The Judge’s Role in Ensuring Quality Representation for Parents

Vol 31 No 3

You are a judge hearing child abuse and neglect cases. It is your morning calendar. You ask the clerk to call the first case – an adjudication and disposition on a complicated case involving domestic violence allegations. The agency has recommended placing the children in foster care and supervised visitation with the parents.

When the clerk calls the case, the court-appointed attorney for the mother steps into the hallway and yells, “Is Mrs. Smith here?” Two minutes later all counsel are present and Mrs. Smith is seated at counsel table with her attorney. Mrs. Smith’s attorney informs the court that his client agrees to the petition allegations and agency recommendations. You can see Mrs. Smith trying to whisper something in his ear. He shushes her and the case proceeds by stipulation.

As Mrs. Smith and her attorney leave the courtroom you hear her ask, “So, what just happened?” The attorney rushes back in for another case. 

You have noticed this attorney seldom recognizes his clients. You sense he does not take time to meet his clients before hearings as he often seems confused and frustrated after hearings. You wonder if your decisions would change if you had a better picture of the families appearing before you. Would case outcomes differ if the parents’ attorney helped parents engage in appropriate services? You want the parents appearing before you to have quality representation, but you are not sure how to change the status quo.

This article explores questions that may arise as you explore your role in improving parent representation in your jurisdiction.
 

Why should judges be concerned with the quality of representation parents receive?  

As a judge hearing child welfare cases, you should be concerned with the quality of representation parents appearing before you receive. Attorneys present information to you, the judge, through argument, and direct and cross-examination of witnesses. To make well-informed decisions you must receive complete and accurate information. You cannot get a complete and accurate picture of the families appearing before you if a party lacks competent representation.1

Quality legal representation for parents supports good decision making. It upholds confidence in the judicial system and basic values of due process. Additionally, research shows that providing parents with quality legal representation leads to improved outcomes for children and youth in abuse and neglect cases.  (See Sidebar 1)

The American Bar Association, through its Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases (the “ABA Parent Attorney Standards” or “Standards”) and the National Council for Juvenile and Family Court Judges through its Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases, emphasize the role child welfare judges play in ensuring parents in abuse and neglect cases receive high-quality representation.

The Resource Guidelines call on judges to take “active steps to ensure that the parties in child abuse and neglect cases2 have access to competent representation,” noting that “[e]ach party must be competently and diligently represented in order for juvenile and family courts to function effectively.” 3

Similarly, the ABA Parent Attorney Standards call on judges to recognize the importance of the parent attorney’s role, with the knowledge that “when competent attorneys advocate for parent clients, the judge’s job becomes easier.” 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 representation, you must first understand what quality parent representation looks like. The ABA Parent Attorney Standards outline duties for parent attorneys and give guidance about working with clients, preparing for court, involvement with case planning, and post-hearing obligations.

In general, parent attorneys should: (1) empower clients to direct their representation; (2) spend time getting to know their clients and communicate 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, identifies his client’s strengths, proposes solutions to the court tailored to the client’s needs and, when necessary, effectively litigates to achieve his client’s objectives.

Equally, if not more important, a good parents’ attorney acts as a counselor 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 everyone in the court process is paid by that same government.

  • How does that parent stay motivated to work her case plan?
  • How can she look weeks or months down the road to getting her child back?
  • How can she trust this system enough to partner with it in order to succeed?

Parents’ attorneys have the responsibility to build trust with their clients and to help their clients successfully navigate what often feels like a frightening, confusing, and unfair system.

There are several things you can do to ensure parents appearing before you receive quality representation. Some things you can do in your individual courtroom, at the “micro” level. Others will be easier to accomplish by working with your court system administration at the “macro” level.

Below are some concrete steps that the ABA Parent Attorney Standards suggest to support quality parent representation in your courtroom.

Recognize the importance of the parent attorney’s role.

This is one of the easiest and most important things you can do. Be sure to show respect for parents and their counsel. This sends the message that they are integral to good decision making. This influences not just the hearings but the tone of the entire child welfare process. One parent advocate noted, if the judge treated every parent appearing before him as if that parent was the mayor’s wife, there would be a great improvement in not just parent representation and the expectations put on attorneys, but on the child welfare system as a whole.

Establish uniform standards of representation for parents’ attorneys.

Standards of practice put parents’ attorneys on notice that a certain level of representation is expected and required for the attorney to continue to receive appointments. Establishing standards of practice for parents’ attorneys is usually best done at the macro level – through state legislation, by your state’s administrative office of the courts, or through your jurisdiction’s court administration. 

If these larger systems are unable to develop practice standards for parents’ attorneys, this is something you still can accomplish in your courtroom. Provide parent attorneys seeking appointments from or appearing before you with standards you have adopted for your courtroom. Require that attorneys agree to comply with the standards before they are eligible to be appointed to represent parents in your courtroom.

Establishing clear standards of practice for parents’ attorneys is directly related to the first step described above. If you do not set reasonable expectations for parents’ attorneys, you send a clear message that the parents’ attorney role is not important or respected. Other people in the child welfare process can see that and it promotes a negative and counterproductive view of parents’ attorneys and, ultimately, their clients.

