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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 [email protected]

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challenges for the future of legal advocacy for children and families

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 [email protected]

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)

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

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?

ija aba standards relating to abuse neglect 1977 78
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

“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
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

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”
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
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
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

what child welfare court intervention looks like
What Child Welfare Court Intervention Looks Like


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

participants in the process
Participants in the Process



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


issues typically resolved
Issues Typically Resolved


Validity of allegations

Who will have custody of child, if allegations are proven


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



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

children s dependency attorneys caseloads
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!

children s dependency attorneys compensation
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

today s challenges for lawyers
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

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)

Evaluate quality/scope of child, parent, & agency legal representation

what are states doing to enhance representation
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

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

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)

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

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

crucial future reforms
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)

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

what child advocacy law field needs the most
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