clp

ABA Child Law Practice

Vol. 31 No. 3 March 2012 CLP Online: www.childlawpractice.org

Raising the bar

The Judge’s Role in Ensuring Quality Representation for Parents
by Elizabeth Thornton and Judge R. Michael Key

Y ou are a judge hearing child abuse and neglect cases. It is your outcomes for children and youth in
abuse and neglect cases.2 (See
morning calendar. You ask the clerk to call the first case—an Sidebar 1)
adjudication and disposition on a complicated case involving do- The American Bar Association,
mestic violence allegations. The agency has recommended placing through its Standards of Practice for
Attorneys Representing Parents in
the children in foster care and supervised visitation with the parents. Abuse and Neglect Cases (the “ABA
Parent Attorney Standards” or “Stan-
When the clerk calls the case, the are not sure how to change the status dards”) and the National Council for
court-appointed attorney for the moth- quo. Juvenile and Family Court Judges
er steps into the hallway and yells, “Is This article explores questions that through its Resource Guidelines: Im-
Mrs. Smith here?” Two minutes later may arise as you explore your role in proving Court Practice in Child Abuse
all counsel are present and Mrs. Smith improving parent representation in & Neglect Cases, emphasize the role
is seated at counsel table with her at- your jurisdiction. child welfare judges play in ensuring
torney. Mrs. Smith’s attorney informs parents in abuse and neglect cases re-
the court that his client agrees to the Why should judges be concerned ceive high-quality representation.
petition allegations and agency recom- with the quality of representation The Resource Guidelines call on
mendations. You can see Mrs. Smith parents receive? judges to take “active steps to ensure
trying to whisper something in his ear. As a judge hearing child welfare that the parties in child abuse and ne-
He shushes her and the case proceeds cases, you should be concerned with glect cases have access to competent
by stipulation. the quality of representation parents representation,” noting that “[e]ach
As Mrs. Smith and her attorney appearing before you receive. Attor- (Continued on p. 39)
leave the courtroom you hear her ask, neys present information to you, the
“So, what just happened?” The attor- judge, through argument, and direct What’s Inside:
ney rushes back in for another case. and cross-examination of witnesses. 35 CASE LAW UPDATE
You have noticed this attorney To make well-informed decisions you
seldom recognizes his clients. You must receive complete and accurate in- 43 IN THE FIELD
sense he does not take time to meet formation. You cannot get a complete Charting New Territory:
his clients before hearings as he often and accurate picture of the families Bringing Trial Skills Training
seems confused and frustrated after appearing before you if a party lacks to the Gila River Indian
hearings. You wonder if your decisions competent representation.1 Community
would change if you had a better pic- Quality legal representation for 46 RESEARCH IN BRIEF
ture of the families appearing before parents supports good decision mak- Family Drug Court Helps
you. Would case outcomes differ if ing. It upholds confidence in the ju- Families Reunify, Saves
the parents’ attorney helped parents dicial system and basic values of due Money
engage in appropriate services? You process. Additionally, research shows New Study Tracks Serious
want the parents appearing before you that providing parents with quality Physical Abuse among
to have quality representation, but you legal representation leads to improved Hospitalized Children

