Child Law Practice Vol. 28 No. 6 August 2009 Helping Lawyers Help Kids ENGAGING Addressing Ethical Issues in the Representation of Nonresident Fathers Jennifer L. Renne s a lawyer representing nonresi- appointed to represent nonresident 3. The putative is named on Adent fathers in child welfare fathers by referencing the ABA the petition, but paternity has not cases, you deal with challenging Model Rules of Professional Con- been established. 1 ethical issues. For example: duct (MRs). 4. The father’s identity is unknown. „ When does your ethical and legal Appointment 5. There are multiple fathers for a obligation to your client begin sibling group (may a lawyer be Many courts around the country still and end? appointed to represent all the struggle with appointing qualified „ How should you represent a fathers?) counsel for all parents, and the rate father you haven’t heard from in of appointment for nonresident Under the first two circum- months? fathers is dramatically low. One stances, when the father’s identity „ Can you represent two fathers in study cites that nonresident parents and information is known, the same case? are appointed counsel approxi- or identity is known, but where- This article will focus on these mately half as often as other clients.2 abouts are not, you can be ap- and other ethical issues for lawyers Yet federally-supported research pointed. However, unless and until reveals that the participation and (Continued on page 86) involvement of nonresident fathers What’s Inside: About this Series improves outcomes. Even beyond 82 CASE LAW UPDATE This series gives attorneys and outcomes, children deserve the judges tools to better engage opportunity to form relationships 90 SUPREME COURT NEWS nonresident fathers in child welfare with their fathers. 91 LEGISLATIVE UPDATE A threshold ethical issue is cases. Article topics include: On the Benefits of a National whether mere appointment to a case 9 Putative Father Registry o Nonresident Fathers’ establishes a lawyer/client relation- Constitutional (Nov. 08) ship. Sometimes the court will ap- 92 CONFERENCE CLIPS o9 Representing Nonresident point a lawyer to represent the Extending to Age Fathers (Dec. 08) parent(s) at the preliminary hearing.3 21: Benefits, Costs, and Opportunities for States o9 Understanding Male Help- What are the ethical considerations Seeking Behavior (Jan. 08) for a lawyer in the following 94 IN PRACTICE circumstances: Racial Disparities in the Child o9 Involving Nonresident Fathers: Welfare System: Reversing Tips for Judges (Mar./Apr. 09) 1. The father’s identity and contact information, including address is Trends o9 Representing Incarcerated known, but the father is not 96 TECH TRENDS Fathers (June 09) present. Florida Turns to Handheld o9 (July 09) 2. The father’s identity is known, but Devices to Streamline Child o9 Ethical Considerations his whereabouts are unknown. Welfare Casework (this issue)

Vol. 28 No. 6 ecuring ABA ChildE-mail: Law [email protected] Practice —www.childlawpractice.org u Internet: http://www.childlawpractice.org 81 ABA Child Law PRACTICE CASE LAW UPDATE www.childlawpractice.org West Virginia Statute Does Not Favor Traditional in ABA Child Law Practice (CLP) pro- Cases vides lawyers, judges and other profes- State v. Blake, No. 34618 (W. Va. Ct. App. 2009). sionals current information to enhance An infant was born with cocaine in efforts to place the child in a tradi- their knowledge and skills, and im- her system, prompting tional home. The court also consid- prove the decisions they make on be- half of children and families. Topics and neglect proceedings against the ered new evidence by the agency include: abuse and neglect, adoption, mother. After receiving custody of supporting the child’s removal be- foster care, termination of parental the child, the child welfare agency cause the foster parents’ home was rights, juvenile justice, and tort ac- placed her in the foster home of a over the capacity limit. tions involving children and families. same-sex couple that was approved The court therefore ordered the CLP is published monthly by the ABA to foster and adopt. removal of the child from the same- Center on Children and the Law, a The child’s guardian ad litem sex couple’s home and placement in program of the ABA’s Young Lawyers (GAL) moved to remove the child the home of a married couple for Division, 740 15th St., NW, 9th Fl., from the foster home, arguing it was possible adoption. The court ex- Washington, DC 20005-1022. harmful to the child to be raised in a plained that while the foster parents’ Director: Howard Davidson homosexual environment. The home may be the most appropriate Associate Director: Robert Horowitz agency and the foster parents ob- adoptive placement, “. . . it is unfair jected. Following a preliminary not to allow the child the option to CLP Staff: hearing, the trial court chose not to be adopted by a traditional .” Editor & Designer: interfere with the foster placement The foster parents petitioned the Claire Sandt Chiamulera but reserved the right rule on the re- Supreme Court of Appeals of West 202/662-1724 moval motion and the GAL’s re- Virginia for a writ of prohibition and [email protected] quest after a full hearing. moved for an emergency stay of the Publications/Marketing Director: After the mother’s parental trial court’s removal order. The fos- Sally Small Inada rights were terminated, a ter parents claimed the trial court ex- 202/662-1739 [email protected] multidisciplinary team met to con- ceeded its authority when it re- sider the child’s future. The team moved the child from their home for Case Law Summaries: prepared a report recommending placement in a traditional home. Claire Sandt Chiamulera Scott Trowbridge that the case be transferred to the The appellate court granted the agency’s adoption unit and that the writ of prohibition. The agency Subscription Prices: child stay in the foster home during countered that removal was legally • $184 individual rate (payable by the adoption process. The report required because (1) the foster par- personal check only) also noted that it would be reluctant ents were not allowed to adopt as a • $219 institutional, agency, library, to remove the child from the only couple under the adoption statute, and law firm subscribers home she had known. The GAL was and (2) the number of children liv- Subscribe online: www.childlawpractice.org the only team member who objected ing in the foster parents’ home ex- Send check or money order, made payable to the: American Bar Association, 740 15th to the recommendations. ceeded the statutory limit. The Street, NW, Washington, DC 20005-1022 The agency’s permanency plan agency also said that a legislative stated that adoption was in the preference in the adoption statute Subscription Inquiries & child’s best interests and that the for adoption by married couples Address Changes: foster parents desired to adopt. At supported the removal. Call: Charles Teague, 202/662-1513 the permanency hearing, the GAL Regarding the first issue, the ap- E-mail: [email protected] again moved to remove the child pellate court explained that joint Copyright © 2009 American Bar from the foster home. After the par- adoption by unmarried parents was Association, ISSN 0887-896X ties presented their positions, the not at issue before the trial court in trial court held that it is in children’s the permanency hearings. The pur- The views expressed herein have not been best interests, when possible, to be pose of the permanency hearing was approved by the House of Delegates or the Board of Governors of the American Bar As- raised in traditional family setting to identify a placement that was in sociation, and accordingly, should not be consisting of a mother and a father. the child’s best interests and outline construed as representing the policy of the Nontraditional families, such as the a general course of action. It was American Bar Association. foster parents in this case, may only premature for the agency to recom- be considered appropriate to adopt mend a specific adoptive home at after the agency makes unsuccessful the permanency hearing and to 82 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 move forward with selection and ents and the impact of removal. The appellate court concluded placement before the agency’s Regarding the agency’s claim that the child’s removal was not sup- adoption unit became involved. Fur- that moving the child to a more tra- ported by any evidence of improper ther, the propriety of joint adoption ditional home furthered a legislative care or management of the foster was not under consideration at the preference, the appellate court home. There was never any evi- permanency hearing. found no statutory support for this dence presented regarding the qual- Regarding the overcapacity is- claim. West Virginia’s adoption stat- ity of the child’s relationship with sue as a ground for removal, this is- ute lists three types of people who the foster parents and the adoption sue was moot because the foster may adopt: an unmarried person, a statute could not be read to create a parents reduced the number of chil- married couple jointly, and an indi- preference for adoption by a tradi- dren living in their home. However, vidual in whose spouse tional family. The foster parents, the appellate court criticized the consents. It gives no priority to ei- who had care for the child for her agency for raising this issue at the ther type of person who seeks to first 11 months of life and formed a last minute, without first considering adopt and offers no preference for close bond with her, deserved the if the child’s best interests would be placements into “traditional homes.” opportunity to be considered, if not met through removal, that the child The appellate court stressed that the favored, as the prospective adoptive had been placed with the foster par- primary concern of courts in adop- home. The court therefore granted ents before some of the other chil- tion cases is whether the adoptive the foster parents motion for a writ dren, or evaluating the bond the home can meet the child’s needs of prohibition to prevent the child’s child had formed with the foster par- now and in the future. removal from their home.

