination of parental
rights (U.S. Department of Health and Human Services 2011). The significant numbers
of children involved in the child welfare system is a relatively modern condition that did
not come about until the child welfare movement of the 1970s. It is instructive for the
child welfare worker to understand how the current system developed.
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Development of Child Welfare Law and the Juvenile Court System
A. A Legal-Judicial Model
The American child welfare system follows a legal-judicial model. This means
that the rights and obligations of children, caretgivers, and the government (and each of
these parties’ agents) are defined by our laws and our judicial system. The juvenile
courts function as the oversight authority and arbitrator of child welfare controversies.
This is not necessarily true of other countries or other systems within the U.S., such as
the health care system.
Americans, however, tend to be rights-based thinkers, and value autonomy vis-àvis the government, particularly where the family is concerned. The view that
government needs to be checked and limited is deeply rooted in the American
perspective. So it should not be surprising that Americans have viewed government
involvement with family matters as a potential infringement on their rights, which must
be defined by laws and managed by courts.
The Adversarial Advocacy System
The juvenile court dependency system, consistent with the U.S. judicial system
generally, is an adversarial system where parties, typically through their lawyers,
confront the court with competing interests. The adversarial system is premised on the
notion that just outcomes flow from a process where competent lawyers advocate
zealously for clients’ interests.
The legal system is a process-based system more than it is an outcome-based
system. The legal system does not presume to know what is best for parties, but rather it
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is committed to giving voice to competing interests in the belief that the process, not
preconceived notions of the best outcome, will produce justice. The Gault decision is a
powerful illustration of this point. The Gault Court found that the history of the juvenile
court to that point was an outcome-based system under the “benevolent intentions”
approach that disregarded process in order to accomplish a preconceived end. The Court
concluded that children were disserved by the outcome-based system.
However, the child welfare/dependency component of the juvenile court in the
21st century is still a specialized court with unique rules and procedures compared to
traditional, general jurisdiction American courts. With rare exceptions, judges rather than
juries determine outcomes. Judges are more likely to be proactive and take a role in the
process in child welfare court, by asking questions of the witness for example.
Evidentiary standards that make it difficult to admit certain evidence in general
jurisdiction courts are typically loosened in child welfare court. Case worker reports, for
example, are frequently taken into account even though they would be excluded as
hearsay under the law of evidence. These evidentiary rules are particularly relaxed at the
dispositional phase of a child welfare proceeding.
The Role and Duties of Legal Counsel
An adversarial system depends on competent advocates who allow the court to
appreciate individual clients’ interests and reach just outcomes. In child welfare
proceedings, it is imperative that each of the primary parties—the child, the parents, and
the agency—has competent legal counsel. These lawyers’ basic function is to provide
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competent legal advocacy for their clients, just as any other lawyer would, despite the
unique circumstances and procedures of the juvenile court.
A. Child’s Counsel
There is no conclusive constitutional authority mandating that children in child
welfare cases are entitled to appointed legal representation (Haralambie 2011). There is a
consensus in the child welfare policy community that children should be provided
independent legal counsel because it benefits the child and the system. Lawyers for
children can ensure that the children’s perspective and interests are brought to the court’s
attention. Lawyers can also be instrumental in expediting cases and promoting the
child’s interest in a permanent resolution.
CAPTA provides that a representative, who may or may not be a lawyer, must be
appointed for every child. The CAPTA representative is called a Guardian ad Litem
(GAL), and he or she is required to represent the best interests of the child. States then
choose who will serve as a GAL and whether other representatives, such as a Court
Appointed Special Advocate (CASA) or traditional (non-“best interests”) lawyer, will be
appointed.
The majority of U.S. jurisdictions appoint a lawyer to serve in the role of the
GAL, while other states allow non-attorneys to fill this role (Duquette 2011). A minority
of jurisdictions appoint a lawyer to serve the role of a traditional attorney, rather than a
GAL. Proponents of an attorney model of representation argue that otherwise the child is
disadvantaged by a lack of legal advocacy.