33 Vol. 31 No. 3
CLP Online —www.childlawpractice.orgInternet: http://www.childlawpractice.org
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ABA Child Law PRACTICE
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ABA Child Law Practice (CLP)
provides lawyers, judges and other pro-
fessionals current information to en-
hance their knowledge and skills, and
improve the decisions they make on
behalf of children and families. Topics
include: abuse and neglect, adoption,
foster care, termination of parental
rights, juvenile justice, and tort ac-
tions involving children and families.
CLP is published monthly by the ABA
Center on Children and the Law, a
program of the ABA’s Young Lawyers
Division, 740 15th St., NW, 9th Fl.,
Washington, DC 20005-1022.
Director: Howard Davidson
CLP Staff:
Editor & Designer:
Claire Chiamulera, 202/662-1724
Claire.Chiamulera@americanbar.org
Publications/Marketing Director: and families over his long career. The winning nominee will be someone
Sally Small Inada, 202/662-1739
Sally.Inada@americanbar.org
Case Law Summaries:
Scott Trowbridge
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34
First Annual Mark Hardin Award for
Child Welfare Legal Scholarship and Systems Change
The Mark Hardin Award for Child Welfare Legal Scholarship and Systems
Change, created by the ABA Center on Children and the Law in 2011 with
approval from the ABA Board of Governors, honors the work of Mark Har-
din. Before his retirement, Mark served for almost 30 years on the staff of
the ABA Center on Children and the Law as director of child welfare. Mark
has long been recognized by those who work in this area of law as an early
innovator in the child welfare legal field.
Eligibility
Nominee must be a practicing or retired attorney, current or retired law
professor, a sitting or retired judge, or a current or former federal or state
legislator. The award is given based on an individual’s personal achieve-
ment and commitment. It is not given to groups of people, organizations,
or posthumously. Nominees must have a record of significant accomplish-
ments in legal scholoraship and/or systems change
The nominee should embody Mark’s leadership style, characterized by hu-
mility, a “willingness to serve,” and a deep driving compassion for children
and families. Mark was a mentor to many, a willing collaborator, and great
influencer of change. He kept focused on the end results he sought and con-
tinually pushed his colleagues, in his understated manner, towards reaching
these results. He remained steadfast to effecting positive change for children
who shares many of these qualities.
Nomination Process
A nomination packet must be submitted by March 30, 2012 and should
include:
■■ Nomination Form
■■ Nomination letter explaining the qualifications of the nominee and the
reasons why the nominee should receive this award. The letter must in-
clude a description of the nominee’s legal work on the behalf of families
and children, and their employment and professional history.
■■ Up to three letters of recommendation may be included.
Nomination letters, and letters of recommendation, should explain how the
nominee reflects the qualities and values (such as humility, willingness to
mentor others, ability to collaborate to effect change, etc.) that Mark repre-
sents.
Nominations due March 30, 2012. The award will be presented during the
annual National Child Welfare Court Improvement meeting in Washington,
DC, June 27-29, 2012.
More information: www.americanbar.org/groups/child_law/hardin_child_
welfareaward.html
CLP Online —www.childlawpractice.org Vol. 31 No. 3
Case Law Update
Removal of Child from Relatives’ Home Due to Undocumented Immigration Status Overturned
In re M.R., 2012 WL 360593 (Wash. Ct. App.).
The Washington Court of Appeals
overturned an order removing a child
from her grandparents’ home because
of allegations that they were undocu-
mented immigrants. Given the many
years the grandparents had lived in the
U.S., the trial court’s concerns about
the possible instability of the placement
were not strong enough to warrant the
child’s removal given the strong bonds
to her family.
A four-year-old child came to the
attention of the child welfare agency
because her mother was homeless, using
methamphetamines, and may have en-
gaged in prostitution in front of the child.
The child’s father was unavailable to
parent because he had been deported due
to criminal activity. After an investiga-
tion and background check, the child was
placed with her paternal grandparents,
where she lived for four-to-five months.
At the preliminary hearing, the agen-
cy recommended the child remain with
the grandparents with a goal of return
home and a dual goal of adoption.
The recommendation was based
Children Not Dependent Due to Mother’s Cognitive Limitations
In re N.E.F.-J., 2011 WL 6076176 (Or. Ct. App.).
The Oregon Court of Appeals over-
turned a juvenile’s court’s depen-
dency order because the record did
not reflect a serious threat of harm.
Though it was not disputed that
mother had cognitive limitations that
posed potential safety risks, she lived
with a supportive couple, and nothing
in statute or case law required her to
parent independently.
The child welfare agency sought
custody of mother’s two children after
one was surrendered by an aunt that was
caring for him due to the mother’s cog-
nitive limitations. The younger child had
been living with the mother.
At the adjudication hearing, the
agency worker noted that the mother had
learned some parenting skills and could
35
partly on the caseworker’s impression that
there was a strong bond between the child
and her grandparents. In addition, he de-
scribed the many other relatives who often
visited the home and were positive for the
child.
The caseworker also described threats
that the maternal relatives made regarding
contacting immigration authorities if the
child was placed with the paternal grand-
parents. The mother noted that, though
she knew about the maternal relative’s
desire for custody, she supported the child
remaining with the father’s family.
At a review hearing several months
later, the agency and mother continued
to recommend placement with the pater-
nal grandparents. At this stage, the
guardian ad litem (GAL), joined the
recommendation.
The agency noted that it did not de-
termine immigration status, the investiga-
tions revealed the paternal grandparents
had been in the U.S. for 18 years, owned
their own home, and had owned their own
business for three years.
Despite the agreement of the parties,
the court ordered the child be removed
apply what she had learned, but had lim-
ited ability to respond to new situations.
Due to her limitations, she at times had
placed the children at risk. For example,
the mother continued to treat her child
as a baby when he was more than a year
old, giving him a bottle, despite his cues
that was not what he wanted. She also
let him wander to potentially harmful
places. The worker concluded the moth-
er could not parent the children herself.
The mother did not attempt to con-
tradict the worker’s testimony. Rather,
she argued that she could parent the
children safely with the assistance of a
family friend who she had lived with for
two months. The family friend testified
noting that the mother had been given
primary parenting responsibility but that
she and her husband were available to
CLP Online —www.childlawpractice.org
from the grandparents’ home at the review
hearing due to the questions about their
immigration status. The mother appealed.
The Washington Court of Appeals re-
versed. Although courts should endeavor
to keep children from unstable place-
ments, undocumented status alone is not
sufficient to justify when the child has a
strong bond to a caregiver, a sibling in the
area, and has adjusted to daycare.
In making a placement decision, a
trial court should evaluate several fac-
tors, including the child’s attachment to
siblings and caregivers and the poten-
tial harm to the child if the placement
changes. While the risk of the placement
changing is a factor that should be con-
sidered by the courts, immigration status
is not a reliable indicator of whether a
person will be deported. As the trial court
itself observed, “frequently people are in
the United States illegally for a very long
time and never draw the attention of the
authorities…”
Since the decision to remove the child
from the paternal grandparents was based
on an untenable ground, the order was re-
versed and the case remanded.
help her with any questions or problems.
The juvenile court found that the
children were dependent because the
mother had cognitive limitations that im-
paired her ability to parent, establishing
a current threat of serious loss or injury.
The mother appealed.
The Oregon Court of Appeals
reversed.
The court found the mother cor-
rectly argued that the agency had to
prove the child was facing a current seri-
ous threat of harm. Nothing in statute or
case law required the mother to parent
independently. Because the family friend
stated the mother was free to remain in
their home indefinitely, there was no
reason to believe this supportive envi-
ronment was in peril. Thus, the juvenile
court’s jurisdiction order was reversed.
Vol. 31 No. 3
CASE LAW UPDATE continued
STATE CASES
Alabama
L.M. v. Shelby County Dep’t of Human
Res., 2011 WL 6117941 (Ala. Civ. App.).
TERMINATION OF PARENTAL
RIGHTS, SUBSTANCE ABUSE
Juvenile court erred in terminating paren-
tal rights where the mother had continued
to abuse substances but the father had
remained drug free and complied with his
case plan. Although a parent’s rights may
be terminated for failing to end a relation-
ship that poses a risk to their children,
that risk must be shown. Nothing in
the record showed the father could not
protect the children when the mother was
under the influence. Further, the father
had never been told his involvement with
the mother was prohibited.
Alaska
Martha S. v. Dep’t of Health & Social
Servs., 2012 WL 104471 (Alaska).
DEPENDENCY, FINDINGS
Trial court properly removed children on
the ground that their father had a mental
illness that put his children at a substan-
tial risk of harm. Father’s personality
disorder led him to threaten and try to
kill professionals who were respond-
ing to abuse allegations. Contrary to the
father’s claim that his personality disorder
diagnosis was not a mental illness, the
dependency ground encompasses a broad
range including mental illness, serious
emotional disturbance or mental deficien-
cy, and expert testimony indicated it was
a mental illness.
California
In re Gabriel K., 2012 WL 335815
(Cal. Ct. App.). DEPENDENCY,
REUNIFICATION
Trial court did not err in denying mother
further reunification services for two
siblings based on fact that services had
been previously stopped for younger
child who had then been placed with his
father. Though statute only explicitly
states that reunification efforts can be
stopped where efforts with a sibling had
previously failed, to construe the statute
such that reunification services could be
withheld for the older child but not the
younger child who was the subject of the
prior finding, would be absurd and would
not meet legislative intent.
36
Research performed on Westlaw compliments of West Group.
In re M.B., 134 Cal. Rptr. 3d 45 (Ct. App. injurious to a child requires showing more
2011). DEPENDENCY, JURISDICTION than one accident.
After mother repeatedly cursed, tied up
phone lines with calls and hang ups, and Massachusetts
threatened agency caseworker and other In re Meaghan., 2012 WL 247851
staff, juvenile court had authority to issue (Mass.). TERMINATION OF PARENTAL
injunction prohibiting the mother from RIGHTS, REPRESENTATION
contacting caseworker except through her Trial court was correct in holding that
attorney or in writing. Although this type where the child’s legal guardians peti-
of injunction was not listed in the child tioned for adoption, effectively terminat-
welfare statute, it fell within the juvenile ing father’s parental rights, the indigent
court’s limited jurisdiction as it reasonably father had a right to an appointed attorney.
supported protecting the child. Though statute provided for representation