Adult Who Sought Post-Adjudication Habeas Corpus Relief Relating to His Commitment as a Juvenile Lacked Right to Counsel In re Hall, 2009 WL 1639751 (Tex.). A juvenile was adjudicated delin- was adjudicated for committing de- offenders have a right to counsel in quent in juvenile court for commit- linquent conduct as a child, even af- specific proceedings under the Juve- ting capital murder when he was 14 ter the person reaches the age of nile Justice Code, but argued that years old. He was sentenced to 40 majority. The person’s age when he post-adjudication habeas corpus years confinement and served his committed the delinquent acts deter- claims are not included. It cited the sentence at the Texas Youth Com- mines jurisdiction, not the person’s Code’s provision, which refers only mission facility until he turned 18 age when applying for habeas cor- to “habeas corpus proceedings chal- when he was transferred to an adult pus. Thus, the juvenile court re- lenging the legality of [the child’s] prison. tained jurisdiction over the defen- detention” and stressed that “deten- Seven years after his transfer to dant since he was 14 when he was tion” refers to pre-adjudication con- adult prison, the defendant filed a adjudicated delinquent. finement, not post-adjudication motion with the juvenile court re- The supreme court considered commitment. questing court-appointed counsel to whether the Juvenile Justice Code The supreme court agreed with help him pursue post-adjudication gives a mandatory right to assis- the state and explained that “deten- habeas corpus relief. He argued he tance of counsel to an adult who tion” is the period of temporary cus- was entitled to counsel under the Ju- pursues post-adjudication habeas tody preceding the child’s adjudica- venile Justice Code. corpus relief relating to his commit- tion. The provision cited by the de- The juvenile court denied his re- ment as a juvenile defendant. fendant did not apply in his situation quest, prompting him to seek man- The defendant argued that the since he was not challenging the le- damus relief in the court of appeals. Code expressly gave him a right to gality of his detention. Rather, his The court of appeals also denied re- counsel during every stage of the habeas corpus proceeding chal- lief, explaining that he was not en- proceedings, including habeas cor- lenged the legality of his commit- titled to counsel under the Juvenile pus proceedings. He cited a Code ment after his adjudication and sen- Justice Code because he was no provision granting representation in tencing, a situation the Code did not longer a child. The defendant then eight stages of proceedings, includ- address. sought mandamus relief in the Su- ing “habeas corpus proceedings The juvenile court therefore preme Court of Texas. challenging the legality of detention properly denied the defendant’s mo- The Supreme Court of Texas af- resulting from action under this tion for appointment of counsel. firmed. In Texas, a juvenile court re- title.” tains jurisdiction over a person who The state agreed that juvenile

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 83 CASE LAW UPDATE continued Research performed on Westlaw compliments of West Group. Alabama and specific statutory section requiring a resulted from adverse actions of the child hearing to determine another permanent welfare agency, such as failing to inform In re H.C.L., 2009 WL 1425985 (Ala. Civ. plan for child made no exception to the her of medical appointments, there was App.). DEPENDENCY, EMERGENCY rule. competent evidence that child was PETITIONS dependent because mother lacked Where grandmother alleged that child was Connecticut knowledge or ability to address her child’s neglected due to mother’s possession of In re Lyric H., 970 A.2d 782 (Conn. App. medical needs. controlled substances, homelessness, and Ct. 2009). TERMINATON OF PARENTAL failure to seek care for child’s medical RIGHTS, CONFLICT OF INTEREST Indiana condition, trial court wrongly concluded Trial court was not required to inquire In re H.T., 901 N.E.2d 1118 (Ind. Ct. App. it lacked jurisdiction to hear maltreatment about potential conflict of interest on the 2009). TERMINATION OF PARENTAL allegations; fact that custody had been part of child’s attorney who recommended RIGHTS, BEST INTERESTS previously determined through a termination even though there was Trial court erred in finding that continua- action did not deprive the court of testimony that the child was upset about tion of parent-child relationship threat- jurisdiction because dependency jurisdic- the prospect of termination and wanted to ened well-being of child in termination tion is warranted when a person files a live with her mother, father, grandmother, hearing; though father was incarcerated petition presenting sufficient facts to or foster mother; though trial court has a on unrelated matters when child was first establish abuse or neglect. duty to inquire about potential conflicts removed from mother and placed in a of interest, the duty did not arise since no relative’s home, father tried to maintain California timely objection was made and there was contact with child through letters, took In re K.B., 2009 WL 1314725 (Cal. Ct. nothing to put the court on notice that advantage of educational opportunities App.). TERMINATION OF PARENTAL there was a conflict. and substance abuse services in prison, RIGHTS, ICWA and promptly sought to begin a service Trial court properly determined that Delaware plan after release. active efforts under the Indian Child State v. Fletcher, 2009 WL 1524937 Welfare Act (ICWA) were not required (Del.). DELINQUENCY, ABUSE Maine before removal because they would be REGISTRIES In re Trever I., 2009 WL 1620422 (Me.). futile since father was a repeat sex Trial court properly held that juvenile TERMINATION OF PARENTAL RIGHTS, offender and no services could have who had delinquency record expunged ICWA allowed children to remain safely in the was not required to remain on sex abuse Where father stated at beginning of case home, active efforts were previously made registry; registry statute was silent on that he had Indian heritage but provided in earlier case involving mother where she effect of expungement, but expungement no details and a letter was returned from successfully reunified, and any error in statute nullifies delinquent record and all the Bureau of Indian Affairs stating it not applying ICWA provisions was evidence thereof, making it inappropriate could not determine father’s eligibility for harmless because tribe said it would to continue juvenile’s listing in state tribal membership, court properly denied provide the same services. registry. father’s motion to continue when three years later he finally specified he had In re R.M., 93 Cal. Rptr. 3d 316 (Ct. App. Jacks v. Div. of Family Servs., 2009 WL Cherokee ancestry in termination pro- 2009). DEPENDENCY, SUPERVISION 1349698 (Del.). TERMINATION OF ceeding; considering all circumstances, Evidence did not show mother failed to PARENTAL RIGHTS, CHILD’S WISHES court could find father lacked credibility adequately supervise children who Family court properly considered and the did not admitted engaging in sexual conduct with children’s wishes in granting petition to apply. each other to sustain dependency petition terminate parental rights after considering where mother told children to stop the that stances of all four children taken Maryland behavior as soon as she learned of it and together did not weigh for or against In re Najasha B. 2009 WL 1578923 began locking the daughter’s bedroom termination and were therefore neutral in (Md.). DEPENDENCY, PETITIONS door as a preventive measure; evidence analysis of best interests; fact that two Where agency filed dependency petition also did not show behavior occurred children were neutral about returning alleging child had been left unsupervised frequently or continued after mother home with mother, one adamantly did not in home with illegal drug activity and intervened. want to return, and one was too young to later sought to dismiss petition after weigh in, did not weigh against granting reaching an agreement on a safety plan, In re S.B., 2009 WL 1475272 (Cal.). termination. but where child objected to dismissal DEPENDENCY, APPEALS through counsel, court should have held Postdispositional order finding child was Florida adjudicatory hearing on the petition; difficult to adopt and requiring a search In re D.J., 2009 WL 1260109 (Fla. Dist. primary purpose of dependency statute is for an adoptive family without termina- Ct. App.). DEPENDENCY, MEDICAL serving best interests of child, thus agency tion of parental rights was appealable; TREATMENT lacks a unilateral right to dismiss a statute generally allows appeal from Despite fact that many of the reasons petition when another party, including the dispositional and postdispositional orders mother was unfit to parent her child child, objects.