Ensure attorneys are well-trained by setting minimum training requirements.

Child welfare practice involves a complicated and unique area of law. Parents’ attorneys have the awesome responsibility of advising and advocating for clients who could potentially permanently lose custody of their children. Parents’ attorneys need to know the substantive law, be competent trial advocates, have broad knowledge of issues families involved in child welfare face, and be familiar with appropriate and accessible services.

The ABA Parent Attorney Standards recommend that parents’ attorneys receive a minimum of 20 hours of relevant training before they are eligible to receive appointments and a minimum of 15 hours of relevant training each year thereafter. Setting mandatory minimum training requirements is best accomplished through your court administration. However, you can require that attorneys receiving appointments from you meet a minimum training requirement. Let attorneys know your training expectations and ask them to certify that they will complete the requisite training each year.

If there are no relevant local training opportunities, you can often find quality child welfare-specific trainings through your state’s court improvement program.  You can also work with your local or state child welfare agency to develop trainings for parent attorneys. The child welfare agency can help fund these trainings with Title IV-E funds.  National organizations focused on child welfare practice are often an excellent resource for training curricula and materials.  

Another way to ensure that parent attorneys are well trained is to institute a parent attorney mentoring program where more senior attorneys assist new or more junior parent attorneys. For example, in Massachusetts the Committee for Public Counsel Services, which oversees all court-appointed child welfare attorneys, requires parents’ attorneys to complete substantive child welfare training and trial skills training.

In addition, 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.  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. 

Appoint counsel when a case first comes to court, or before the first hearing.

Parents are at a clear disadvantage 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. Inform 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 parent 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 complete and accurate information on the parent’s progress to present to the court. 

Ensure parents’ attorneys are fairly and timely compensated and carry reasonable caseloads.

An unfair wage or overwhelmingly large caseload can negatively impact parent representation quality. Parent attorneys should receive compensation that is competitive with the salary of government attorneys and other court-appointed attorneys. The ABA Parent Attorney Standards recommend that parent attorney caseloads not exceed 100 clients per full-time attorney.

As a judge, you are in a leadership role in your court. In many jurisdictions, the court administration sets attorney fees. Make recommendations to your court administration about reasonable caseloads and compensation. Know what the government attorneys and children’s attorneys are paid and advocate for parent attorneys to receive a competitive wage.

Hold parents’ attorneys accountable.

Once you have let attorneys know your expectations, put a system in place to hold them accountable. Recognize parent attorneys who are doing their job well, even if it is just a few words of thanks. Develop a transparent process for determining when a parent attorney is not meeting the Standards and what steps can be taken to remediate the situation. Make it clear that attorneys who do not provide quality representation will no longer receive appointments from you. Since many judges struggle in this area, the remainder of the article discusses the practical and ethical limits of holding attorneys accountable for good practice.

Is it appropriate for judges to hold parent attorneys accountable for quality representation?


Parents may not know what to expect of their attorneys. If they are not happy with their attorneys they might not know if they can get new ones or how to do so. They might be scared to say they are not happy with their representation. As a practical matter, if judges do not hold parent attorneys accountable for quality representation, who will?

Parents typically do not have the ability to select, hire or discharge the attorney representing them. They are left with little power to influence the quality of representation.  From where the parents sit, their attorneys likely know and are on friendly terms with the caseworkers, agency attorney, and judge – all of whom seem to have incredible power over the parents’ lives. It is up to the judge to not only level the playing field, but to ensure the appearance of a level playing field.

Many judges are uncomfortable getting involved in evaluating attorneys. The image of a judge is of an impartial arbiter, detached and objective. Setting standards for parents’ attorneys and requiring that they meet those standards may feel uncomfortable or outside your role as a neutral fact finder. However, the ABA Model Code of Judicial Conduct reveals there are no rules prohibiting judges from involving themselves in questions of representation in this manner. Several rules actually support this sort of judicial oversight (see Sidebar 2).

Does judicial oversight of parent representation quality create a conflict of interest for the parents’ attorneys appearing before you? 

Sometimes parents’ attorneys worry or argue that judicial oversight of parent representation creates a “conflict of interest” for the attorney. The parent is the client and should be directing the representation. The person evaluating the attorney’s performance and making sure that the attorney has a future pay check (i.e., continues to get appointments) is the judge.

This is not a conflict of interest under the ABA Model Rules of Professional Conduct, which define “conflict of interest” specifically as a conflict between clients. That said, the concerns expressed 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 approach because of certain judges’ attitudes” and that “some attorneys feel that, in order to continue receiving appointments, they must conform to the judges’ wishes.”  The evaluation noted that this tied in with “some judges’ views that normal trial procedures and advocacy skills have no place in a CPS case.”  