in cases brought by the public child wel-
Tracy J. v. Superior Court, 2012 WL fare agency, father’s constitutional right to
234030 (Cal. Ct. App.). DEPENDENCY, parent was similarly at risk in case brought
REASONABLE EFFORTS by private parties.
Where parents had limited intellectual
functioning and mother had physical
Minnesota
In re J.J.P., 2012 WL 171407 (Minn. Ct.
difficulties including obesity and short
App.). DELINQUENCY, EXPUNGED
arms that made it difficult for her to
RECORDS
perform some parenting tasks such as
District court erred in denying petition
diaper changing, agency failed to make
for expungement of juvenile records from
reasonable efforts by providing infrequent
executive agency’s files after expunging
visitation. Despite the parents’ limited
its own records. Court’s concern about
intellectual functioning, they fully coop-
separation of powers issues lacked merit
erated with services. According to one
since the legislature crafted a statute that
caseworker, in a year of supervised visits
allowed expungement without limiting it
with positive reports by those supervising,
to only judicial records. If the legislature
the parents still had only one supervised
had sought to impose such a limit, it could
visit a week.
have done so.
District of Columbia
In re J.R., 33 A.3d 397 (D.C. 2011).
Mississippi
Cooley v. State, 76 So. 3d 210 (Miss. Ct.
DEPENDENCY, JURISDICTION
App. 2011). ABUSE, HEARSAY
District of Columbia trial court properly
Child’s statements made to school nurse,
exercised jurisdiction over child under the
including his identification of mother’s
Uniform Child Custody Jurisdiction and
boyfriend as the perpetrator, was admis-
Enforcement Act where child’s mother had
sible in criminal child abuse proceeding.
been in District foster care for a decade.
The statement qualified under the hearsay
Though the mother had primarily been
exception for statements made for the pur-
placed in foster homes in Maryland, and
poses of medical diagnosis or treatment.
the child was born there, jurisdiction by
The child’s identification of the perpe-
the District of Columbia court was proper
trator, a member of his household, was
since the Maryland court declined jurisdic-
relevant to treatment that might include
tion, and the child had strong ties to the
prevention or psychological services.
District.
Missouri
Illinois
State v. Green., 2012 WL 258677 (Mo. Ct.
In re A.P., 2012 WL 204161 (Ill. App. Ct.).
App.). CHILD ABUSE, HEARSAY
DEPENDENCY, NEGLECT
Trial court properly admitted child’s
Trial court’s dependency finding was im-
statement describing her abuse in criminal
proper where the only allegation was the
proceeding despite the lack of a finding
mother’s boyfriend allowed the child to be
of reliability by the court. Statement was
burned in the bathtub. There was no indi-
made to a professional trained in forensic
cation that the children had been neglected
interviewing, child’s statements to others
or abused in the past and the boyfriend had
were consistent, and defendant’s objection
immediately sought medical attention after
was overruled. These factors implied that
the bathtub incident. A preponderance of
the court found the statements reliable.
the evidence that a home environment is
CLP Online —www.childlawpractice.org Vol. 31 No. 3
Call 202/662-1724 for a copy of any case reported here.
Montana
In re J.W.C., 265 P.3d 1265 (Mont.
2011). TERMINATION OF PARENTAL
RIGHTS, ICWA
In Indian Child Welfare Act case, where
mother had requested a transfer to tribal
court, the state trial court erred in not
transferring the case. Although the tribe
was on notice of the mother’s request to
transfer and did not affirmatively respond,
the ICWA Guidelines indicate that the
state court should transfer absent good
cause, putting the burden on the tribal
court to affirmatively decline jurisdiction.
New Jersey
Div. of Youth & Family Servs. v. V.T., 32
A.3d 578 (N.J. Super. Ct. App. Div.).
DEPENDENCY, SUBSTANCE ABUSE
Court erred in finding father’s use of mari-
juana and cocaine constituted a substantial
risk of harm to his child in dependency ad-
judication where his uncontradicted testi-
mony indicated he used drugs several days
before the visit, was not intoxicated in his
child’s presence, and nothing caseworkers
described about his behavior during the
visit showed any risk of harm.
New York
In re Jayden B., 91 A.D.3d 1344 (N.Y.
App. Div. 2012). DEPENDENCY,
EMOTIONAL ABUSE
Family court erred in dismissing neglect
petition against mother where she and her
partner engaged in violent altercations in
the presence of the children. Given the tes-
timony that the children were often afraid
of the mother and her girlfriend, that these
fights were frequent and required police
intervention, petitioner showed by a pre-
ponderance of evidence that children were
at risk for serious emotional harm.
In re Jyashia RR., 2012 WL 300720 (N.Y.
App. Div.). TERMINATION OF PAREN-
TAL RIGHTS, FAILURE TO IMPROVE
Trial court properly found father had
failed to plan or provide for his children in
termination hearing. Father did not follow
through with recommended counseling,
arrived late for visits, did not make him-
self available for additional visits when
the agency recommended increasing visits
beyond one hour a week, and did not at-
tend school functions and meetings.
Pennsylvania
In re H.V., 2012 WL 258673 (Pa. Su-
per. Ct.). DEPENDENCY, RELATIVE
37
PLACEMENT
Where children entered care due to
domestic violence, trial court improperly
changed case goal from reunification to
permanent legal custody with the grand-
parents because the mother had sufficient-
ly complied with her plan and there was a
continuing strong bond between her and
her children. Trial court’s concerns that
mother’s new boyfriend posed a similar
risk were not supported by the evidence;
though he had a criminal record, it was for
driving under the influence and disorderly
conduct, not domestic violence.
In re P.S.S.C., 32 A.3d 1281 (Pa. Super.
Ct.). TERMINATION OF PARENTAL
RIGHTS, GROUNDS
In termination proceeding, trial court erred
in finding father was incapable of assum-
ing parental duties or that he evidenced
a settled purpose of abandoning his child
where little attempt was made by agency
to translate documents or ensure there was
an interpreter where the father only spoke
Spanish. Due process required meaningful
communication with the father about his
rights and responsibilities.
Tennessee
In re Deandre C., 2012 WL 161845
(Tenn.). DEPENDENCY,
AGGRAVATED CIRCUMSTANCES
Evidence that mother abused one child so
severely to render the child blind and un-
able to walk justified finding that the child
was severely abused. The mere presence
of the siblings in the home did not justify
the juvenile court’s finding that they were
also victims of severe abuse. However,
the trial court correctly found all siblings
were dependent, as the remaining siblings
could be at risk of the same type of abuse
suffered by the injured child and, in fact,
the aggravated circumstances finding for
one child relieves the agency of further
reunification efforts.
Texas
In re J.M., 2012 WL 335859 (Tex.
App.). TERMINATION OF PARENTAL
RIGHTS, REPRESENTATION
Where mother contested termination, and
had been found indigent in a criminal
proceeding, trial court erred in failing to
appoint counsel, ask if she desired coun-
sel, or give her the opportunity to know-
ingly waive her right. State statute requires
appointing counsel for an indigent parent
when the parent opposes termination, but
CLP Online —www.childlawpractice.org
it does not require the parent to affirma-
tively request an attorney.
Utah
In re J.M.S., 2011 WL 6323022 (Utah).
DELINQUENCY, GROUNDS
In delinquency case, where youth paid
a stranger to punch her to terminate her
pregnancy, action was not an abortion
procedure under statute that indicates a
woman can not be held criminally liable
for having an abortion. Legislature clearly
intended ‘procedure’ to mean a medical
procedure, thus trial court erred in dis-
missing the delinquency petition.
Virginia
Bagley v. Dep’t. of Social Servs., 2012 WL
262729 (Va. Ct. App.). TERMINATION
OF PARENTAL RIGHTS, RELATIVE
PLACEMENT
Trial court did not violate provision re-
quiring consideration of relatives when it
denied mother’s request to place the child
with the uncle’s girlfriend’s parents. Under
state statute and common law, a relative
is a person related by consanguinity, af-
finity, or adoption and the relationship the
mother offered did not meet that criteria.
Farrell v. Dep’t. of Social Servs., 719
S.E.2d 313 (Va. Ct. App. 2012).
TERMINATION OF PARENTAL
RIGHTS, SIBLINGS
Trial court properly found all siblings
were abused or neglected during termi-
nation trial where one child had been
physically abused and malnourished given
the prior removal history due to substance
abuse and failure of services. A child need
not suffer actual harm before dependency
finding and evidence shows a substantial
risk of harm to the other siblings.
FEDERAL CASES
District Colorado
Schwartz v. Booker., 2011 WL 6055329
(D. Colo.). LIABILITY, CHILD
WELFARE AGENCIES
Where child’s estate sued the Denver
County child welfare agency after a child
died due to abuse by foster parents, though
child had originally been placed there
by the Jefferson County agency, Denver
County had assumed the special relation-
ship with the foster parents. For qualified
immunity purposes, separate County agen-
cies are arms of the state government.
Vol. 31 No. 3
Sidebar 1: Parent Representation Programs that Improve Outcomes
Data from regional parent representation programs show that when parents receive quality legal representation, children
are less likely to enter foster care, and if they do enter foster care, they achieve permanency more quickly. The following
three parent representation programs have significantly improved permanency outcomes for the families they serve.
New York’s Center for Family
Representation (CFR) is an inde-
pendent nonprofit serving clients in
Manhattan and the Bronx. It provides
clients with a multidisciplinary team
of an attorney, social worker, and par-
ent advocate. CFR primarily repre-
sents clients after a petition to remove
the child to foster care has been filed
by the child welfare agency, but rep-
resents some clients during the child
abuse investigation.
Data tracked from 2007 show:
■■ More than 50% of the children of
parents represented by CFR never
entered foster care.
■■ Where foster care could not be
avoided, the project’s average
length of foster care was just 4.5
months (with a median of 57 days)
compared a statewide average of
nearly two and a half years.
■■ Preliminary data indicates that
CFR has a re-entry rate of approx-
imately 1%, which favorably com-
pares with a New York statewide
foster care re-entry rate of 15%.
■■ Over 1/3 of CFR’s cases (33%)
were dismissed against parents
since 2007, often pursuant to a
section of the child welfare statute
that permits a court to rule that the
family no longer needs services.
This is three times as many cases
as were typically dismissed in
Manhattan before CFR became
the primary institutional provider
for parents.
The Detroit Center for Family
Advocacy (CFA) is an independent
nonprofit agency serving clients in an
urban area. CFA represents families
during the child protection investiga-
tion, and helps at-risk families access
legal tools to protect their children.
The CFA team of a lawyer, social
worker, and parent advocate use legal
38
mechanisms – such as guardianships,
child custody or personal protection
orders, education and landlord-tenant
advocacy – to allow parents or their
family members to provide for their
children without the need for
foster care or dependency court
interventions.
Since opening its doors in 2009,
CFA has served approximately 50
families during the child protection
investigation. In 100% of those cases,
the case closed with children residing
with a permanent family outside of the
child welfare system. The CFA team
helped prevent the need for foster care
placement for 112 children in less than
two years.
Washington’s Office of Public
Defense (OPD) Parent
Representation Program is a state-
wide system of parent representation.
