April 01, 2018 Book Review

Improving Child Representation: An Overview of the Field and Recommendations for Improvement

By: Ann M. Haralambie

The last forty years have seen a tremendous maturation of the field of representation of children in the child welfare system. Since 1974 the Child Abuse Prevention and Treatment Act (CAPTA), a federal law, required the appointment of an undefined “guardian ad litem,” not necessarily an attorney, to represent children in child welfare proceedings. When I began practice in 1977, in a state that provided attorneys for all children in child welfare cases, the attorneys who took on such representation had no particular expertise or training, no clear guidance on what their role was, and no institutional support for expert resources. Not surprisingly, this type of work was often a stop-gap, where young lawyers could gain some trial experience in “kiddie court” for two or three years until they were able to move on to more “important” and lucrative work. Young lawyers were expected to represent children pro bono or for very little pay.

In 1978, the ABA Young Lawyer’s Division created the ABA Center on Children and the Law, and a multidisciplinary group in Denver started the National Association of Counsel for Children. Forty years later, there are students entering law school to specialize in child welfare law. There is scholarship and literature to support children’s  lawyers,  children’s law offices, and multidisciplinary support in many jurisdictions. Two national symposia were convened and their recommendations published and discussed. The ABA has promulgated practice standards and a model act dealing with child representation, both of which are reprinted as appendices in this book. The Uniform Law Commission (ULC) promulgated a uniform act on child representation, and although it has not been enacted in any state, the ULC’s decision to draft a uniform law on child representation reflects a recognition of the importance of competent child representation.

In 2009, the U.S. Children’s Bureau funded a seven-year project, the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep). The project was conducted by the Child Advocacy Law Clinic at the University of Michigan Law School, with independent data analysis by the University of Chicago’s Chapin Hall. QIC-ChildRep provided the first empirically based model for child representation. Professor Donald N. Duquette was the principal investigator on the project. The resulting final report and book is titled Children’s Justice: How to Improve Legal Representation of Children in the Child Welfare System. While the book represents the collaborative product of the project, Donald Duquette is singularly well-qualified to be the author. He has been involved on the front lines from the emergence of the field of child welfare representation. He founded the first Child Advocacy Law Clinic at the University of Michigan Law School in 1976, where he pioneered the use of attorney/social worker teams to represent children  in child welfare cases, and he wrote the first book in the field in the year 1990. From this vantage point, he provides a broad and well-referenced overview of the development of the field that culminates in practice and policy recommendations on how to improve child representation, codified in the QIC Best Practice Model of Child Representation in the Child Welfare System, and recommendations for changes in the child welfare system itself.

The book begins by outlining the weaknesses in child representation, which the QIC-ChildRep was created to address. The current state of child representation reflects a wide diversity of experience, competence, role definition, training, and compensation. Duquette traces the evolution of child representation from CAPTA through the ABA Model Act, including the critical professional debate about the proper role and duties of children’s lawyers from both academics and practitioners. Understanding this history is important because the lines drawn in the debate continue to impact how legislatures, judges, and individual attorneys view appropriate representation. Duquette is an honest broker in describing and critiquing the various sides of the debate. The book presents a thorough literature and research review, and a much less thorough needs assessment based on review of almost every state’s laws and practices governing children’s lawyers as of 2010 and on the reports states must file with the federal government, concentrating on ten sample states. The book also reports the feedback from a number of stakeholder focus groups, including foster care alumni, who represent the consumer of child representation. The QIC investigators looked at five exemplary children’s law offices and  the important training and multidisciplinary support they provided to the attorneys. It is unfortunate that the book did not describe in more detail those offices and how they provide excellent representation to their child clients.

Going beyond the theoretical arguments defining the role of the child’s representative, the book tackles the important issue of what the lawyer’s duties are in a practical manner and describes a useful structure for carrying out those duties. There was a strong national consensus from all of the reviewed sources on almost all aspects of the role and duties of the child’s representative, with a lingering disagreement about whether the child’s lawyer should advocate the child’s wishes or best interests (although that difference was described as “narrowing”).

With the groundwork completed, the project developed the QIC Best Practice Model and the Six Core Skills training package, which are explained in detail. The topical list has Six Core Skills: (1) Enter the Child’s World, (2) Assess Child Safety (and protect the child without over- reacting), (3) Actively Evaluate Needs, (4) Advance Case Planning, (5) Develop Case Theory, and (6) Advocate Effectively. The initial training addresses these skills over the period of two days utilizing methods optimized for adult learning rather than a straight lecture format. One of the features of the training is to emphasize nonadversarial and problem- solving approaches in addition to adversarial proceedings, noting that child welfare cases are uniquely collaborative, requiring cross-disciplinary exchange. The protocol follows up the two-day training with quarterly coaching and sixty- to ninety-minute facilitated small group meetings with peers. This training program was piloted in Georgia, where the attorney might be expected to serve the dual role of representing the child’s best interests as well as expressed wishes, and in Washington State, where  the attorney’s role was almost always to represent the child’s expressed wishes.