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When a lawyer is appointed as a GAL, the lawyer serves in a hybrid role of legal
counsel with an emphasis on the child’s best interests. The reasoning underlying this
model is that children, due to their immaturity, are not capable of directing their lawyer
the way an adult would. This can cause confusion and may pose ethical dilemmas.
Lawyers, as a general rule, are charged with representing the wishes of the client and not
substituting their own judgment about what they believe to be in their client’s best
interests. Zealous advocacy of a client’s position is a cornerstone of the practice of law.
The lawyer in the role of a GAL, therefore, can face a difficult ethical dilemma when the
client’s wishes conflict with the lawyer’s view of the child’s best interests. In such cases,
lawyers can resolve the problem by counseling the client and relying on ethical standards.
Additionally, the traditional ethical obligation of keeping a client’s confidence
may be more complicated when a lawyer serves as GAL. Because a GAL is required to
represent a client’s best interest, the lawyer may encounter a situation where he or she
needs to reveal something that the child told the lawyer in confidence in order to do so.
The contradictions that result from placing a lawyer in the role of a GAL have
been part of an omnipresent and unresolved debate in the child advocacy legal
community for many years. The debate centers on the question of whether lawyers for
children should represent the child’s best interests or the child’s expressed wishes. There
tends to be agreement that children need independent legal representation, but that a
traditional attorney model is not fully appropriate for children. Increased child welfare
lawyer training and education, combined with the development of ethical standards and
guidelines specifically adopted to dilemmas faced by lawyers who represent children,
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will help the lawyer for the child achieve the crucial balance between providing legal
advocacy and protecting the child client.
B. Parent Counsel
Some parents retain private legal counsel to represent them, but many parents in
child welfare cases are indigent and receive appointed counsel. State law determines
whether, and at what stage, a lawyer is appointed to a parent. The Lassiter case provides
some constitutional parameters for states in making this determination. Competent legal
representation of all parties, including parents, is essential to ensuring fairness throughout
the process.
Counsel for the parent serves the traditional role of a lawyer, with a duty to
provide competent and zealous advocacy for his or her client. Because parents have a
fundamental constitutional liberty interest in parenting their children, the parent attorney
has a critical responsibility to the client and the system.
C. Government Counsel
Agency counsel is charged with the powerful responsibility of “prosecuting” the
child welfare case. Agency counsel typically initiates the case by filing the petition. It
then has the burden to prove the allegations, while serving the system goals of child
safety, family preservation, timeliness, and permanence.
Agency counsel can typically be classified as falling into one of two general
categories, or models, as defined by state law. Under the “Prosecutorial Model”, the
attorney represents the people of the jurisdiction, just like a prosecutor in a criminal case.
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This means that the agency attorney has the authority and responsibility to make
prosecutorial decisions in the interests of the people. These lawyers are typically the
District Attorney, County Attorney, City Attorney, or Attorney General. Under the
“Agency Attorney Model”, the attorney represents the state child welfare agency and
must follow the direction of the agency. Agency attorneys are typically employed by the
state child welfare agency. In this model, the caseworker assigned to the case serves as
the voice of the agency client. This is an important distinction for the child welfare
worker. Even under the “Prosecutorial Model”, however, the department should have a
voice in the prosecution of the case. Attorneys in both the “Agency Attorney” and
“Prosecutorial” model should value the position of the agency as expressed by the
caseworker.
D. Standards of Practice
1. State Regulatory Standards
The conduct of lawyers, including the role and duties of a lawyer in relation to a
specific client, are governed by the American Bar Association Model Rules of
Professional Conduct (ABA Model Rules) adopted by each state. The ABA Model Rules
describe a lawyer’s duties of advocacy, competence, loyalty, and confidentiality, among
others. An instructive provision of the ABA Model Rules, particularly for the child’s
counsel, is Rule 1.14 on “Representing a Client with Diminished Capacity.” Additional
authority for the child welfare lawyer may exist in state statutes (appointment statutes),
state or local court rules, or special state ethics standards or guidelines.