84 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 Call 202/662-1724 for a copy of any case reported here. Missouri New York Rhode Island In re M.N.J., 2009 WL 1851181 (Mo. Ct. In re Jaiheem M.S., 2009 WL 1406615 In re Alexis L., 972 A.2d 159 (R.I.). App.). DEPENDENCY, ABUSE (N.Y. App. Div.). TERMINATION OF TERMINATION OF PARENTAL RIGHTS, Juvenile court erred in finding children PARENTAL RIGHTS, FAILURE TO PLAN HEARSAY had been abused based on parental Evidence supported termination of In termination of parental rights proceed- discipline with a belt that caused no mother’s parental rights based on her ing, statement child made to foster mother physical injury; though parents might failure to plan for children’s future; about past abuse by biological mother have had mental conditions that could mother was unable to address children’s was inadmissible under hearsay exception have supported the abuse finding, medical needs, did not take for out-of-court statements made by juvenile court should have waited for classes to learn how to address one child’s children concerning physical abuse; results of parents’ psychological evalua- special needs, and programs she did statement was made three months after tion if risk of abuse was the primary basis complete did not demonstrate ability to child began living with foster mother and of the finding rather than prior physical plan for children’s future. was therefore not made within reasonable abuse. time after alleged abuse. New Jersey Mississippi New Jersey Div. of Youth & Fam. Servs., In re Peter S., 2009 WL 1717020 (R.I.). McCraw v. Buchanan, 2009 WL 1199164 2009 WL 1323638 (N.J. Super. Ct. App. TERMINATION OR PARENTAL RIGHTS, (Miss. Ct. App.). Div.). TERMINATION OF PARENTAL REASONABLE EFFORTS GUARDIANS AD LITEM, FEES RIGHTS, MENTAL ILLNESS Child welfare agency was not required to In a custody case involving allegations of Mother suffered from schizophrenia, make reasonable efforts to reunite father abuse and appointment of a guardian ad bipolar disorder with psychotic features, with his three children before terminating litem for the child, trial court did not and had history of multiple severe his parental rights where termination abuse its discretion in apportioning delusions warranting termination of her petition was based on father’s cruel representation fees equally against mother parental rights; further, mother’s relation- violent actions against one child; agency and grandmother as there was no evidence ship with child was superficial, such that has no obligation to attempt reunification that the determination placed an undue termination was unlikely to have harmful when parent’s right are terminated based burden on either party. effects whereas removing child from foster on cruel and abusive conduct. mother’s care was likely to result in S.G. v. D.C., 2009 WL 1477255 (Miss.). serious emotional harm. In re Pricillion R., 971 A.2d 599 (R.I. CUSTODY, SANCTIONS 2009). TERMINATION OF PARENTAL In proceeding, trial court Oregon RIGHTS, CHILD’S WISHES When determining whether to terminate erred by striking mother’s pleadings as a In re A.L.S., 2009 WL 1458957 (Or. Ct. father’s parental rights to child who had sanction after mother fled with child when App.). TERMINATION OF PARENTAL been in agency custody for more than 12 court granted unsupervised visits to father RIGHTS, FITNESS months, family court properly considered whom mother alleged sexually abused Mother’s inability to make long-term child’s desire for permanency when child; sanction improperly deprived child commitment to address her substance deciding child’s best interests, in addition of court’s protection by punishing mother. abuse supported termination of her to considering finding that father’s parental rights on ground of unfitness; chronic substance abuse rendered him Nebraska mother finished treatment program six unable to resume care of child in reason- In re Spencer O., 765 N.W.2d 443 (Neb. months before trial but returned to drug able time. 2009). DELINQUENCY, PERMANENCY use immediately upon her discharge and HEARINGS she entered aftercare program just one In case involving juvenile who had been month before termination hearing. Texas placed by Office of Juvenile Services Jones v. Texas Dept. of Fam. & Prot. (OJS) in treatment center that qualified as Pennsylvania Servs., 2009 WL 1563544 (Tex. App.). TERMINATION OF PARENTAL RIGHTS, foster care after pleading no contest to C.S. v. Dep’t of Pub. Welf., 2009 WL BEST INTERESTS delinquency offenses, juvenile’s right to 1160951 (Pa. Commw. Ct.). Termination of mother’s parental rights notice was not violated when court held a DEPENDENCY, REGISTRIES was in children’s best interests based on permanency hearing and failed to inform In father’s action requesting that his name evidence of mother’s unstable lifestyle him of possibility of termination of be expunged from child abuse and neglect and lack of commitment to improving; parental rights; although juvenile was in registry, father was entitled to separate mother and children had been homeless, OJS custody, where there was no possibil- administrative hearing to determine if he mother did not participate in family ity of termination unless a new petition abused his child since family court in services until a year or more after was filed, fact that juvenile was in foster prior dependency proceeding failed to children’s removal and did not comply care placement prompted permanency make specific finding of abuse. hearings. with drug testing until just before trial, and children were improving in foster home.

