Our Mental Health Hat
MHAS provides legal representation in virtually every civil commitment proceeding in Louisiana—during the initial stages of confinement of persons with behavioral health issues as well as after the commitment has occurred—in order to comply with a federal court order and state law. Staff attorneys negotiate and settle many of these matters before trial, saving court and professional time, and direct many clients to alternatives less restrictive than full-time institutionalization.
The mandate to provide legal counsel to adults in behavioral health facilities also extends to minors admitted for behavioral health or substance abuse treatment pursuant to juvenile commitment statutes and in delinquency matters when mental incapacity to proceed is raised and when there has been a plea of insanity. In addition, admission to a mental institution as a dispositional alternative in any child in need of care (CINC—our child protection cases), family in need of services (FINS), or delinquency proceedings cannot occur without representation of the child by an attorney appointed from MHAS.
Practicing mental health law, especially in juvenile court, requires specialized knowledge. MHAS attorneys are trained in behavioral health law, juvenile law and procedure, special education law, disability law, and the laws and regulations governing the responsibilities of service providers. They visit the institutions where placements are made, as well as other less restrictive settings. They become familiar with psychotropic medications, psychiatric/psychological evaluations, assessments, expert testimony, and the services and forms of treatment offered by various providers. MHAS attorneys also represent emotionally disturbed juveniles to keep them in school with appropriate services and attend Interagency Service Coordination conferences for juveniles at risk of losing their placements. When a child from one parish is hospitalized in another area of the state, the MHAS attorneys from both areas coordinate their efforts to make sure the youth is visited and that appropriate court proceedings are requested. The agency learns of the hospitalization either because MHAS already represents the child or because MHAS receives a physician’s certificate for a minor (PCM) for every child “voluntarily” admitted by a parent, tutor, or caretaker into any behavioral health treatment facility in the state.
Our Child Welfare Hat—Our Past
Louisiana has taken giant steps in reforming the system of providing legal representation to children and youth in abuse and neglect proceedings. In 2003, House Concurrent Resolution 44 created a multidisciplinary Task Force on Legal Representation in Child Protection Cases to “study systemic issues and concerns related to the provision of legal representation of abused and neglected children . . . in child protection cases and to make recommendations on how these services may be more effectively and efficiently provided and funded.” Prior to this reform, there were no standards for representation of children or parents in child protection cases, there were no qualifications for representing children or parents in these cases, and different organizations represented parents and children in these cases in each judicial district. The lack of standards, qualifications, and coordination led to prolonged case times and inconsistent rulings across the state. Following the 2003 resolution, representatives from the three branches of government, along with numerous public and private stakeholders, committed resources to develop a plan for systemic statewide reform of the existing deficient and decentralized efforts. The reform has been embraced by both the former and current administrations, supported by a Louisiana Supreme Court ruling, and guided by legislation enacted in five legislative sessions.
In 2005, at the request of the task force, MHAS agreed to conduct pilot programs to provide representation to children in two judicial districts covering three parishes (or counties for you non-Louisianans). It was recognized that the MHAS attorneys had experience representing at-risk children and doing the things the task force deemed important to child welfare, such as traveling to see their clients, knowing how to obtain and read educational and mental health records and reports, working closely with other agencies that regularly serve children, and having a special knowledge of community services. After the success of the pilot programs in 2005–2006 and 2006–2007, the legislature placed responsibility for statewide representation of abused and neglected children with the Child Advocacy Program (CAP) of MHAS, and statewide representation of parents was placed with the Louisiana Indigent Defender Board.
A five-year planned transformation required continued state funding from the Department of Children and Family Services (DCFS) for payment of attorneys as well as for building the infrastructure necessary to fully implement the new system. Implementation of the rollout plan progressed incrementally, although not at the pace originally intended due to funding shortages. In anticipation of budgeting for fiscal year 2010–2011, a proposal was made to the task force for expedited implementation of the statewide system of representation. The task force considered the current foster care caseload statewide and the present capacity of the MHAS/Child Advocacy Program in formulating its options. When asked to compress the remaining 2.5 years of the rollout into 2.5 months, MHAS supported the task force’s option of bringing another program in to represent the children in the areas not yet served by MHAS, rather than compromising the quality of the work with doubled caseloads and an underdeveloped infrastructure.
Our Child Welfare Hat—Our Present
Currently, MHAS has 35 attorneys working out of 9 offices across the state of Louisiana. Twenty-three of these attorneys exclusively represent children and youth in child protection cases. Six attorneys, while doing mostly child protection work, split the remainder of their time between adult and juvenile mental health cases, supervisory duties, and administrative responsibilities. Although the remaining six attorneys handle the bulk of the adult and juvenile mental health cases in the agency, all of the attorneys are qualified to appear in child welfare cases, in accordance with Part III of Rule XXXIII of the Administrative Rules of the Supreme Court of Louisiana. To date, 11 of the 35 attorneys have obtained their certification as child welfare law specialists (CWLSs) through the National Association of Counsel for Children (NACC).