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2. Instructive Authority
The American Bar Association has passed three sets of ethics standards for
lawyers who work in child welfare. These standards are not binding authority unless they
have been adopted by the state. They are the products of years of child welfare
community input and collaboration and can be very instructive in handling ethical
matters. The three sets of ethics standards are the ABA Standards of Practice for Lawyers
Who Represent Children in Abuse and Neglect Cases (1996), the ABA Standards of
Practice for Lawyers Representing Child Welfare Agencies (2004), and the ABA
Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases
(2006).
The Relationship between Social Workers and Attorneys
The social worker is frequently forced to adapt to this attorney-driven adversarial
system, which may seem needlessly complex and even contrary to the best interests of
the child and the family. For example, a parent may be hostile or uncooperative because
of the perception that the social worker is an opponent, or a social worker who has been
assisting a struggling parent may be required to effectively testify against the parent at a
TPR (Weinstein 1997). From the social worker’s perspective, the legal system’s
emphasis on fair processes and procedural protections may seem to interfere with the
ability to reach the “correct” outcome.
The historical development of the juvenile court helps explain why, from a
lawyer’s perspective, the adversarial system is generally superior to the alternatives. But
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that does not mean that social workers must act more like lawyers, or that lawyers must
act more like social workers. It does mean, however, that they must cooperate despite
their sometimes contradictory views of what is causing the problem at hand and how best
to resolve it.
Commentators emphasize the need for cooperation and respect between attorneys
and social workers, but there may be different ways of achieving these goals depending
on the context and the personalities involved. It may be beneficial to clearly distinguish
the responsibilities of each party to reduce the opportunities for conflict (Laver 2011).
Yet lawyers cannot prepare effective legal arguments without understanding the facts
behind the dispute, which often requires frequent and open communication with the case
worker.
As mentioned above, attorneys are still grappling with how best to represent the
interests of the child client. Social workers are often in the best position to gather
information from the child and explain his or her perspective. They can use their abilities
and experience to help the lawyer communicate with the child and understand what
course of action is in the child’s best interests (American Bar Association date). The
social worker can communicate the specific story of an individual or family in a legal
system that may seem cold, impersonal, and unconcerned with the circumstances of each
case. This will improve the quality of legal advocacy, even if it does not bring the goals
and perspectives of the attorney and the social worker into harmony.
The Court Process
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A child welfare case proceeds through the court system in the following stages or
phases, with some variation. The child welfare caseworker must appreciate the purpose
of each phase and his or her role in it. Good communication and preparation between the
agency attorney and caseworker is especially critical in navigating these phases.
A. Emergency Removal Hearing
Cases are initiated by the filing of a petition that can either precede or follow the
emergency removal of a child. Sometimes a child is not removed, but rather allowed to
remain in the home. Where removal occurs, an emergency removal hearing is held.
These are also called detention, shelter, or preliminary hearings, and they typically must
occur within 72 hours of removal. These hearings are sometimes preceded by an order
(usually obtained ex parte) that authorizes the removal of the child. At this phase, the
agency must typically prove that there is abuse or neglect, or danger of abuse or neglect,
by showing probable cause or prima facie evidence (the lowest standard of proof).
B. Adjudication
Sometimes called jurisdiction, adjudication is the phase where the agency must
prove, usually by a preponderance of the evidence (an intermediate standard of proof),
that the child is dependent due to abuse or neglect. This is the stage that most resembles
a traditional trial in terms of the calling of witnesses and presentation of evidence. The
relevant issue is the conduct of the parent(s) prior to the filing of the petition.
C. Disposition
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If a child is adjudicated dependent, then the court may proceed to disposition,
which generally immediately follows adjudication. At this phase the agency must,
typically by a preponderance of the evidence, show what is in the child’s best interests
regarding the child’s current placement, the terms of contact between parent and child,
and the services to be provided to parent and child.
D. Case Planning
While not a hearing, case planning meetings are held to produce the federally
required case plan. The parents and the child are entitled to participate.