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 85 (Continued from front page) the purpose of preserving procedural and constitutional rights. contact is made, typically you may rights. However, any lawyer that not assert any positions on behalf would be appointed on behalf of an Thorough and reasonable of the father. This is because the unnamed client is limited in terms of preparation courts generally find that any action advocacy strategy and tactics be- Incompetent representation can taken without the client’s knowl- cause there is no client directing the result from inexperience, lack of 12 edge or consent cannot bind the cli- litigation. training, or more commonly, pro- 4 ent, and may violate MR 1.2, The fifth and final circumstance crastination and neglect of client which says the client, not the law- (multiple fathers) is addressed in the matters. Upon appointment, imme- yer, controls the objectives of the “conflict of interest” section below. diately make reasonable efforts to 5 representation. For all of these circumstances, if locate your nonresident father client. On the other hand, if you are there has been no contact, you may Critical legal rights need to be appointed, you must make reason- not advocate on behalf of the father. explored and explained to the father able efforts to locate the father. If But the lack of contact does not as soon as possible. These include: the father receives notice of the ap- mean that a lawyer/client relationship „ establishing paternity if at issue; pointment, the court will assume has not been established; the lawyer the father had a reasonable expecta- still owes the father ethical obliga- „ reviewing whether there are tion that the lawyer would represent tions, including the duty to attempt existing custody orders through him.6 It is the appointment which to locate him. Upon appointment, if domestic relations court that may triggers the ethical duties, including the father is named but not present, affect the dependency case; making an effort to locate the cli- make sure the court orders the „ determining visitation parameters ent,7 explain the case, elicit the agency to make a reasonable attempt (frequency, location, supervised client’s position,8 and advocate for to find the putative father, so the fa- versus unsupervised); the client’s position.9 A lack of ef- ther will have the ability to be „ determining whether paternal present, answer the petition, and be fort on your part may lead to disci- relatives can take physical or 10 represented. pline and/or a malpractice claim. legal custody if the father is not in (See Consequences for Failing to a position to do so; Adhere to Ethical Standards Competent Representation sidebar, next page.) MR 1.1 provides that competent „ tracking an existing or a potential To establish malpractice, the cli- representation includes the following parallel criminal case associated ent must show harm. Failure to lo- key components: with the abuse/neglect allegations; and cate fathers early may prevent chil- „ legal knowledge dren from establishing a relation- „ explaining to the father the basic „ legal skill ship with them, deprive children of process of a dependency case, potential paternal relative resources, „ thoroughness including ASFA timelines, the or delay permanency (either reuni- „ preparation role of the child welfare agency, fication with father, relative place- etc. Legal knowledge and skill ment, or adoption if the termination In addition to explaining basic While ethics rules generally permit a of parental rights process is rights and responsibilities to the fa- lawyer with no prior experience to delayed). ther, encourage cooperation with the handle a particular type of case, the For the third circumstance (pu- agency to the degree that the father rules require that lawyer to develop tative father is named, but paternity is interested. Even if the father is at competency, usually through asso- has not been established), you may first uninterested or ambivalent ciation with a lawyer experienced in be appointed, particularly if the pu- about gaining custody of the child, such matters.13 The ABA Standards tative father is present. In that in- the lawyer needs to be involved of Representation for Lawyers stance, follow the client’s wishes early on in the case because case Representing Parents in Abuse/ (and certainly a court order) regard- planning can (or at least should) Neglect cases lays out the wide ing paternity testing. Good advice begin immediately. This establishes range of topics that a lawyer must be at this stage is critical to establish- the father as a key player in the ing paternal rights, if the client is familiar with before handling a 14 case, and the sooner he is involved 11 dependency case. Other articles in interested in that objective. in that process, the greater advan- this series describe additional train- If the father’s identity is un- tage he has if and when he decides ing issues when representing non- known (#4 above), the ethics rules he wants to work to gain custody resident fathers, such as protecting do not specifically prohibit the and/or have regular contact with the the client’s standing, child support, court from appointing a lawyer for child. 86 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 As the lawyer for the nonresi- dent father, push to frontload ser- Consequences for Not Following Ethical Standards vices early in the case, including visitation, social, and rehabilitative The most common result of failing to follow ethical standards is that a services. Advocating for complaint or grievance is filed against a lawyer with Bar Counsel or frontloading of services not only other disciplinary board. Typically, grievance commissions do not find satisfies the MR 1.1 obligation to unethical conduct based upon a mistake or error in judgment. Unethical provide thorough and reasonably conduct means wrongdoing, a violation of a profession’s code of ethics. prepared representation, but also is Ethics violations can result in a range of sanctions from censure (public consistent with your ethical obliga- reprimand), temporary suspension, or disbarment. tion under MR 1.3 to provide A second consequence of unethical conduct is that a client may file diligent representation. for malpractice. A client must prove that: (1) a lawyer/client relationship exists, (2) a duty was breached, and (3) an injury occurred. Merely vio- Diligent Representation and lating an ethical rule is not a basis for civil liability. However, violating a Maintaining Communication rule may be evidence used to support a civil claim because the lawyer When representing nonresident has breached a relevant standard of conduct. fathers, you may have difficulty Finally, a lawyer may be found to have provided ineffective assis- maintaining contact with your client. tance of counsel. If the right to counsel has been established by state law MR 1.4 explicitly directs the lawyer (for a TPR or dependency case), then the Sixth Amendment guarantee of to keep the client reasonably in- effective assistance on counsel applies. To establish a constitutional vio- formed about the status of the case, lation, a client has to show: (1) deficient performance, and (2) prejudice. promptly comply with reasonable requests for information, and ex- plain the case to the extent reason- reasonable efforts to prevent the shape and achieve the father’s ably necessary to permit the client to child’s removal from the father, or goals. Encourage the father to make informed decisions. MR 1.3 whether reasonable efforts have participate as these approaches requires the lawyer to act with been made to reunify with the lead to higher reunification rates reasonable diligence and prompt- father. and greater satisfaction and sense ness in representing a client. of empowerment for families. „ If the father is not in a position or Explain to your client exactly does not desire custody, explore what to expect in the court proceed- other rights such as visitation, Absent Client ings and work with him regularly to and advocate accordingly. If the client cannot be found after determine his goals. Recognize any „ Advise the father to cooperate the lawyer/client relationship is bias you may have against fathers. established, can you continue to For example, a common belief is with the agency. This may even involve concurrent planning. represent the client? MR 1.2 lays that fathers are uninterested in seek- out your obligation to pursue the ing custody or unmotivated to do Understand how concurrent planning benefits parents (i.e., goals of the client. The client sets what is necessary to obtain cus- the objectives of the litigation, you 15 frontloading of services), and tody. Diligent representation (MR the lawyer determine the means. 1.3) and the degree to which law- explain to fathers how to take advantage of the services.16 How much can you assume to yers must maintain communication know about the intent of the client „ Find out from the father if he has (MR 1.4) are subjective issues. Ex- when your client cannot be relatives or other people who may plain all the options, understand the reached? The analysis relates back be interested and suitable long- father’s goals, advise him accord- to the section on appointment of or short-term caregivers. Do not ingly, and work with the other par- counsel. It is a judgment call on rely on social services to do the ties to achieve them. The following your part. If you have had enough legwork to investigate these tips will help ensure compliance meaningful interaction before the people. If necessary, contact them with these ethics rules: client’s disappearance, you may directly. „ If there is no preexisting custody have enough information to con- order granting the mother sole „ Participate in mediation, family tinue to represent. If significant time custody, or if a preexisiting group conferencing, has passed, or if little information domestic relations case order multidisciplinary team meetings was exchanged early on, the fact grants joint custody, then explore and any other formal or informal that the father once said “I don’t whether the agency made “out-of-court” opportunities to want my parental rights terminated,