The program serves a mix of urban,
rural, and suburban communities.
It funds, trains, and supervises par-
ents’ attorneys throughout the state
of Washington. Like CFR and CFA,
OPD’s parents’ attorneys work with
private social workers for the benefit
of their clients. OPD attorneys repre-
sent clients after the filing of a petition
to remove a child to foster care.
The OPD parent representation
program has been evaluated several
times throughout its history. Evalu-
ations have consistently found that
the program is succeeding in meeting
its goals and has achieved better out-
comes for children, including:
■■ increased family reunifications,
■■ fewer reunification failures and
case re-filings,
■■ reduced time to all permanency
outcomes,
continuance reductions,
■■
■■ improved case participation by par-
ents, and better access to services.
CLP Online —www.childlawpractice.org
For example, a 2010 program case
audit found a 39% increase in the
rate of reunification.
The most recent and comprehen-
sive evaluation examined the pro-
gram’s earlier permanency impacts
for over 12,000 children in foster care
from 2004 to 2007. This evaluation
shows the OPD parent representation
program significantly increases the
rate at which children reach perma-
nency and shortens the time to perma-
nency for children in foster care for
all permanency outcomes.
■■ There was an 11% increase in
the rate of reunification in OPD
counties as compared to counties
without OPD.
There was a 104% increase in the
■■
rate of adoption; and an 83% in-
crease in the rate of guardianship.
When researchers converted these
rates into real time, the results were
striking:
■■ The 11% improvement in the rate
of reunification translates into 27
days or almost one month less
time a child spends in foster care.
■■ The majority (68%) of children in
the evaluation sample who attained
permanency reunified with parents.
■■ For those children and families
who could not achieve reunifica-
tion, adoptions and guardianships
in OPD counties were accelerated
by approximately one year.
Excerpted from “Improved Outcomes
for Families and Potential Cost-Savings
Associated with Providing Parents with
High-Quality Legal Representation,”
by Elizabeth Thornton and Betsy Gwin,
available from the author (E-mail: eliza-
beth.thornton@americanbar.org). See
original for citations.
Vol. 31 No. 3
(Continued from front page.)
party must be competently and dili-
gently represented in order for juvenile
and family courts to function effec-
tively.”3
Similarly, the ABA Parent Attor-
ney Standards call on judges to recog-
nize the importance of the parent at-
torney’s role, with the knowledge that
“when competent attorneys advocate
for parent clients, the judge’s job be-
comes easier.”4 The Standards outline
steps judges should take to support
quality parent representation and are
discussed below.
How can judges ensure
parents receive high quality
representation?
To ensure parents receive quality rep-
resentation, you must first understand
what quality parent representation
looks like. The ABA Parent Attorney
Standards outline duties for parent at-
torneys and give guidance about work-
ing with clients, preparing for court,
involvement with case planning, and
post-hearing obligations.5
In general, parent attorneys
should: (1) empower clients to direct
their representation; (2) spend time
getting to know their clients and com-
municate and counsel them regularly;
(3) work with clients outside of the
courtroom to help clients plan and
engage in services; (4) know the law
and prepare for court hearings; and (5)
regularly participate in relevant
trainings.
A good parents’ attorney knows
the case facts and relevant law, identi-
fies his client’s strengths, proposes
solutions to the court tailored to the
client’s needs and, when necessary,
effectively litigates to achieve his cli-
ent’s objectives.
Equally, if not more important, a
good parents’ attorney acts as a coun-
selor of the human spirit for his client.
Parents involved in the child welfare
system typically find themselves
caught in a system where the state has
acted to take away their child and ev-
eryone in the court process is paid by
39 CLP Online —www.childlawpractice.org
Sidebar 2
ABA Model Rules Support Judicial Oversight
of Parent Representation
A review of the ABA Model Code of Judicial Conduct reveals judges are not
required to exert quality control to ensure parents receive effective court-
appointed representation. However, it is within judges’ roles to do so.
Rule 1.2, Promoting Confidence in the Judiciary, requires that “[a] judge
shall at all times act in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety.” You may worry that this rule
limits your ability to set expectations for parent representation. However,
commentary to this rule clarifies that judges should participate in activities
that promote access to justice for all.
Rule 2.5, Competency, Diligence and Cooperation, requires judges to “per-
form judicial duties, competently and diligently.” Commentary to this rule
clarifies that judges should “monitor and supervise cases in ways that reduce
dilatory practices, avoidable delays, and unnecessary costs.” Holding parents’
attorneys accountable to clear and reasonable expectations reduces delays and
unnecessary costs.
Washington State has successfully reduced the number of continuances and
court delays by focusing on improving parent representation. In 2000, Wash-
ington piloted an enhanced parent representation program in two of its coun-
ties. Initial evaluation of the pilot found a significant reduction in the num-
ber of days it took courts to hold shelter care, disposition, and permanency
hearings.1 More importantly, there was a significant increase in the number of
children and families reunifying when parents received high-quality represen-
tation. The program has since expanded to two-thirds of the state’s counties.
Rule 2.9, Ex Parte Communication, prohibits judges from initiating, per-
mitting, or considering ex parte communications concerning a pending or
impending matter, except in limited circumstances. Requiring a high-level of
representation from parents’ attorneys does not implicate the ex parte com-
munication rule. In reviewing or evaluating attorney performance, specifics of
pending cases should not be discussed.
1. Gemma, Carolyn. “Quality Representation of Parents Improves Outcomes of Families.” Child Court
Works 6(1), 2003.
that same government. navigate what often feels like a fright-
■■ How does that parent stay moti- ening, confusing, and unfair system.
vated to work her case plan? There are several things you can
do to ensure parents appearing before
■■ How can she look weeks or months
you receive quality representation.
down the road to getting her child
Some things you can do in your indi-
back?
vidual courtroom, at the “micro” level.
■■ How can she trust this system
Others will be easier to accomplish by
enough to partner with it in order to
working with your court system ad-
succeed?
ministration at the “macro” level.
Parents’ attorneys have the respon- Below are some concrete steps
sibility to build trust with their clients that the ABA Parent Attorney Stan-
and to help their clients successfully dards suggest to support quality parent
Vol. 31 No. 3
 ments. Child welfare practice in-
Sidebar 3
volves a complicated and unique area
A Judge’s Expectations for Parents’ Attorneys of law. Parents’ attorneys have the
awesome responsibility of advising
Attorneys who do not meet these expectations will not receive appointments and advocating for clients who could
to represent parents in my courtroom. potentially permanently lose custody
of their children. Parents’ attorneys
■■ Treat your clients with dignity and respect. need to know the substantive law, be
■■ Know the law. competent trial advocates, have broad
■■ Communicate with and counsel your clients regularly, explain the legal knowledge of issues families involved
consequences of your clients’ actions or inactions, and help your clients in child welfare face, and be famil-
find and engage in appropriate services, if needed. iar with appropriate and accessible
services.
■■ Work with your clients and opposing counsel to avoid litigation and re- The ABA Parent Attorney Stan-
solve conflict when doing so benefits your clients. dards recommend that parents’ attor-
■■ Competently litigate for your clients’ positions, when necessary. neys receive a minimum of 20 hours
■■ Understand and appreciate the magnitude of the decisions this court is of relevant training before they are
making about your clients’ lives and respect the responsibility you have in eligible to receive appointments and
impacting those decisions through your advocacy. a minimum of 15 hours of relevant
training each year thereafter. Setting
mandatory minimum training require-
representation in your courtroom. able to develop practice standards for ments is best accomplished through
parents’ attorneys, this is something your court administration. However,
Recognize the importance of the you still can accomplish in your you can require that attorneys receiv-
parent attorney’s role. This is one courtroom. Provide parent attorneys ing appointments from you meet a
of the easiest and most important seeking appointments from or appear- minimum training requirement. Let
things you can do. Be sure to show ing before you with standards you have attorneys know your training expecta-
respect for parents and their counsel. adopted for your courtroom. Require tions and ask them to certify that they
This sends the message that they are that attorneys agree to comply with the will complete the requisite training
integral to good decision making. This standards before they are eligible to be each year.
influences not just the hearings but appointed to represent parents in your If there are no relevant local train-
the tone of the entire child welfare courtroom. ing opportunities, you can often find
process. One parent advocate noted, if Establishing clear standards of quality child welfare-specific trainings
the judge treated every parent appear- practice for parents’ attorneys is di- through your state’s court improve-
ing before him as if that parent was rectly related to the first step described ment program.6 You can also work
the mayor’s wife, there would be a above. If you do not set reasonable with your local or state child welfare
great improvement in not just parent expectations for parents’ attorneys, agency to develop trainings for parent
representation and the expectations put you send a clear message that the par- attorneys. The child welfare agency
on attorneys, but on the child welfare ents’ attorney role is not important or can help fund these trainings with Ti-
system as a whole. respected. Other people in the child tle IV-E funds.7 National organizations
focused on child welfare practice are
Establish uniform standards of often an excellent resource for train-
representation for parents’ attor- ing curricula and materials.8
Ensure attorneys are well- Another way to ensure that par-
neys. Standards of practice put par-
ents’ attorneys on notice that a certain
trained by setting minimum ent attorneys are well trained is to
level of representation is expected and training requirements. institute a parent attorney mentoring
required for the attorney to continue program where more senior attorneys
to receive appointments. Establishing assist new or more junior parent attor-
standards of practice for parents’ attor- welfare process can see that and it neys. For example, in Massachusetts
neys is usually best done at the macro promotes a negative and counterpro- the Committee for Public Counsel
level – through state legislation, by ductive view of parents’ attorneys and, Services, which oversees all court-
your state’s administrative office of the ultimately, their clients. appointed child welfare attorneys, re-
courts, or through your jurisdiction’s quires parents’ attorneys to complete
court administration. Ensure attorneys are well-trained by substantive child welfare training and
If these larger systems are un- setting minimum training require- trial skills training. In addition,