E. Review Hearings
Review hearings must be held at least every twelve months. The court determines
whether the child is safe, what changes should be made to assure safety, and whether the
child can be returned home.
F. Permanency Hearings
ASFA mandates that a permanency hearing be held within 12 months of the time
a child enters care. The purpose of a permanency hearing is to select the appropriate
permanency plan for the child. Plans may include permitting the child to return home,
termination and adoption, guardianship, or other permanent placements with relatives.
Permanence hearings must be held at least every 12 months. If a court determines that
reasonable efforts are no longer appropriate, the court must hold a permanency hearing
within 30 days.
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G. Termination (TPR)
TPR is a formal traditional court hearing similar to adjudication. ASFA requires
states to terminate parental rights, as a general rule, when the child has been in foster care
for 15 of the most recent 22 months, is an infant who has been abandoned, if the parent
has killed a sibling, or other egregious circumstances exist. TPR is optional where the
child is in relative care, the agency shows compelling reasons why TPR is not in the
child’s best interests, or the state has not provided necessary services to the family. To
achieve TPR, the state must prove unfitness through failure to comply with a
reunification plan by clear and convincing evidence (the highest civil standard of proof).
States also typically require a showing that TPR is in a child’s best interests.
H. Post-Termination Review
Post-TPR review hearings are required if a child has not been immediately
adopted. The court must determine that adequate services are being given to the child, a
realistic placement plan is being aggressively pursued, and educational stability is
ensured.
I. Adoption
Adoption or legal guardianship is the final stage of child welfare court
proceedings. Courts are typically required to make findings that the child is free for
adoption and that the proposed adoption is in the child’s best interests. Adoption may be
seen as a proceeding outside the parameters of the child welfare case.
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Reform Efforts
Not surprisingly given the challenges described in this chapter, there are
numerous proposals to reform the child welfare court. Hardin has proposed reforms
designed to ensure that all phases of the process are completed in a timely manner, that
the parties are guaranteed complete and in-depth hearings, that judges and attorneys are
skilled and knowledgeable, that courts and agencies coordinate their efforts, that
technology is used effectively, and that all parties before the court are treated properly
(Hardin 2002). Increasing the coordination between courts and agencies is likely the
most relevant, and one of the most frequently cited, of these reform efforts.
Some states have emphasized coordination in their Program Improvement Plans
(PIP) in response to federal Child and Family Service Reviews (CSFRs) or through their
Court Improvement Plans (CIPs) (Fiermonte 2005). Increased collaboration can be
fostered through cross-disciplinary training, meetings and working groups, and sharing
information so that courts are aware of the services available and agencies are aware of
changing court procedures (Hardin 2002). Cooperation also has positive effects on other
areas where many commentators agree that reforms are needed. For example, improved
communication may further goals like timeliness and permanence, and attorneys and
judges can become more knowledgeable through increased exposure to other aspects of
the process and different perspectives. Some jurisdictions have experimented with
moving toward a “One Family/ One Judge/ One Treatment Team” model since continuity
and an integrated approach is thought to improve outcomes (Flango 1999). Coordination
between courts and agencies may have similarly positive effects even if it is not feasible
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to create a unified family court or ensure that the same judge hears all cases regarding a
particular family.
Court System Evolution
The juvenile child welfare court is the product of years of evolution, yet it is far
from perfect. The system arguably serves children and families better than it ever has in
our history. Yet the system is still flawed because of a lack of resources, excessively
high worker caseloads, inadequate professional compensation and professional training,
and the overrepresentation of children and families of color. Poverty has been part of the
child welfare system from its origins in Elizabethan England, and it is still with us.
Our law has evolved, however, to provide better and fairer processes for both
children and families. Reform efforts from the government and private agencies continue
in the areas of professional education, training and development, system measurement,
system accountability, and system reform. In addition to performing well at his or her
job within the system, the child welfare worker can take his or her experiences to the
policy level and be part of the history of child welfare law and the juvenile court system
as it progresses.
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