Although I did not access the online materials for this book review, the book advises that the PowerPoint slides, handouts, and videos used in the training are available on the QIC-ChildRep and ABA Center on Children and the Law websites. One chapter of the book goes into some detail about the actual training and exercises. This is somewhat difficult to summarize in a book, and it is clearly less satisfying to read the descriptions than it would be to actually participate in the training. But because Children's Jusitce is a report of a grant-funded project, it makes sense to include the detail. It certainly presents a blueprint for a Court Improvement Project or other providers of training for children’s representatives. The chapter reveals the relative superficiality and narrow scope of many required training programs and should serve to motivate courts and children’s law offices to improve their training regimes. The chapter is less useful for teaching the skills themselves than it is for pointing to areas that must  be considered and highlighting the need for further training, as well as describing implementation of the protocol. One powerful take-away is the value of a more structured, checklist approach to representation, including QIC’s use of the excellent safety assessment developed by Therese Lund and Jennifer Renne.

The next chapter looks at how the core skills were implemented in the two pilot states. Follow-up with attorneys who received the initial training and ongoing meetings showed that most felt the training had advanced their level of practice, and empirical analysis showed that the training in fact improved their skills, at least in terms of implementing certain tasks. In some ways this chapter is like reading through a stack of conference evaluation comments, which is more important for evaluating the model than for use in one’s own practice. Again, it is important to remember that this book is the final report of a project, not merely a treatise or a practice guide.

Following this largely anecdotal chapter are four chapters excerpted from the Chapin Hall empirical analysis of the QIC-ChildRep data from the two pilot states, involving 37 local judicial districts, 263 attorneys, and 4,274 children. These are number- and chart-dense social science research chapters, which provide information on such issues as methodology, demographics, compensation, organizational supports, responsibilities, attorney attitudes, and the tasks actually performed based on the four research studies that were conducted. One interesting, but not surprising, finding was that most of the trained attorneys representing children were relatively experienced general practitioners who handled a small number of child welfare cases. The analysis suggests that good children’s attorneys could be recruited and trained from among lawyers at various stages of their careers. Most of the attorneys found the work personally rewarding but the financial compensation inadequate. Only a minority had organizational support individuals available, such as investigators and social workers. Some, but not all, of the findings support the argument that dedicated child welfare law offices offer a number of advantages over less centralized models of representation.

As is the case with most research studies, there were not many strong, statistically significant findings breaking new ground. The  analysis  dealt only with quantifiable behaviors that could be measured by survey responses, and not with other important effects of implementing the QIC training. It is certainly difficult to measure the benefit of a particular type of attorney training and practice in child welfare cases. There are too many variables in the cases and too many valuable aspects of representation that cannot be measured empirically. As the book states, “[n]ot everything that counts can be counted.” Notwithstanding the limitations in the data upon which the Chapin Hall analysis was performed, the analysis does provide some empirical information on child welfare representation of children. There were various differences between the attorneys who had participated in the QIC training than in the control group in case activity and communication. Perhaps more important than the process, though, is comparison of the outcomes of children represented by the QIC-trained attorneys and the control group of attorneys; the comparision tended in the direction of better outcomes for children represented by the QIC-trained attorneys.

The studies demonstrated that attorneys were eager to participate in training to improve their skills and that they were more involved with their child clients after participating in the training. The book suggests that we also look at “procedural justice” itself as a valuable outcome for children.

Based on the empirical findings of the studies, the QIC hypotheses are that

improved representation of children would benefit not only the children’s experience with the legal process but also the ability of the system to deliver desirable outcomes for each child and that lawyers practicing according to   the QIC Best Practice Model will indeed result in more carefully calibrated interventions into the family and more efficient handling of cases.

Chapter twelve describes and evaluates a QIC study in Flint, Michigan, involving a five-attorney law firm representing children either with or without the assistance of a social worker. (The multidisciplinary team and control cases were represented by the same lawyers.) The study demonstrated outcome benefits when the social workers were involved. In the first six months of their cases, children represented by a team were more likely to have the cases dismissed pre-adjudication. When children were removed from their homes, they were more likely to be placed with relatives, less likely to be placed in foster care, and less likely to have termination of parental rights actions filed. These outcomes benefitted both the children and their families, and the individualized social work services provided up front, on an ongoing basis, and under the direction of lawyers’ teammates rather than the state were likely more palatable to the families. Part of the challenge in child welfare is that the state may have services available that would benefit the family, but the intrusion into the family’s autonomy is seen as threatening and adversarial, creating a barrier to the family’s participation. Having social work services offered through the children’s and families’ advocates is much less threatening and therefore more palatable and more likely to be utilized. Further, most attorneys are not social workers and do not have the same skill set, experience, and resource knowledge that social workers do. Legal representation combined with in-house social work support is a valuable model that should be more fleshed out in the book.