40 CLP Online —www.childlawpractice.org Vol. 31 No. 3

attorneys who satisfactorily complete
the trainings and are eligible to be
appointed to represent parents must
also work with a mentor attorney
for at least 18 months. The mentor
attorney advises the newer attorney
on cases, observes trial skills, and
recommends if the attorney is ready
to work independently.9 While an
attorney mentor program is more
easily established at the macro level,
you can work with senior and well-
qualified parent attorneys in your
courtroom to establish a similar
program for new attorneys seeking
court-appointments from you.
Finally, you can be an effective
trainer in your courtroom everyday by
demonstrating your knowledge and
understanding of the law as applied
in each case. It is also helpful for you
to participate in legal trainings to see
firsthand what parents’ attorneys are
learning or to participate as a
presenter.
. As a judge, you are in a leadership
Appoint counsel when a case first
comes to court, or before the first
hearing. Parents are at a clear disad-
vantage if they do not have counsel
for the duration of their child welfare
case. It is essential that appointments
are made in the first instance because
of the stringent timelines for parents
to reunify with their children. You can
accomplish this in your courtroom. In-
form parents of their right to counsel.
Make appointments at the first calling
of every case, or work out a system
with your local child welfare agency
to make sure that indigency screenings
and referrals for attorneys are made
before the first calling of the case in
court.
It is also important that the same
attorney represent the parent for the
entire case. Perhaps more than in any
other area of the law, the role the par-
ent attorney plays on behalf of her
client outside the courtroom is as
important as the role she plays inside
the courtroom. She can encourage her
client to work on her case plan, hold
the agency accountable under the case
plan, help identify services, and gather
41 CLP Online —www.childlawpractice.org
complete and accurate information on Is it appropriate for judges to
the parent’s progress to present to the hold parent attorneys account-
court.
able for quality representation?
Parents may not know what to expect
Ensure parents’ attorneys are
of their attorneys. If they are not happy
fairly and timely compensated
with their attorneys they might not
and carry reasonable caseloads.
know if they can get new ones or how
An unfair wage or overwhelmingly
to do so. They might be scared to say
large caseload can negatively impact
they are not happy with their represen-
parent representation quality. Parent
tation. As a practical matter, if judges
attorneys should receive compensation
do not hold parent attorneys account-
that is competitive with the salary of
able for quality representation, who
government attorneys and other court-
will?
appointed attorneys. The ABA Parent
Parents typically do not have the
Attorney Standards recommend that
ability to select, hire or discharge the
parent attorney caseloads not exceed
attorney representing them. They are
left with little power to influence the
quality of representation. From where
Recognize parent attorneys
the parents sit, their attorneys likely
who are doing their job well, know and are on friendly terms with
even if it is just a few words of the caseworkers, agency attorney, and
judge – all of whom seem to have in-
thanks.
credible power over the parents’ lives.
It is up to the judge to not only level
100 clients per full-time attorney.
the playing field, but to ensure the ap-
pearance of a level playing field.
role in your court. In many jurisdic-
Many judges are uncomfortable
tions, the court administration sets
getting involved in evaluating attor-
attorney fees. Make recommendations
neys. The image of a judge is of an
to your court administration about rea-
impartial arbiter, detached and objec-
sonable caseloads and compensation.
tive. Setting standards for parents’
Know what the government attorneys
attorneys and requiring that they meet
and children’s attorneys are paid and
those standards may feel uncomfort-
advocate for parent attorneys to re-
able or outside your role as a neutral
ceive a competitive wage.
fact finder. However, the ABA Model
Code of Judicial Conduct reveals there
Hold parents’ attorneys accountable.
are no rules prohibiting judges from
Once you have let attorneys know your
involving themselves in questions of
expectations, put a system in place to
representation in this manner. Several
hold them accountable. Recognize par-
rules actually support this sort of judi-
ent attorneys who are doing their job
cial oversight (see Sidebar 2).
well, even if it is just a few words of
thanks. Develop a transparent process
Does judicial oversight of parent
for determining when a parent attorney
representation quality create a
is not meeting the Standards and what
conflict of interest for the parents’
steps can be taken to remediate the
attorneys appearing before you?
situation. Make it clear that attorneys
Sometimes parents’ attorneys worry or
who do not provide quality representa-
argue that judicial oversight of parent
tion will no longer receive appoint-
representation creates a “conflict of
ments from you. Since many judges
interest” for the attorney. The parent
struggle in this area, the remainder of
is the client and should be directing
the article discusses the practical and
the representation. The person evalu-
ethical limits of holding attorneys ac-
ating the attorney’s performance and
countable for good practice.
making sure that the attorney has a
future pay check (i.e., continues to get
Vol. 31 No. 3
appointments) is the judge. This is not
a conflict of interest under the ABA
Model Rules of Professional Conduct,
which define “conflict of interest” spe-
cifically as a conflict between clients.
That said, the concerns are valid.
A recent evaluation of the court-
appointed representation in child
protection proceedings in Texas found
that “attorneys may be discouraged
from taking an adversarial trial ap-
proach because of certain judges’ at-
titudes” and that “some attorneys feel
that, in order to continue receiving ap-
pointments, they must conform to the
judges’ wishes.”10 The evaluation not-
ed that this tied in with “some judges’
views that normal trial procedures and
advocacy skills have no place in a CPS
case.”11
To protect against this sort of out-
come it is important to: (1) be aware
of this issue; (2) create a culture of
quality representation in your court
and remind yourself that you want par-
ents’ attorneys who act like attorneys
—this might make your job harder
when you have to preside over a con-
tested hearing, but ultimately having
information from all parties will make
your decision making better; and (3)
make sure that your expectations for
attorneys and the consequences of not
meeting them are clear and that any
evaluation process is transparent (see
Sidebar 3).
Whether parent attorneys are
full-time attorneys contracted with
the county or state, or attorneys in
private practice paid on a case-by-case
basis, within certain bounds, you can
and should ensure that only attorneys
that meet the minimum standards can
serve and be compensated by the state.
It may be easier, and perhaps more
appropriate ethically, to have court-
appointed parents’ attorneys in your
county to be selected and approved by
an independent panel (e.g., the court
administrator and another person with
knowledge of the standards for parent
representation, such as the director of
the Court Improvement Project).
You can improve practice by
pushing the group of parent attorneys
42 CLP Online —www.childlawpractice.org
as a whole for quality representation
rather than focusing on a single at-
torney. This avoids the appearance of
singling out one attorney over others.
You can spell out minimum standards
of representation in the parent attor-
ney’s contract to receive appointments.
However, that does not absolve you,
the judge, of the responsibility to run
your courtroom on a day-to-day basis
in a way that ensures competent
representation.
Ultimately, if a court-appointed
parents’ attorney appearing before you
is not providing competent representa-
tion to his clients you should correct
the situation. That could mean sitting
down with the attorney and explaining
your expectations, or it could mean
no longer providing that attorney with
court appointments.
Conclusion
Judges can take several steps to ensure
parents receive quality representation.
In reality, it is difficult for judges to
mange and monitor attorney perfor-
mance and poor quality representation
for parents persists in many places.
While you are not obligated to en-
sure the parents appearing before you
receive quality representation, doing
so promotes fairness, gives you confi-
dence that your decisions are based on
all relevant information, and ultimate-
ly improves the lives of the children
and parents appearing before you.
Through your actions and inac-
tions, you influence the level of advo-
cacy in your courtroom. You should
create a courtroom culture where par-
ent attorneys are encouraged to zeal-
ously represent their clients at every
stage of the proceeding, to stand their
ground, and to never abdicate their
responsibility to advocate for their cli-
ents – not to the child welfare agency
and not even to you, the judge.
Elizabeth Thornton, JD, is an attorney
at the ABA Center on Children and the
Law. Her work at the Center includes
a focus on improving representation
for parents.
Judge R. Michael Key has served on
the juvenile court bench in Troup
County, Georgia, since 1989, and is
a partner in the law firm of Key &
Gordy, P.C. He is a former president of
the National Council for Juvenile and
Family Court Judges.
Endnotes
1
National Council of Juvenile and Family
Court Judges (NCJFCJ). Resource Guidelines:
Improving Court Practice in Child Abuse and
Neglect Cases, 1995, 22.
2
See e.g., Courtney, Mark. Jennifer Hook
and Matt Orme. Evaluation of the Impact
of Enhanced Parental Legal Representation
on the Timing of Permanency Outcomes
for Children in Foster Care, 2011. <http://
partnersforourchildren.org/pocweb/userfiles/
PRP%20Discussion%20Paper.pdf>
3
NCJFCJ. Resource Guidelines: Improving
Court Practice in Child Abuse and Neglect
Cases, 1995, 22.
4
American Bar Association. Standards of
Practice for Attorneys Representing Parents
in Abuse and Neglect Cases, 2006, 38. <http://
www.americanbar.org/content/dam/aba/
administrative/child_law/repstandwhole.
authcheckdam.pdf>
5
Laver, Mimi. “A Cut Above: What Makes
a Parent Attorney Great.” ABA Child
Law Practice 27(4), 2008, 62. <www.
childlawpractice.org>
6
A summary of court improvement program
activities for each state is available at http://
apps.americanbar.org/abanet/child/home.cfm.
7
42 U.S.C. 474(a)(3)(B).
8
The ABA National Project to Improve
Representation for Parents Involved in the
Child Welfare System frequently provides
web-based parent attorney trainings and
training materials are available at: http://
www.americanbar.org/groups/child_law/
projects_initiatives/parentrepresentation/
parentrepresentation_trainingmaterials.html
9
ABA Center on Children and the Law.
“Summary of Parent Representation Model.”
<http://www.americanbar.org/content/dam/aba/
publications/center_on_children_and_the_law/
parentrepresentation/summary_parentrep_
model.authcheckdam.pdf>
10
Supreme Court of Texas Permanent Judicial
Commission For Children, Youth & Families.
Legal Representation Study: Assessment of
Appointed Representation in Texas Child-
Protection Proceedings, 2011, 39.
11
Ibid.
Vol. 31 No. 3
In the Field
Charting New Territory
Bringing Trial Skills Training to the Gila River Indian Community
by Claire Chiamulera