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 87 fathers. Resources Clients can waive the potential conflict, even if it is foreseeable. Of- „ Local Bar Association Ethics Hotlines. In addition to consulting the Model Rules, you can contact your local bar ethics hotline for ten, access to affordable counsel is a guidance. big issue for nonresident fathers, and is frequently the reason when „ National Project to Improve Representation for Parents Involved they decide to waive conflicts of in- in the Child Welfare System, a project of the ABA Center on Children terest. If you represent multiple fa- and the Law, provides networking opportunities, a listserv, special thers and a conflict arises, whether events, and training and technical assistance for parents’ attorneys. you will need to withdraw from the Visit www.abanet.org/child/parentrepresentation/home.html case depends on the circumstances. If you can continue to preserve con- fidential communications, and zeal- and if they are, I’d like you to ap- prevent the lawyer from zealously ously pursue each client’s objec- peal” does not bind you to blindly pursuing another client’s objectives, tives, you may remain in the case. pursue that goal. In fact, MR 1.2 and whether confidentiality may be You must explain the potential con- and MR 3.1 suggest that without ac- compromised. flict to each client, and each client tive, ongoing participation of the cli- MR 1.7 strongly discourages must consent in writing.22 Consent ent, you may not be able to continue dual representation. MR 1.7(a)(1) can be revoked any time.23 to represent him and/or file an ap- prohibits representing a client if that peal to a TPR judgment.17 client’s interests are directly adverse Conclusion If you have been in contact with to another client, even if the matters When representing nonresident your client, but he does not wish his are unrelated. This is because clients fathers, you have an ethical respon- whereabouts to be revealed, M.R. feel betrayed, and may fear the at- sibility to zealously advocate for 1.6 requires you to keep that infor- torney will pursue their case less ef- your clients. This advocacy includes mation confidential. If the court or- fectively.19 Even when there is no guiding fathers through the deci- ders you to reveal your client’s direct adverseness, representation is sion-making process so they can whereabouts, whether or not you do also prohibited under MR 1.7(a)(2) make informed decisions. It also so requires a close look at MR 1.6. if there is a significant risk that the involves regularly communicating Under MR 1.6(b)(6), you may re- representation of one or more cli- with and apprising fathers of their veal otherwise confidential, pro- ents will be materially limited by choices and the effects and obliga- tected information to “comply with the lawyer’s responsibilities to an- tions surrounding each choice. a court order.” However, under the other client, a former client, a Ethical challenges are bound to Model Rules, this is a permissive cir- third person, or by a personal in- arise, including potential conflicts of cumstance under which confidential terest of the lawyer. The conflict interest, actions to take upon ap- information can be revealed, so the forecloses alternatives that would pointment, and methods for main- choice is yours.18 otherwise be available to the taining regular communication with client.20 the father. You can overcome these Conflict of Interest In most cases involving multiple challenges and ensure the best Can you represent the mother and children and multiple parents, the possible advocacy for your client by nonresident father? What about conflict is foreseeable and you consulting the guidance in the representing different fathers when should not accept appointment for Model Rules. the case involves a sibling group? two fathers.21 For example, Father Prohibiting lawyers from represent- A may want custody of his child Jennifer Renne, JD, is an assistant ing clients when there is a conflict and Father B may want the mother director of child welfare for the of interest is grounded in the notion to keep custody. Advocating on be- National Child Welfare Resource that lawyers owe clients duties of half of Father A may involve pre- Center on Legal and Judicial Issues. loyalty, independent judgment, senting evidence against the mother She wrote Legal Ethics in Child zealous pursuit of client objectives, and arguing why she is inappropri- Welfare Cases and is a frequent and client confidentiality. When ate, and that may undermine the po- trainer on ethics in child welfare. representing Client A compromises sition of Father B. Further, confiden- the duties the lawyer owes to Client tial information about the mother, Endnotes 1 B, there is a conflict. The key each father, or the children may be All states have slightly different ethics rules, and while no state follows the Model Rules question is whether zealously compromised when negotiating and verbatim, the majority of states base their rules pursuing one client’s objectives will advocating for the respective on the ABA Model Rules or the ABA Model 88 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 Code of Professional Responsibility. 2 Sankaran, Vivek. “Procedural Injustice: How New in Print the Practices and Procedures of the Child Welfare System Disempower Parents and Why It Matters.” Michigan Child Welfare Law Reforming Child Welfare Journal, Fall 2007. What does it take to turn around the child welfare sys- 3 This may be the shelter care hearing, 72-hour tem? Olivia Golden wrestles with this question in her removal hearing, or other terminology to new book, Reforming Child Welfare. Instead of giving describe the initial hearing. single solutions, she offers themes drawn from her many 4 Cooper v. Salomon Bros., Inc., 1 F.3d 82 years leading federal, state and local child and family (2d Cir. 1993); Lynch v. Deaconess Medical agencies. These themes, which she weaves through the Center, 776 P.2d 681 (Wash. 1989). book, include: 5 United States v. Weinstein, 511 F.2d 622 (2d Cir.1975). „ vision – knowing where you’re going 6 In re Lieber, 442 A.2d 152 (D.C. 1982). „ early action – moving quickly on problems and issues when they arise

7 MR 1.3 „ understanding the role of information and data 8 MR 1.4 „ performance management and accountability 9 MR 1.2 „ understanding the role of the political environment and how to change 10 Ferri v. Ackerman, 444 U.S. 193 (1979); outside political forces In Re Lieber, 442 A.2d 152 (D.C. 1982). Golden draws on her own experiences, particularly leading the Child 11 MR 2.1 and Family Services Agency of the District of Columbia out of federal 12 MR 1.2 court receivership from 2001 to 2004. She also draws from reform ef- 13 MR 1.1, Comment 1. forts in Utah and Alabama, two states that turned around their troubled 14 ABA Standards of Practice for Attorneys child welfare systems. And she discusses research on effective, Representing Parents in Abuse and Neglect evidence-based child welfare interventions to strengthen her Cases, available at: www.abanet.org/child/clp/ ParentStds.pdf recommendations. $29.50. Order from the Urban Institute Press, www.urban.org/books/ 15 See Kiselica, Mark S. “Reaching Nonresident Fathers in the Child Welfare System: reformingchildwelfare/ Understanding Male Help-Seeking Behaviors.” ABA Child Law Practice 27(11), January 2009. Reversing the Odds 16 This advice needs to be balanced with advice Babies and young children in the child welfare system that protects any competing client interests. For have a high prevalence for physical, cognitive, and example, if the father is not seeking custody, or social-emotional delays—and often don’t have access to if there is a valid concern about potential the services and supports that could make a difference. criminal charges, it may be best to advise In this new book, Sheryl Dicker, JD, helps professionals against cooperation with the agency. This is a difficult situation for any parent attorney as full go beyond abuse prevention to ensure comprehensive cooperation with the agency can lead to a healthy development of children from birth to age 3. speedier reunification, but can also have Readers will learn how to: potential harmful consequences that must be „ help young children access coordinated, consistent health care communicated and fully considered by the client. „ make early intervention screening and services readily available

17 MR 3.1 provides, in part, “A lawyer shall not „ fully use the juvenile court’s potential to ensure young children’s bring or defend a proceeding, or assert … an healthy development issue …, unless there is a basis in law and fact for doing so that is not frivolous.” „ make the most of early childhood education to prepare young 18 MR 1.6(b)(6). “A lawyer may reveal children for school and promote their healthy development and information relating to the representation of a well-being client to the extent the lawyer reasonably This book shows early childhood practitioners how to successfully believes necessary to comply with other law or court order.” navigate this complex system and collaborate with other professionals to meet young children’s needs. It uses real-life case examples to show 19 MR 1.7, Comment 6. how collaboration between child welfare, legal, health care, early child- 20 MR 1.7, Comment 8. hood professionals, and decision makers improve outcomes for young 21 MR 1.7, Comment 3. children. 22 MR 1.7(b)(4). $29.95. Order from Brooks Publishing Co., 23 MR 1.7, Comment 21. www.brookespublishing.com/store/books/dicker-69612/index.htm