To protect against this sort of outcome 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 parents’ attorneys who act like attorneys – this might make your job harder when you have to preside over a contested 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 as a whole for quality representation rather than focusing on a single attorney. This avoids the appearance of singling out one attorney over others. You can spell out minimum standards of representation in the parent attorney’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 representation 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 performance and poor quality representation for parents persists in many places. While you are not obligated to ensure the parents appearing before you receive quality representation, doing so promotes fairness, gives you confidence that your decisions are based on all relevant information, and ultimately improves the lives of the children and parents appearing before you.

Through your actions and inactions, you influence the level of advocacy in your courtroom. You should create a courtroom culture where parent attorneys are encouraged to zealously represent their clients at every stage of the proceeding, to stand their ground, and to never abdicate their responsibility to advocate for their clients – 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.

 

Sidebar 1: Parent Representation Programs that Improve Outcomes

Data from regional parent representation programs show that when parents receive quality or enhanced 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 independent nonprofit serving clients in Manhattan and the Bronx. It provides clients with a multidisciplinary team of an attorney, social worker, and parent advocate. CFR primarily represents clients after a petition to remove the child to foster care has been filed by the child welfare  agency, but represents 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.1
  • 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.2
  • Preliminary data indicates that CFR has a re-entry rate of approximately 1%, which favorably compares with a New York statewide foster care re-entry rate of 15%.3
  • 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.4

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 investigation, 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 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.5 The CFA team helped prevent the need for foster care placement for 112 children in less than two years.6

Washington’s Office of Public Defense (OPD) Parent Representation Program is a statewide system of parent representation. The program serves a mix of urban, rural, and suburban communities. It funds, trains, and supervises parents’ 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 represent 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. Evaluations have consistently found that the program is succeeding in meeting its goals and has achieved better outcomes 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 parents, and better access to services.7 For example, a 2010 program case audit found a 39% increase in the rate of reunification.8

The most recent and comprehensive evaluation examined the program’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 permanency and shortens the time to permanency for children in foster care for all permanency outcomes.9

  • 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% increase in the rate of guardianship.10

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.11
  • The majority (68%) of children in the evaluation sample who attained permanency reunified with parents.12
  • For those children and families who could not achieve reunification, adoptions and guardianships in OPD counties were accelerated by approximately one year.13

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: elizabeth.thornton@americanbar.org).

Sources
1. Center for Family Representation (CFR), “Our Results.” 
2. Ibid.; “Facts about Children in Foster Care in New York,” March 2011.
3. See Office of Children & Family Services. “Statewide Re-entry Rate.”
4. CFR, “Our Results.”
5. Phone interview with Vivek Sankaran, director, Detroit Center for Family Advocacy, October 19, 2011.
6. Ibid.
7. See e.g., Oetjen, Jason. Improving Parents' Representation in Dependency Cases: A Washington State Pilot Program Evaluation, 2003; Harper, Carol J., Kathy Brennan & Jennifer Szolonki. Dependency and Termination Parents' Representation Program Evaluation Report, 2005.
8. OPD Report, audited by the Washington Center for Court Research. Washington State Administrative Office of the Courts. Reunification and Case Resolution Improvements in Office of Public Defense Parents Representation Program, 2010.
9. 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. 
10. Ibid. at 4.
11. In 2001, the average time to reunify was about 244 days, 11% of which is 26.84 days or nearly one month. Ibid.
12. Ibid. 
13. Ibid. At first look, the improved time to permanency associated with PRP appears more striking when looking at the adoption and guardianship timelines. However, the decrease in time to reunification affects more children because most children achieving permanency, reunify. Also, because reunifications happen more quickly (taking an average of 244 days prior to PRP involvement) as compared to adoption (902 days) and guardianship (704 days) there is less room to decrease time in care.


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 “perform 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, Washington piloted an enhanced parent representation program in two of its counties. Initial evaluation of the pilot found a significant reduction in the number of days it took courts to hold shelter care, disposition, and permanency hearings.  More importantly, there was a significant increase in the number of children and families reunifying when parents received high-quality representation. The program has since expanded to two-thirds of the state’s counties.

Rule 2.9, Ex Parte Communication, prohibits judges from initiating, permitting, 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 communication rule. In reviewing or evaluating attorney performance, specifics of pending cases should not be discussed.


Sidebar 3: A Judge’s Expectations for Parents’ Attorneys

Attorneys who do not meet these expectations will not receive appointments to represent parents in my court room.

  1. Treat your clients with dignity and respect.
  2. Know the law.
  3. Communicate with and counsel your clients regularly, explain the legal consequences of your clients’ actions or inactions, and help your clients find and engage in appropriate services, if needed.
  4. Work with your clients and opposing counsel to avoid litigation and resolve conflict when doing so benefits your clients.
  5. Competently litigate for your clients’ positions, when necessary.
  6. Understand and appreciate the magnitude of the decisions this court is making about your clients’ lives and respect the responsibility you have in impacting those decisions through your advocacy. 

 

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. 
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.
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: 
9. ABA Center on Children and the Law. “Summary of Parent Representation Model.” 
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.
12. Gemma, Carolyn. “Quality Representation of Parents Improves Outcomes of Families.” ABA Child Court Works 6(1), 2003.

 

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