T ucked in the desert 20 miles south of Phoenix, Arizona sits the

Gila River Indian Community, home to members of the Pima
and Maricopa tribes. Among its seven districts, Sacaton serves as
the community’s unofficial capital. Here sits the community’s tribal
court, a beautiful modern structure with a southwestern
design. the Indian Child Welfare Act (ICWA)
The ABA Child Welfare Trial
Skills project team met here on a
December morning to do something
they’d never done before. The project
has delivered child welfare trial skills
training to states throughout the coun-
try for 19 years. The training sharpens
trial skills of child welfare attorneys
through an intensive one-day session.
For the first time, the project would
train legal professionals who practice
in a tribal court on an Indian reserva-
tion.
CLP spoke with Anne Marie
Lancour, JD, state projects director at
the ABA Center on Children and the
Law. Lancour, who directs the ABA’s
trial skills training, shared the unique
preparations, highlights, and lessons
learned.
Q&A What prompted your
work with the Gila
River Indian
Community?
The ABA provides trial skills training
to model court jurisdictions as part of
a contract with the National Council
of Juvenile and Family Court Judges
(NCJFCJ). The Gila River Indian
Community is a model court jurisdic-
tion. The NCJFCJ asked if we could
deliver trial skills as part of the agree-
ment we had with them.
Q&A Talk about the signifi-
cance of bringing the
training to an Indian torneys had considerable child welfare
community.
There is a growing recognition of the
importance of protecting heritage and
culture in child welfare cases involv-
ing Native American children and
families. Model courts are reaching
out more to tribes. There is now a
[This training] represents part
of the growing effort to rec-
ognize heritage and culture in
tribal child welfare cases.
federal Resource Center focused on
tribes, and federal laws and programs
have expanded protections in these
cases. We thought it would be a good
opportunity for the trial skills project
to expand what we normally do in
state child welfare courts. It represents
part of the growing effort to recognize
heritage and culture in tribal child
welfare cases.
Q&A Who
attended and what
was their experience
level?
The chief judge of the Gila River
Indian Community and four judges
from Indian communities outside Gila
River attended. We also had attorneys
who represent children in tribal and
state court, prosecutors who represent
the child welfare agency’s interests,
and parent attorneys. It was a highly
experienced group; one judge had 34
years experience and most of the at-
trial experience.
Q&AHow did you prepare?
We researched Arizona’s
child welfare law since some
of the attorneys were practicing in
state court and tribal court. But we
also had to focus on some different
laws, including federal laws such as
and the Gila River Indian Commu-
nity’s tribal code.
We always try to be culturally sen-
sitive, but it was much more important
in this situation. I had the federal law
background but I really hadn’t looked
at the cultural competence side. As
part of trial skills, we send a checklist
before a training asking about the ju-
risdiction’s laws, standard child wel-
fare practices, common acronyms, and
any unique issues. This checklist was a
useful information-gathering tool.
We were fortunate to partner with
NCJFC, who assigned a staff person to
this model court. She had experience
working with Native American com-
munities and she provided background
on Indian culture generally and spe-
cific to this tribal community.
I also researched various Indian
tribes and even studied what you do
when you go to a different country.
That’s essentially what you’re doing
when you’re going to an Indian com-
munity. You’re on sovereign land. It’s
a foreign nation and you have to be
respectful when you go to a different
culture. That’s not to say we’re not
respectful when we go to a state, but
since this was the first time training in
an Indian community, we wanted to be
sure we were culturally sensitive.
Q&A Did the training change
as a result of your
preparation?
A lot of what we do with trial skills is
fast-paced. We had to change things up
and scale back. We took out some trial

43 CLP Online —www.childlawpractice.org Vol. 31 No. 3

 amongst themselves and come up with
Trial Skills for Child Welfare Attorneys an answer. They got it right after talk-
ing it through and it was much more
Trial Skills for Child Welfare Attorneys is the ABA Center on Children and
powerful than if we had given them
the Law’s flagship trial skills training program. For 19 years, this one-day
the answer.
session has offered specialized, targeted training to child welfare attorneys
throughout the country.
Who should attend: child welfare agency attorneys, children’s attorneys, Q&A Were there unique
practices within the
parent attorneys, and caseworkers who testify in court Indian community that
Training highlights: you accommodated?
■■ Learn strategies in dependency cases to help children achieve permanency I researched protocols when you go
quickly. to an Indian community. You ask for
■■ Strengthen your ability to organize large caseloads and prepare for trial. permission to be on sovereign land.
■■ Expand your knowledge of the rules of evidence. You give small gifts as an acknowledg-
■■ Improve your skills in examining and cross-examining witnesses in court. ment that you’re going to a different
■■ Gain practical experience working through child welfare court case culture and environment. You ask to
scenarios with personalized feedback. be welcomed and ask for permission.
We started the training by asking for
Format: lectures, demonstrations, and mock trial exercises permission to be on the land. Next an
Special features: elder give a blessing and welcomed us.
■■ Each program is specially adapted for local practice and state law. We then presented modest gifts as a
■■ Participants receive continuing legal education credits. sign of respect and appreciation.
■■ Participants get a trial notebook to help organize and prepare for their We reoriented our trial court ex-
next case. ercises so they took place in tribal
■■ Trainers are experienced child welfare attorneys. court and applied the Gila River Indian
Community’s code, law, and rules.
Learn more: Their practices are slightly different,
To learn about trial skills training opportunities in your state, contact Anne but the tribal code mirrored many state
Marie Lancour, AnneMarie.Lancour@americanbar.org child welfare protections by focusing
on permanency and safety. The level of
exercises so we would have enough can change things up and still have a proof needed to prove some elements
time for in-depth conversations and productive and meaningful training. of the case differed too so we had to
observations. tailor some case facts. On the whole, it