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 89 SUPREME COURT NEWS Strip Search of Student Violated Fourth Amendment but School Officials Not Liable The U.S. Supreme Court held that inspection. No drugs were found in being distributed, and they had no the strip search of a 13-year-old girl the search. knowledge about specific drugs and by school officials who believed she Writing for the full court, Justice their effects before conducting the possessed drugs at school violated Souter found the school officials search. Further, they could not have the student’s Fourth Amendment had reasonable cause to justify reasonably suspected that the stu- rights. However, the Court held the searching the student’s belongings dent was hiding drugs in her under- school officials were entitled to and outer clothing. However, requir- wear, or that there was a general qualified immunity because the law ing her to remove clothing and pull practice among school students of on strip searches of students was not out her bra and underpants for in- hiding drugs in underwear, before clearly established. Safford Unified spection of her private areas vio- conducting the bodily search. Sch. Dist. No. 1 v. Redding, 2009 lated societal expectations of pri- To evaluate if the school offi- WL 1789472 (U.S.). vacy and qualified as a strip search cials were immune from liability, School officials had received a by requiring her to expose her Justice Souter cited New Jersery v. report that the girl had prescription breasts and pelvic area. T.L.O., 469 U.S. 325 (1985), which and over-the-counter drugs and was For such a strip search to be rea- required school officials to limit the distributing them to other students at sonable, its scope had to be reason- intrusiveness of student searches school. Based on the report and a ably related to the circumstance jus- based on the age and sex of the stu- school policy prohibiting students tifying the initial interference. The dent and the nature of the student’s from possessing or distributing Court found the amount of suspi- infraction. However, since lower drugs on school property, school of- cion present in this case did not federal courts have split over how to ficials first searched the student’s match the level of intrusion; there- apply T.L.O. to strip searches, the belongings. Two female school offi- fore, the search was unreasonable. Court found the law was unclear cials then conducted a bodily search Justice Souter explained that school and required qualified immunity for by asking the student to remove officials lacked any reason to sus- the school officials. most of her clothing and to pull out pect large quantities of prescription her bra and underpants for and over-the-counter drugs were Supreme Court to Consider Noncustodial Parent’s Right to Request Child’s Return in International Child Abduction Case The Supreme Court will review divorced. The husband was a British the child is only available when Abbott v. Abbott, 495 F.3d 1081 (5th citizen and the wife was a U.S. citi- “rights of custody” have been vio- Cir. 2008). In this case, the Fifth zen. The Chilean family court pro- lated under the Convention. The fa- Circuit affirmed a federal district hibited the parents from removing ther argued the Chilean family court ruling in an international child their son from Chile without notify- court’s ne exeat order and the statu- abduction case. The district court ing the other parent and obtaining tory ne exeat provision gave him refused to return a child whose written permission from the court. “rights of custody” under the Hague mother fled from Chile to Texas in Despite the court order, the Convention. violation of a Chilean family court mother left Chile and took the child The Fifth Circuit found the ne order, holding that the father was to Texas. When the father located exeat order prevented the parents unable to request the child’s return the mother and child, he filed suit in from removing the child from Chile under the Hague Convention on the the United States District Court for without the other parent’s consent. Civil Aspects of International Child the Western District of Texas re- Therefore, while the order gave the Abduction since he lacked custody questing the child’s return to Chile father the right to veto a request to rights to the child. under the Hague Convention. The remove his son from Chile, it did The question the Supreme Court district court denied the father’s re- not give him “rights of custody.” will consider is whether a ne exeat quest, finding the child’s removal The court distinguished between order prohibiting a parent from re- from Chile did not breach the “rights of custody” and “rights of moving a child from a home coun- father’s custody rights under the access” and held that ordering a try without the other parent’s con- Hague Convention. child’s return when a parent lacks sent confers a “right of custody” In its review, the Fifth Circuit “rights of custody” would be imper- under the Hague Convention. considered if the father had “rights missible under the Hague In the underlying case, the of custody” under the Hague Con- Convention. couple lived in Chile when they vention since a remedy of returning

90 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 LEGISLATIVE UPDATE On the Benefits of a National Putative Father Registry Marc Zappala

n 1972, The U.S. Supreme Court poses. First, they act as a safety net putative father registries to a na- Iruled in Stanley v. Illinois that to protect the rights of unmarried fa- tional putative father registry within equal protection requires state law to thers—the existence of which, it three business days of the state’s re- treat the unmarried father and must be noted, does not absolve un- ceipt of this information. This infor- mother of a child equitably. This married women of their moral re- mation would then be made avail- decision overturned decades of legal sponsibility to involve a child’s bio- able to public and licensed private tradition which viewed the mother’s logical father in the decision mak- adoption or child placement agen- wishes in such instances as para- ing process. Second, these registries cies, licensed attorneys, and state mount. Since that ruling, society has lessen the odds that a putative father agencies involved in child place- wrestled with how to balance the will contest a child’s adoption once ment services throughout the coun- parental rights of unmarried fathers the process has begun—as hap- try. Such agencies and attorneys with the parental rights of unmarried pened in the “Baby Jessica” and would be required to perform search mothers while promoting the best “Baby Richard” cases—and help requests in the national putative fa- interests of their children. spare all parties the trauma of a dis- ther registry during the course of an Two high-profile child custody rupted adoption and custody battle. adoption. They would then be re- battles in the early and mid 1990s quired to provide notice of any im- involving children placed for adop- The Need for a National pending proceedings related to a tion without their biological fathers’ Putative Father Registry planned adoption, the termination of knowledge or consent increased A weakness of state putative father a putative father’s rights to a child, public awareness of this issue. In registries is that they don’t protect the entry of a child into state cus- both disputes, dubbed the “Baby the rights of putative fathers when tody, or the establishment of pater- Jessica” and “Baby Richard” cases the mother makes an adoption nity to any and all putative father so by the media, the biological father placement for the child in a state identified. Finally, the bill would was ultimately awarded custody of other than the one in which the provide funds for a national media the child. These judicial decisions putative father has registered. For educational campaign to inform reinforced the shift marked by example, if a child is conceived in men and women of the existence of Stanley v. Illinois toward equal con- New Mexico, and the mother moves the National Putative Father Regis- sideration of an unwed father’s and to Texas before deciding to make an try, its purpose, and the advantages unwed mother’s parental rights. adoption placement for her child, of registering. Partially in response to these the father’s name will not turn up in The Protecting Adoption and cases, some state legislatures en- the Texas state putative father Promoting Responsible Fatherhood acted putative father registries de- registry when she begins the pro- Act of 2009 will ensure that men are signed to notify men when a child cess of making the adoption place- given the opportunity to exercise or whom they may have fathered is ment. Hypothetically, the mother waive their parental rights to any placed for adoption. Men in these could then place the child for children they have fathered outside states who are engaging in extra- adoption without the father ever of wedlock. It will also help to re- marital sexual relations with a knowing of the child’s existence. duce the number of being woman have the option of submit- The solution to this shortcoming disputed or disrupted by biological ting their names and contact infor- may lie in a bill entitled the Protect- fathers who were not made aware of mation, as well as the names of their ing Adoption and Promoting Re- their children’s existence until after sexual partners, to these registries. sponsible Fatherhood Act of 2009, an adoption plan had been made. The names of unmarried women recently introduced by Senator Child welfare advocates should sup- making adoption placements for Mary Landrieu (D-LA). If enacted, port this legislation, as its passage their children are then checked this bill would provide grants to would be a significant step toward against the information in the state’s states to assist in creating state puta- protecting fathers’ rights and a registry. If there is a match, the puta- tive father registries and mandate child’s interest in a smooth and tive father is informed and given the the creation of a national putative timely adoption. opportunity to exercise his parental father registry. States receiving such rights. grants would be required to submit Reprinted with permission from the June 2009 Adoption Advocate, published by These registries serve two pur- information entered into their state the National Council for Adoption. Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 91 CONFERENCE CLIPS Extending Foster Care to Age 21: Benefits, Costs, and Opportunities for States by Kristin Kelly oster youth who are allowed to education, employment, economic costs to government. Fstay in care beyond age 18— well-being, receipt of government when most states end guardian- benefits, physical and mental States in Action ship—are more likely to go to health, , and criminal jus- Jody Grutza, policy analyst, NGA college and derive other benefits. tice system involvement. Center for Best Practices highlighted Research by Chapin Hall and others The Midwest Study revealed state efforts to support youth in support this view. With passage of that extended time in care has a transition. She shared two ways the Fostering Connections to Suc- NGA is partnering with states: cess and Increasing Adoptions Act, „ the Policy Academy, where select states now have a financial incentive . . . the potential benefits to states develop strategic action to give young people the option of foster youth and society plans to better support youth staying in care until they turn 21. transitioning out of foster care; What do states need to consider overall more than offset the and when deciding whether to extend costs to government. „ the Learning Network, where the age of foster care? select states participate in peer-to- On July 15, 2009, Chapin Hall peer knowledge exchange around and the National Governors Asso- youth transition issues. ciation (NGA) Center for Best Prac- clear impact on outcomes related to tices hosted a Web conference: Ex- postsecondary education. For NGA also has a number of re- tending Foster Care to Age 21: Ben- example: sources to support state efforts in efits, Costs, and Opportunities for „ Allowing foster youth to remain this area, including State Policies to States. An expert panel examined in care until age 21 doubles the Help Youth Transition out of Foster this fast-evolving area of child wel- percentage of youth who earn a Care (January 2007), and a forth- fare policy and practice and offered B.A. from 10.2% to 20.4%. coming Issue Brief on State Policies guidance to states considering this to Help Youth Transition Out of Fos- „ Lifetime earnings associated with option. ter Care. completing postsecondary Grutza also highlighted states education increased ($72,000) Costs and Benefits that have already extended care be- and exceeded the average net According to Amy Dworsky, co- yond age 18, including: Connecticut cost of an additional two years in investigator for the Midwest Evalua- (age 21), Massachusetts (age 23) care ($38,000). tion of the Adult Functioning of and Illinois (age 21). She also Former Foster Youth (Midwest Based on the results of the Mid- pointed to California’s Guardian Study) and co-author of the research west Study, where young people Scholars Program, which supports brief, Extending Foster Care to Age tended to remain in foster care an postsecondary education needs of 21: Weighing the Costs to Govern- average of two years beyond their youth in the foster care system, as a th ment against the Benefits to Youth, 18 birthdays, and the cost of re- program that is benefiting youth. extending foster care to the age of maining in care was offset by the 21 brings both costs and benefits for average of $1,826 not spent on Tips for Implementation states. public assistance, the total per- Mary Gambon, Assistant Commis- Dworsky shared research from youth cost of extending care was sioner, Adoption, Foster Care, and the Midwest Study, which followed $38,000. Adolescent Services, Massachusetts youth in Iowa, Wisconsin, and Illi- Dworsky clarified that the expe- Department of Children and Families nois as they transitioned from foster rience in other states may differ offered advice for states considering care to early adulthood. Because from Illinois and other factors may extending care based on Massachu- youth in Illinois may remain in care contribute to differences in setts’ experience. She said that to through age 21, while Iowa and postsecondary educational attain- extend care beyond 18 a state must: ment. However, she said the poten- Wisconsin end jurisdiction at age 1. believe in servicing youth over tial benefits to foster youth and so- 18, the study analyzed differences the age of 18 philosophically, in youth’s experiences relating to ciety overall more than offset the