The  study  also  revealed  significant  problems  with  the  lawyers’ willingness to effectively collaborate with the social workers. Two of the five lawyers and one social worker dropped out of the study relatively early on, and by the end of the study, the final two social workers declined to continue to work with the firm. The suggestions that attorneys show more respect for social workers and allow more access and communication with them are well-taken. There are certainly children’s law offices that work very well with social worker teams, including the “exemplary” offices mentioned in the book; however, including this small sample study may be counterproductive if it dissuades practitioners from using social workers in their representation. Although it goes beyond the scope of a report on a research study, it would have been helpful for this or another chapter to highlight the experiences of multidisciplinary teams in specialized child welfare offices where the attorney–social worker relationship was more successful. The chapter does raise some practical issues and the very real ethical conflict between the lawyer’s confidentiality duty and the social worker’s status as a mandated reporter and adherence to a social worker’s ethical duties. But the book offers no resolution for this ethical dilemma, which may have been beyond the scope of the QIC Project.

Although the QIC Model addresses children’s direct court appearance, it misses the opportunity to provide a more robust discussion and critical analysis of this important trend. One omission from the materials referenced in the book is the 2012 National Council of Juvenile and Family Court Judges technical assistance bulletin, Seen, Heard, and Engaged: Children in Dependency Court Hearings, which supports having children attend their child welfare court hearings and provides guidance for how to do so. It is surprising that the project did not attempt to gather and analyze empirical data on children’s presence at court hearings or on attorneys’ decisions about whether to bring children to court or not. This is an area ripe for further research and for consideration by children’s representatives. Different readers will want to read this book in different ways and for different purposes. Policymakers and scholars may be particularly interested in the literature review and data analysis. Those responsible for developing child representation programs and conducting training will be particularly interested in the details of the Six Core Skills training and follow-up. Lawyers who represent children may be more interested in the QIC Model itself. I would guess that most readers will not read the entire book cover-to-cover. They may skim through some chapters and study others deeply. All readers will want to read the last chapter of the book, which is based on research gathered over the past forty years; how the QIC-ChildRep has contributed to the field; and suggestions for how we can move forward to improve child welfare, not just child representation. The first recommendation is that we adopt a public health model of child protection, leaving the legal system as the response to only the most severe cases. Because neglect cases far outnumber abuse cases, positive action to enhance parenting and offering family-friendly, supportive, and voluntary services can eliminate the need for many of the cases to come into the legal system.

When cases must come to court, the early and consistent appointment of a lawyer for the child is essential. Despite CAPTA’s requirement for representation for all children, states are not consistently complying with the requirement. The book recommends federal enforcement of this requirement, starting with calling on the U.S. Children’s Bureau to conduct an inquiry of all states to determine whether all children receive this individual advocacy. States are encouraged to adopt the ABA Model Act, utilize the QIC Best Practice Model for attorney standards, and provide the Six Core Skills training. Because different communities have different case volumes, QIC recommends using one of several organizational models for concentrated child-representation practice. Where dedicated child welfare legal offices are not practical, courts might utilize a few attorneys on a panel, rather than spreading the cases among many lawyers, or use a statewide networking contract model. We should facilitate a career path for “passionate and committed” attorneys at any stage of their legal careers and limit caseloads to those that can be handled well. A strong QIC recommendation is that communities adopt the practice of collaborative, multidisciplinary teams representing children. Lawyers should receive training that clarifies their roles, the scope of their responsibility, and tasks to improve their performance. Child Welfare Law Specialist certification can improve the quality of representation. Finally, there is a call for more research to look at what type of attorney activities yield the greatest impact; whether the impact varies across case types, outcomes, and practice contexts; and whether increased attorney activity leads to better outcomes for children.

Of course, the eight pages of Appendix A are the practical culmination of the QIC Project, which is the QIC Best Practice Model of Child Representation that covers both the duties of the child’s representative and the necessary organizational and administrative supports. That format follows the ABA Standards in a more simplified structure. Areas where QIC adds new language are highlighted for easy visual reference. The ABA Standards and ABA Model Act are the remaining two appendices. Together these three appendices provide a blueprint for twenty-first- century representation of children in the child welfare system.

Children's Justice is a solid and important contribution to the growth and maturation of children’s representation. It builds on what has gone before it and invites further development and progress. Its empirical analysis supports the anecdotal experiences of those in the trenches. While it cannot completely bridge the gap between the practitioners and commentators who largely favor client-directed representation and the judges and legislators who largely favor best interests representation, QIC-ChildRep and Children's Justice demonstrate that how lawyers are trained and what they do in furtherance of their representation is not different for the two roles. Improving the quality of representation  for either role should result in a more satisfying experience for the child clients, qualitatively better and more efficiently presented evidence upon which the court can make a decision, and better outcomes for children and their families.

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Ann M. Haralambie

JD, CWLS

Anne M. Haralambie is a private practitioner in Tucson, AZ. She is a Certified Family Law Specialist and Certified Child Welfare Law Specialist. She was a principle drafter of the ABA Standards of Practice for Lawyers Who Represnt Children in Abuse and Neglect Cases. She is the suthor of The Child's Attorney: A Guide to Representing Children in Custody, Adoption and Protection Cases (1993) and co-author and co-editor of Child Welfare LAw and Practice: Representing Children, Parents, and State Agencies in Abuse, Neglect, and Dependency Cases (3d ed. 2016), among other books and articles.