Q&A Can
The biggest shift in focus was you give an exam- wasn’t that different from many states
recognizing that getting the “right” we’ve been in because the tribal code
ple of how this shift in
answer and encouraging the partici- mirrored state laws.
focus and emphasis on Native communities tend not ter-
pants to get what we would consider
relationship building played out? minate parental rights because of the
the legally correct answer was not as
We had several practitioners who prac- belief that children and families are
important as the actual process. We
ticed in tribal and state court. A ques- part of the community. They favor
didn’t necessarily have to be the expert
tion came up about applying ICWA guardianship, so we changed a case
in getting to the answer. It was more
to whether the child’s parental rights scenario so it would go from a shelter
the process of working together and
should be terminated. We had two care or removal proceeding through a
garnering a philosophical agreement.
trainers who regularly do ICWA train- guardianship proceeding rather than a
It involved more engagement than we
ing, in addition to me. We all knew termination of parental rights
usually do for trial skills but it was
what we’d give as a federally appro- proceeding.
critical.
priate ICWA answer. My co-trainers
Q&A Were
We also had to focus more on
were ready to jump in with an answer the participants
relationship and trust building. This
usually comes to us in a different way.
that legally would have been correct receptive and open to
about balancing the jurisdictional learning?
We always build trust when we go into
questions between ICWA and state Some participants were reserved in the
a state, but this definitely took some
law. However, it was more important morning when we do a mix of lecture,
time and patience. It helped me realize
to let the community members realize discussion, and demonstration. Some
I don’t always have to do things the
we trusted them to know their state people took a little while to win over.
way we’ve done them for 19 years. We
and federal law so that they could talk When we got to the afternoon though,
44 CLP Online —www.childlawpractice.org Vol. 31 No. 3
everyone had come along and fully
participated in the exercises. By recog-
nizing their culture, learning what we
needed to do, and acknowledging our
way wasn’t the only way, they came
around and bought into the training.
knowledge within their commu-
nity. They are the experts and are
the greatest resource of help for
the children and families in their
community.
2. It’s good to come together as a
group to share ideas and issues
realize is important. It’s important
to recognize where children come
from and the importance of culture
and values. Children are usually
better off if they can stay with
their culture and families in their
communities rather than be placed

Q&A What value came from
involving the judges?
Whenever you bring people
together for training like this you
always learn from each other. By hav-
ing five judges attend this training, the
attorneys were able to hear what their
judges want to hear in these kinds of
hearings. It’s always helpful for prac-
titioners to learn what the judges want
to hear.
The judges participated as attor-
neys in the trial court exercises. By
seeing judges involved, the attorneys
were more willing to do so them-
selves. In the early days, we thought
involving judges might have a chilling
effect on the attorneys. We’ve realized
that having judges be active partici-
pants leads to a better training because
the attorneys see judges as part of the
team and realize they can benefit from
training as well.
Q&A Iswould
there anything you
do differently in
future trainings?
I would involve the team more in
the prep work and help get them up
to speed on the culture and what we
needed to do. I did a lot of research
but should have shared that with the
team more and brought them along.
There were times when team members
were ready to jump in with an answer
because that’s how we usually oper-
ate. With this training, the process was
more important. It was more important
for participants to share with each
other and arrive at an answer than for
us to give them the right answer.
that you’ve wondered about or in foster care or institutions.
Q&A Any
haven’t been sure how to handle. advice for
It’s good to pause and take time
practitioners based on
to go to training to sharpen your
skills and get reinvigorated to go this experience?
back and do what you have to do For practitioners, it’s hard some-
every day when you are at your times, we get very bogged down in
desk or going to court. the day-to-day routine and we forget
the importance of culture in the big-
3. The balance between tribal gest sense. I learned that that culture
codes and states’ child welfare is important in the Gila River Indian
laws is not that different. We Community, but also that culture is
all have fundamental interests in important to everyone. We need to
keeping families whole and help- make sure we’re recognizing people’s
ing children in the community. culture and heritage and how it im-
Their beliefs in keeping family to- pacts children.
gether and trying to support fami-
lies and the Indian heritage and
CLP Editor Claire Chiamulera
community are actually what the
conducted and wrote this interview.
rest of the country is beginning to
Practice Essentials
Healthy Beginnings, Healthy Futures:
A Judge’s Guide
Research on early brain development highlights
how crucial the early years are in the development
of infants, toddlers, and preschoolers. This very
young population is especially vulnerable to the
effects of abuse and neglect that set the stage for
their long-term health outcomes.
Produced with the National Council of Juvenile
and Family Court Judges and the Zero to Three
National Policy Center, this guide for judges addresses the wide array of
health needs of very young children in the child welfare system. By shar-
ing current research on physical health, child development, attachment,
infant mental health, and early care and education, the authors provide tools
and strategies to help judges promote better outcomes for babies, tod-
dlers, and preschoolers who enter their courtrooms. Order online: http://
apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.
AddToCart&pid=3490003B

Q&A What three things do

you hope participants
For more resources on representing infants and very young children:
www.americanbar.org/groups/child_law/projects_initiatives/child_and_
took home from the adolescent_health/child_health.html
experience?
1. There is a great wealth of