92 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 2. maintain commitment, even during fiscal reductions, Training Opportunities 3. involve youth voices and engage August 25-27, 2009 youth at every stage, 10th National Conference on Child Sexual Abuse and Exploitation 4. provide intensive casework, and Prevention 5. provide a safety net. New Orleans, LA Gambon also stressed that ex- The National Children’s Advocacy Center will host a conference for tending care beyond age 18 must in- professionals on child sexual exploitation issues and prevention. Conference clude using voluntary services, workshops will explore internet safety and online exploitation and abuse; extending subsidies, allowing youth preventing child sexual abuse in the 21st century; treatment for victims and to re-enter foster care if necessary, offenders; sexually abusive youth; science-based interventions; child extending Medicaid or medical cov- pornography; cyber bullying; safety needs of children in foster care; and more. erage, and expanding the youth’s For more information, visit: www.nationalcac.org/ educational supports. September 3-4, 2009 Conclusion A New Direction for a Safer Tomorrow: A National Conference on Growing research suggests that Supervised Visitation and Safe Exchange extending foster care beyond age 18 San Diego, CA can improve outcomes for young The National Council of Juvenile and Family Court Judges and the Office on adults. Recognizing this opportu- Violence Against Women will host a conference to inform professionals about nity, many states have already how to provide safe, supervised visitation and exchange services that take extended care and developed into account. National experts will discuss safety for adult programs that serve the needs of victims and children; services for diverse populations; community older youth, including health, collaboration; and advocacy. For more information, visit housing and educational supports. http://svpnationalconference.ncjfcj.org/ With the passage of the Fostering Connections Act, states now have an September 22-24, 2009 additional incentive—federal reim- The 6th Annual National Alliance for Drug Endangered Children bursement—to extend foster care Conference beyond the age of 18. Despite the Spokane, WA additional cost of extending care, This conference provides training for practitioners on research and best evidence suggests the benefits to practices to address DEC issues at the community, state and national levels. youth and society outweigh the Topics include medical responses to abused and neglected children; tribal DEC costs. responses and resources; substance abuse prevention, intervention and treatment; drug courts; addressing the needs of children of incarcerated parents; Kristin Kelly, JD, is a staff attorney prescription drug abuse and community responses; gang-related crimes at the ABA Center on Children and impacting children; sustaining collaborative DEC efforts; successful the Law, Washington, DC. interdisciplinary DEC models; and a presentation from three national resource centers on technical assistance and training that attendees can access to support Resources their DEC efforts.

„ To listen to an audio recording of this Web conference, visit: November 11, 2009, 10 a.m. (PST) www.chapinhall.org/events/ Special Immigrant Juvenile Status Webinar governing/extending-foster- This webinar, hosted by the Immigration Legal Resource Center, will discuss care-age-21-benefits-costs- how the Trafficking Victims Protection and Reauthorization Act of 2008 and-opportunities-states (TVPRA), signed into law on December 23, 2008, is being implemented, specifically focusing on the changed eligibility requirements for filing a „ Continuing in Foster Care Beyond Age 18: How Courts Special Immigrant Juvenile Status (SIJS) petition. Expert practitioners will Can Help share issues, strategies, and updates in obtaining SIJS in light of the TVPRA, http://chapinhall.org/research/ including juvenile court orders from dependency, delinquency, and probate brief/continuing-foster-care- courts and obtaining specific consent to apply for SIJS while a child is in beyond-age-18 federal custody. For more information, visit: www.ilrc.org/trainings_seminars/ detail.php?id=149

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 93 IN PRACTICE

Racial Disparities in the Child Welfare System: Reversing Trends by Howard A. Davidson

n most states, clear data1 show that minorities2 are disparately this by using the 1980 federal law involved in child protective court proceedings. Poverty, requirement of “reasonable efforts” I to prevent placement. They can also inadequate housing within poor neighborhoods served by urban ask what reasonable steps have, or juvenile courts, and racism are often claimed to be likely causes. have not, been taken to keep fami- lies out of the court system. Intrusive child protective agency “Reasonable efforts” judicial scrutiny and interventions are often scrutiny should encompass timely review of emergency or ex parte fueled by negative beliefs about In a 2008 policy resolution,6 concentrated poverty, environmen- the ABA urged judges, and child welfare agency or police re- tally distressed racially segregated quests for removing children from children’s and parents’ home. Where preremoval judicial neighborhoods, and cultural stereo- advocates, to ensure racial types of at-risk families. What can scrutiny is required, those autho- be done? and ethnic minority families rized to remove children should are able to readily access know how to contact a judge 24/7. Legislatures in states not requiring Promote safe alternatives needed services. preremoval judicial review should to removal. compel it. The legal profession should encour- age nonadversarial “differential Appoint parent attorneys (a.k.a. alternative) response sys- for inner-city parents to reduce the tems” and “family group decision- impact of poverty, including: before court petitions are filed. 3 Well-trained parent attorneys should making processes” that help „ child care be quickly appointed, and this provide at-risk children and parents „ voluntary mental health and should occur through action by the resources to avoid court intervention substance abuse treatment while addressing important familial court as soon as it is informed of a „ housing assistance issues they face. Rapidly imple- request to remove a child from a menting 2008 federal law reforms „ culturally-specific temporary home. The parent attorney should that promote state-subsidized remedial aid, including respite advocate for prompt service deliv- placement with relatives (in lieu of care for children ery to prevent a child’s placement foster care), when parents cannot As community leaders, judges before a court petition is filed if a provide proper care, should also be should work with child welfare, the child removal decision appears 7 promoted.4 local TANF agency, and community imminent. Removal decisions must focus groups to enhance access to high on objective child safety criteria.5 quality services that can help im- Increase awareness and Judges should ask those seeking re- poverished and troubled families understanding. moval about safe alternatives, such avoid unnecessary dependency The ABA has joined others in as placement with family friends, court system interventions. calling for legal/judicial training on: relatives, or neighbors, use of arrest cultural competency; identifying powers or restraining orders to get Apply federal reasonable institutional and unconscious biases; abusive adults out of a home, or use efforts requirements to and avoiding disparate treatment of of immediate in-home, emergency prevent unnecessary racial and ethnic minority children child care, and respite services. and families. It also urges recruiting placements. and retaining racially and ethnically In a 2008 policy resolution,6 the Ensure access to quality diverse child welfare judges and ABA urged judges, and children’s attorneys. Judges are also called services for parents and and parents’ advocates, to ensure children. upon to alert child welfare directors racial and ethnic minority families or supervisors if they witness racial Judges and lawyers should advocate are able to readily access needed bias in a child welfare professional’s for prompt access to key services services. Judges and lawyers can do 94 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 handling of cases, or when inaction harms families of color, such as Resources failing to identify and seek involve- ment by children’s fathers and other In addition to the resources cited in the endnotes, readers may be maternal and paternal relatives. interested in the following:

