Youth in foster care deserve a voice in court

Dave Jones, a California Democrat, recently introduced legislation to bring foster children into the court hearings that decide their fates after allegations of abuse and neglect.

This bill was designed to address Broken Families, Broken Courts reports that, throughout California, hearings in the courts that oversee the foster care system are often held without the child present.

As its author states: "This bill sends a strong message that kids need to be a more integral part of the system."

Current law gives children the legal right to attend but does not require officials to make a strong effort to get the children there.

This is a terrible oversight because youth people have a very strong viewpoint about what is and is not working in the child welfare system, and can thoughtfully articulate their own interests.

Jones' bill, AB 3051, requires all California judicial officers to postpone hearings if children 10 years old and older have not been properly notified and offered the chance to attend.

Some lawyers are hoping that the language of this bill will be revised so that any children ages 4 years old and older will be able to attend.

One key proponent of this revision is Leslie Heimov, executive director of the non-profit Children's Law Center of Los Angeles.

Her reasoning is that, "For older kids, there's a benefit to the child, but for younger kids there's a benefit to the court. They bring the case alive. They're ruling on a person, not a piece of paper."

Jones said alterations of his bill are expected, and that he intends the age reference to be "a floor, not a ceiling."

Culture Change
In order for this bill to have an impact, a significant culture change will be required in many California courts. Some judges and lawyers believe children can be disruptive, or shouldn't miss school to attend court. Others fear they will be bored or traumatized by things they hear.

I agree with Presiding Judge Michael Nash of the Los Angeles Juvenile Court: "Children are the most important persons in our process. And they should be seen and heard."

Source:
de Sá, Karen. Bill would strengthen kids' voices in foster care court: Bill would require they're told about right to attend hearings. Mercury News, March 7, 2008.

National CASA Association

The National CASA Association knows that, in dependency courts, a child's health and safety should be the primary concern.

A recent audit conducted by the US Department of Justice Office of the Inspector General demonstrated that the involvement of a CASA volunteer can keep children from languishing in long-term foster care or reentering the child welfare system.

According to this audit:

- All or most of CASA volunteer recommendations are accepted in four out of five cases.

- When a CASA volunteer is assigned, a higher number of services are ordered for children and families.

- Children with a CASA volunteer are more likely to be adopted.

- A child with a CASA volunteer is as likely to be reunified with their birth parent as a child without a CASA volunteer.

- With a CASA volunteer, the likelihood that a chilld will reenter the child welfare system is consistently reduced by half.

Legal representation for young people in the child welfare system

The United States spends one hundred billion dollars each year on the protection of children. There are six million allegations of abuse and neglect annually, leading to approximately 1500 deaths each year.

An estimated 70% of children who enter the child welfare system wind up in long-term foster care until they are legally emancipated. Their childhood is largely spent going in and out of various placements, depending upon what court proceedings determine is in their “best interests.”

The American Bar Association defines a child’s attorney as: "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due to an adult client."

Children in the child welfare system have a vested interest in their personal safety, as well as a right to be provided with safe living conditions --- and these fundamental liberty interests are separate and distinct from the interests of parents, guardians or the state.

Unfortunately, children in abuse and neglect hearings often do not receive quality legal representation that allows them equal access to justice so that their voices are heard in a court of law.

- In 1967, the Supreme Court first recognized children’s right to counsel during legal proceedings.

- In 1974, Congress passed the Child Abuse and Neglect Prevention and Treatment Act (CAPTA), mandating that states appoint a guardian ad litem for children who are subject to abuse and neglect proceedings.

Court-appointed special advocates (CASA) and lay Guardians Ad Litem (GAL) can be valuable sources of support for young people, but they cannot substitute for independent counsel for the child.

- In 2006, First Star conducted a nationwide analysis of child representation laws, which revealed glaring anomalies in the legal representation provided for children.

According to First Star’s National Report Card on Legal Representation for Children, there are glaring anomalies in the legal representation provided for children.

While some locations do a good job, most do not, and the quality of assistance provided for children depends largely upon the zip code in which the child happens to live. In some cases, economically disadvantaged states do a better job than more affluent ones.

Meanwhile, because “Best Practices” are not shared with the vast majority of the country, it is as if they did not exist. Due to a lack of oversight and shared expertise, individual jurisdictions do not learn from the successes and failures of their peers.

Minimal direction by federal statutes has allowed states to interpret the law and construct their own models of practice. The duties and responsibilities of attorneys for children are not clearly defined. States don’t even use the same statutory language.

I agree with the authors of this study, who believe that each state should:
1.) Provide a competent, independent attorney for every child in child welfare proceedings.

2.) Mandate child advocacy training and hold child attorneys accountable

3.) Require that this attorney advocate for the child in a client-directed manner

4.) Give the child notice and allow the child to be present at legal proceedings

5.) Specify that juveniles have the right to continuous counsel by the same lawyer at all proceedings

I share their hope to initiate a national Call to Action, promoting laws to require consistency in providing trained, qualified, client-directed legal counsel to child victims throughout the nation.

We need to identify and highlight Best Practices across the nation regarding legislative, professional, judicial, sociological and governmental behavior towards abused and neglected children.

For more information, and to see how your state measures up, please visit: 

http://www.firststar.org/documents/Final_RTC_2nd_Edition.pdf

Sources:
First Star’s National Report Card on Legal Representation for Children, 2006.
Bob Fellmeth, Child Rights and Remedies, 2002.