45 CLP Online —www.childlawpractice.org Vol. 31 No. 3

Research in Brief
Family Drug Court Helps Families Reunify, Saves Money
A new study adds to the growing
body of research showing family
drug courts improve treatment out-
comes for parents and promote family
reunification. The study also found the
courts save money in the long run.
The researchers tracked families
involved in the Baltimore City Fam-
ily Recovery Program (FRP) in Bal-
timore, Maryland. The FRP began
in 2005 and serves families involved
in the child welfare system due to
parental substance abuse. It helps par-
ents achieve sobriety through regular
judicial monitoring, team support,
comprehensive case management,
and prompt access to substance abuse
treatment.
The Study
The study followed 400 child wel-
fare cases. Half of the cases involved
parents referred to the FRP. The other
half comprised a comparison group
of child welfare-involved families not
referred to the FRP. The comparison
group was matched to the demograph-
ic characteristics of the parents in the
FRP group based on gender, race/eth-
nicity, allegation, and age of youngest
child on the petition.
The FRP sample included all cases
admitted to the FRP program within
six months of the date of the shelter
care petition. These cases entered the
system between August 2005 and De-
cember 2006 and were followed for 12
months. One parent was followed per
case, usually the mother unless the fa-
ther was the only parent named in the
petition.
The researchers reviewed child
welfare and treatment data to gather
information on:
■■ Parent demographics
■■ Family history of child welfare
system involvement
■■ Date of entry and exit into substi-
tute care
■■ Permanency decisions, including
46
■■
reunification
Time to achieve permanency
Time in treatment
■■
■■ Treatment modalities
■■ Treatment completion
The cost-savings of the FRP
program were determined by analyz-
ing costs of the program itself (drug
court staff, operating costs, treatment
costs, wraparound services, etc.) com-
The study reaffirms the benefits of family drug courts for families
and the child welfare system.
pared to costs of non-FRP cases. The
researchers also factored in avoided
costs, such as costs associated with
long-term foster care/guardianship
and adoption subsidies.
Findings
The study showed positive results in
three areas:
Treatment outcomes improved.
■■ FRP parents entered treatment
sooner than those not in the pro-
gram (57 days vs. 88 days after the
petition date).
■■ FRP parents stayed in treatment
longer than those not in the pro-
gram (138 days vs. 82 days).
■■ FRP parents had higher treat-
ment completion rates than those
not in the program (64% vs. 36%).
Child welfare outcomes
improved.
■■ Children of FRP parents spent
less time in nonkinship care
placements than children in the
comparison group (252 days vs.
346 days).
■■ Non-FRP program cases reached
permanency faster than FRP
cases (249 vs. 325 days)(possibly
CLP Online —www.childlawpractice.org
explained by longer time in treat-
ment).
■■ FRP cases resulted in signifi-
cantly more reunifications than
comparison group cases (70% vs.
45%).
The FRP saved money.
■■ FRP cases cost less to the child
welfare system than other child
welfare cases since families used
less foster care and were more
likely to reunify.
■■ The FRP was estimated to
produce a cost savings of $5,478
per family (cost savings are partly
attributed to future realized cost
savings).
■■ The FRP creates “opportunity
resources” by freeing money in
one area that can be used in another
(e.g., reducing time in care results
in an opportunity for a foster care
placement to be filled by another
child).
The study reaffirms the benefits
of family drug courts for families and
the child welfare system. Positive
treatment and child welfare outcomes
mean more families stay together.
The researchers noted other potential
benefits include promoting improving
quality of life and attachment between
parents and children, and reducing
traumatic disruptions for children in
the child welfare system.
Access this study:
“Show Me the Money: Child Welfare
Cost Savings of a Family Drug Court,”
by Scott W.M. Burrus, Juliette R.
Mackin, and Michael W. Finigan, was
published in the Juvenile and Family
Court Journal 62(3), Summer 2011.
Vol. 31 No. 3
 New Study Tracks Serious Physical Abuse among Hospitalized Children
T he number of children hospitalized
with serious injuries due to physi-
cal abuse is highest among children
age one year and younger, a new study
finds. That rate climbs even higher
among infants covered by Medicaid.
Other trends found by the study
included:
■■ Abused children with serious inju-
ries stay in the hospital longer than
nonabused children.
■■ A fair number of seriously abused
children die as a result of their
injuries, particularly infants.
■■ The longer hospital stays and criti-
cal care required to treat serious
injuries drive up hospital costs.
The Study
Researchers from the Yale University
School of Medicine and the Johns
Hopkins School of Medicine focused
on children who are hospitalized with
serious injuries due to physical abuse.
While data exists on the national oc-
currence of child maltreatment, it has
not identified serious cases of physical
abuse, such as children hospitalized
with head injuries, fractures, or burns
caused by abuse, according to the
researchers.
Using data from the 2006 Kids’
Inpatient Database (KID), a national
dataset of hospitalized children, the
researchers estimated the incidence of
Children under age one experienced the highest incidence of
serious abuse
hospitalizations due to physical abuse
among children under 18 years of age.
They looked at demographic charac-
teristics, mean costs, and length of
stay among three groups of hospital-
ized children: abusive injuries, nona-
busive injuries, and “other” reasons for
hospitalizations.
The 2006 KID is a weighted
sample of discharged patients from all
nonrehabilitation hospitals prepared
47
by the Healthcare Cost and Utiliza-
tion Project. The sample includes
3,739 hospitals in 38 states, represent-
ing 88.8% of the U.S. population in
2006. Hospital discharge information
includes demographics, payment, hos-
pital type, diagnoses, external cause
of injury based on the International
Classification of Diseases, and dispo-
sition (e.g., discharge, death).
Children with serious abusive
injuries, defined as children who en-
tered the hospital with an injury that
was coded as abuse or assault, were
grouped into the following injury
types: fractures, traumatic brain inju-
ries, abdominal injuries, burns, skin
injuries/open wounds, and “other.”
The researchers did not include chil-
dren who entered the hospital with
injuries that were suspicious for abuse
but who were later diagnosed with
nonabusive injuries.
Findings
The number of children hospital-
ized with serious injuries caused by
physical abuse in 2006 was 4,569 – a
rate of 1.5% per year. Three-hundred
of these children died because of their
abuse. The mean length of hospital
stay for the children in the abuse
group was 7.4 days compared to 3.9
days for children with nonabusive
injuries.
Children under age one experi-
enced the highest incidence of
serious abuse (58.2 per 100,000).
The researchers noted this rate was
almost twice the rate for abusive head
trauma (30 per 100,000). They urged
interventions aimed at preventing
infant abuse similar to those that have
broadened awareness of shaken baby
syndrome and head trauma.
CLP Online —www.childlawpractice.org
A significant number of children
in the serious abuse group received
Medicaid (71.6%). The incidence
of serious abuse injuries was highest
among infants on Medicaid in their
first year of life: 133 per 100,000. This
represented a rate nearly six times
higher than children not on Medicaid.
Only 36.6% of children with nona-
busive injuries and 48.5% of children
hospitalized for other causes received
Medicaid. This finding emphasizes the
link between poverty and child abuse
and the need for prevention.
The national cost of the hospitaliza-
tions due to serious abusive inju-
ries was $73.8 million in 2006. The
researchers explained that this rate is
similar to a rate cited in a 2005 study,
but differs significantly from a widely
cited figure of $6.6 billion by Prevent
Child Abuse America.
Of the children who were hospital-
ized for serious abusive injuries,
58.8% were males and 41.2% were
females. Nearly half of the children
were white (45.3%), while 25.5% were
African American, 19.6% Hispanic,
and 9.5% were grouped as “other”
race/ethnicity.
Limitations
The researchers noted the following
limitations of the study and their po-
tential impact on the findings:
■■ Only hospitalized children were
studied. Never-hospitalized chil-
dren, and children who died before
entering the hospital, were not
counted, likely resulting in an un-
derestimate of the problem.
■■ Hospitalizations during a specific
year were counted, not children,
so children who were hospital-
ized twice in a year could have
been counted twice, although the
researchers took steps to avoid this
outcome.
■■ The researchers relied on physi-
cians’ diagnoses of abuse and
Vol. 31 No. 3
 assigning child abuse codes. This
approach depends on the accuracy
of the diagnosis and the proper as-
signment of injury codes.
Tips for Advocates
Having data on abused children who
are hospitalized with serious injuries
can help gauge the extent of the
problem and related costs. If tracked
over time, it can also play a role in as-
sessing whether prevention efforts are
reducing serious abuse-related injuries
The high incidence of serious inju-
ries among infants suggests a need to
intervene with pregnant and newly
parenting mothers and fathers. A
number of resources and supports ex-
ist to help vulnerable, at-risk families
and give them the tools they need to
promote the health and well-being of
their infants and toddlers.
■■ See the CLP article “Advocacy for
Pregnant and Parenting Teens” Vol.
American Bar Association
Center on Children and the Law
740 15th Street, NW, 9th Floor
Washington, DC 20005-1022
48
28(7), available at www.american-
bar.org/content/dam/aba/migrated/
child/PublicDocuments/Advocacy_
for_Young_or_Expectant_Parents_
in_Foster_Care.authcheckdam.
pdf pitalization. Targeting prevention
■■ Nurse home visiting programs can
also be a valuable support for new
or expecting parents. For informa-
tion on nurse home visiting pro-
grams, see www.childwelfare.gov/
preventing/programs/types/hom-
evisit.cfm 
Advocates working with families with
very young children who have entered
the child welfare system due to abuse
should know how to support these
children and advocate for healthy out-
comes. A range of supports are avail-
able to help promote their physical and
mental health, and help them achieve
permanency. (See Healthy Beginnings,
Healthy Futures, available at www.
americanbar.org/groups/child_law/
CLP Online —www.childlawpractice.org
projects_initiatives/child_and_adoles-
cent_health/child_health.html)
Poverty is a clear risk factor for seri-
ous abusive injuries leading to hos-
efforts in poor communities through
services that serve these families
is key: community health clinics,
community centers, early child care
programs, homeless and domestic vio-
lence shelters, churches and faith orga-
nizations, food pantries, among others.
Helping families meet their needs and
address daily stresses can help prevent
issues from escalating to abuse. Inte-
grating efforts to promote healthy par-
enting can also make a difference.
Access this study:
The study, “Using U.S. Data to
Estimate the Incidence of Serious
Physical Abuse in Children,” was
published in Pediatrics 129(3), March
2012.
—Claire Chiamulera
Presorted
First Class
U.S. Postage
PAID
Permit #163
Annapolis, MD
Vol. 31 No. 3