„ United States Government Accountability Office. African American Collect data to shape responses to Children in Foster Care: HHS and Congressional Actions Could racial disproportionality. Help Reduce Proportion in Care. Statement of Kay Brown, Courts must compile their own Director Education, Workforce, and Income Security, July 31, 2008. racial disparity data for all key www.gao.gov/new.items/d081064t.pdf decision points to set benchmarks, monitor progress, and ensure „ Casey Family Programs. “Disproportionality in the Child Welfare racially fair treatment and outcomes. System,” June 2006. www.ncsl.org/print/cyf/fostercarecolor.pdf

The ABA calls upon courts to track, „ Robert B. Hill. Synthesis of Research on Disproportionality in Child report, analyze, and report on Welfare: An Update. Casey-CSSP Alliance for Racial Equity in the corrective actions to respond to Child Welfare System, October 2006. information gathered on racial www.racemattersconsortium.org/docs/BobHillPaper_FINAL.pdf disparities. This should occur at local and statewide levels. The „ “Places to Watch: Promising Practices to Address Racial Court Improvement Program and Disproportionality in Child Welfare Services.” Undated paper by the Child and Family Services Review/ Casey-CSSP Alliance for Racial Equity. Program Improvement Plan process www.cssp.org/uploadFiles/Promising_Practices_to_ Address_ within states should both carefully Racial_Disproportionality.pdf examine racial disparity data and „ Fred Wulczyn and Bridgette Lery. Racial Disparity in Foster Care explore systemic responses to Admissions. Chicago: Chapin Hall at the University of Chicago, 2007. reduce high rates of www.chapinhall.org/research/report/racial-disparity-foster-care- disproportionality. admissions

Change the way federal funds are used to support state and local neighborhoods with the highest per- www.americanhumane.org/protecting-children/ child welfare agency work. centages of children living in pov- programs/family-group-decision-making for In 1992, Mark Hardin wrote Estab- erty. Advocates should support this more information on these reforms. lishing a Core of Services for congressional policy change. 4 Public Law 110-351 (October 2008), the Families Subject to State Interven- Fostering Connections to Success and tion: A Blueprint for Statutory and No single evidence-based practice Increasing Adoptions Act of 2008. See www.abanet.org/child/ for detailed information 8 Regulatory Action. This book noted is known to reduce child welfare on the Act. system racial disparities. However, that if a family needs a service to 5 Theresa Roe Lund and Jennifer Renne. Child remain intact, agencies rarely have a the actions above should help Safety: A Guide for Judges and Attorneys. clear legal obligation to provide it, courts and attorneys more effec- Washington, DC: National Child Welfare even if essential to preserve the tively address the problem. Resource Center on Legal and Judicial Issues, family. Hardin offered a framework 2009. for state legislation and agency Howard A. Davidson, JD, is the 6 The full text of the resolution can be found at: policy change to help assure needed director of the ABA Center on www.abanet.org/youthatrisk/ services become readily accessible. Children and the Law, Washington, racialdisparitypolicy.html. To implement that proposal, DC. 7 There is a new ABA program to improve representation of parents in dependency Congress must change the formula proceedings. See www.abanet.org/child/ Endnotes for state matching funds to child parentrepresentation 1 See analysis of data by Center for the Study of welfare agencies, so that services to 8 For information on ordering this or other Social Policy at: www.cssp.org/ preserve and strengthen families and Center publications, see: www.abanet.org/child/ major_initiatives/racialEquity.html address family crises are federally catalogfebruary2009.pdf. supported at equal or higher rates 2 African-American families and in some areas, than for out-of-home child place- Latino and Native American families. ment. Ideally, greater funding would 3 See: www.americanhumane.org/protecting- support services located within children/programs/differential-response and

Vol. 28 No. 6 ecuring ABA Child Law Practice —www.childlawpractice.org 95 TECH TRENDS

Florida Turns to Handheld Devices to Streamline Child Welfare Casework lorida will be the first state to the required timeframe. Fgive child welfare caseworkers Caseworkers can immediately handheld computers to take out in upload information from their visit the field. The devices will allow —photo, GPS coordinates, and case caseworkers to record case informa- files—directly into the DCF data- tion during visits with clients and base right from the field in real automatically upload case data to time. This expedites information on the Florida Department of Children cases and reduces the amount of time spent on tedious yet critical and Families’ (DCF) database. This technology . . . is The handheld devices will in- manual input of data and transcrib- clude GPS mapping and a tracking expected to revolutionize the ing of case notes. device that will show caseworkers way caseworkers and child More than 2800 devices will be where they need to be and record protective investigators record purchased at a cost of $2250 a where they’ve been, improving ac- and store critical information piece. They will be implemented countability. The device will also relating to child welfare visits. statewide in phases, beginning this have a built-in camera with an auto- August in Miami and expanding matic date and time stamp so a throughout Florida during the fall. photo can record each caseworker’s children in need, and providing This technology, referred to as visit with clients. more enhanced education and pre- the Remote Data Capture Solution, “Social work doesn’t happen on vention services to the families.” is expected to revolutionize the way a computer screen. It happens in the Additionally, the devices will en- caseworkers and child protective in- living rooms of the children and sure accountability on the part of vestigators record and store critical families we serve,” said DCF Secre- each caseworker. In addition to information relating to child welfare tary George Sheldon. “These de- proving with GPS coordinates and visits. vices will transform the child wel- date and time stamps when a case- Florida Governor Charlie Christ fare system in Florida by greatly re- worker has made a required visit, it is credited with the idea for using ducing the amount of paperwork re- will also send automatic alerts that a the devices as a way to improve the quired by caseworkers—which can child is due (or overdue) for a visit. security and safety of Florida’s take several hours per visit to com- A caseworker’s supervisor will also children. plete. We think that time is much be notified with these alerts so that better spent visiting families and no child goes unseen for longer than Get a bonus CLP issue added to your subscription. Here’s how: Go to www.childlawpractice.org and answer our CLP Technology User Survey. American Bar Association Presorted Center on Children and the Law First Class 740 15th Street, NW, 9th Floor U.S. Postage Washington, DC 20005-1022 PAID Permit #163 Annapolis, MD