We practice a client-directed representation model in Louisiana and take a holistic approach to this representation. That is, what happens in court is only one part of what is happening in that child’s life. The child could be facing difficulties obtaining an appropriate education or getting appropriate services. The mental health expertise of the staff is particularly helpful because many of the children have mental health needs. Staff attorneys receive extensive training on these and other issues that occur outside the courtroom. MHAS’s CAP attorneys represented over 3,070 children in abuse and neglect proceedings during the 2020–2021 fiscal year and handled almost 12,000 hearings. In addition, we still have our responsibilities under mental health law to represent children with behavioral issues. So, while our agency might not be the assigned program to represent the children in a child protection case in a particular parish, we are still appointed in some courts to represent the child and provide support and recommendations for appropriate mental or behavioral health services and placements.
To ensure that children’s voices are heard in court, it is important for us to build rapport with the children so they feel comfortable sharing their points of view and wishes. Clients are often visited in their placements, at school, at medical appointments, and, of course, in court. One measure of the attorneys’ involvement in the lives of the children is the number of related meetings or hearings attended by attorneys outside the courtroom. Primary among these meetings are the family team meetings and conferences. However, attorneys also attend permanency planning staffings, individualized education plan meetings, interagency service coordination meetings, and quarterly residential treatment team meetings. CAP attorneys participated in over 1,600 related meetings this year, during COVID, when fewer meetings were being held; the number of related meetings is often much higher
The public health emergency due to COVID-19 did not prevent MHAS from fulfilling its mission. Hearings, client visits, meetings, and trainings were held by videoconference. Each office arranged for the safe delivery and reception of mail, court notices, and service of process. Client files were accessed through the agency’s online case management system.
The following are examples of our in-court advocacy:
- A CAP attorney questioned the medications prescribed for his client, resulting in a finding that all of the medications prescribed were contraindicated in this case.
- A CAP attorney reunited a child with her family members by educating the court and DCFS on the Indian Child Welfare Act.
- A CAP attorney ensured her client was able to have access to both sides of her family, not just one, even after the original child protection matter was technically closed.
- A CAP attorney used the temporary restraining order process to ensure his clients were adopted by a family that was open to maintaining contact with the biological family, rather than by a family that would have cut off all contact.
- A CAP attorney facilitated the reunification of her clients with their grandmother in another state after their father died in a motorcycle crash and their mother was found to be unfit to raise them due to substance abuse.
- A CAP attorney persisted in securing an open and supportive adoptive placement for her LGBTQ+ client, which has resulted in the child having no further self-harm attempts and no hospitalizations since finding this home.
- A CAP attorney contacted our New Orleans office to have someone visit with the client prior to a review hearing and find out his current status. The attorney was able to provide the court with a current and approved discharge plan and the results of the home study on the child’s aunt. The agency was unaware of the plan or that the home study had been completed. The judge continued agency custody with the provision that when Office of Child Services verifies the plan and placement with the aunt, custody could be relinquished.
- A CAP attorney was able to prove that a cerebral palsy diagnosis at birth did not account for the current condition of the 15-year-old before the court. After combing through 15 years of medical records and chronologically tracking the child’s diagnoses, medications, weight fluctuations, and hospitalizations, it was shown that the child was in a fetal position, with no teeth and stage 4 decubitus, due to medical neglect. The client also had a confirmed sexually transmitted disease at 4 years of age.
- A CAP attorney championed the reunification of her client with the biological father, despite his immigration status and over the objections of DCFS. The attorney not only convinced the court to allow the father to have custody of his own child, but she also convinced the father and the court to agree to give him custody of the child’s half-sibling. The children had never been separated before, and because of the attorney’s hard work, they are still together.
- A CAP attorney filed a petition to terminate parental rights, joined by the assistant district attorney on the case, against the mother and the child welfare agency. It was successful and survived an appeal.
In addition to our legal representation both inside and outside the courtroom, our staff has always been involved in child welfare policy decision-making, legislative advocacy, court improvement projects, and subcommittees. Early on, it was recognized that effective advocacy happens from the bottom up (in the courtroom, classroom, etc.) and from the top down (through state and national efforts). For years, two of our attorneys have worked with our Law Institute’s Children’s Code Committee, which is responsible for writing and updating the code, which is a compilation of all of the laws relating to juveniles—statutes in CINC, FINS, juvenile mental health, adoption, and delinquency matters. In preparation for the upcoming legislative session in spring 2022, statutes are being written and reworked to include safety and reasonable efforts language, to ensure that children, already recognized as parties in their CINC cases, are afforded the same level of rights and due process given to other parties, and the status of sibling rights in Louisiana foster care is being explored. Another attorney worked with our child welfare agency (DCFS) in developing the guidelines for the new extended foster care program and is one of the original 10 attorneys chosen for the NACC state coordinators program to be a liaison between NACC and the practitioners, courts, organizations, and law schools in Louisiana. Another of our senior attorneys is part of the Family Justice Initiative, a national collaborative of parents’ attorneys, children’s attorneys, researchers, educators, and advocates working together to identify the necessary system attributes, in-court and out-of-court advocacy, and attorney supports that are necessary to ensure high-quality legal representation when child welfare courts make life-changing decisions about their families.
For the first time, we were invited to collaborate with DCFS in the development of its most recent Program Improvement Plan (PIP), and we continue to be very active in working on PIP deliverables by participating in workgroups that have reworked the Child in Need of Care Benchbook for Juvenile Judges and bench cards available to all Louisiana CINC judges, developed model templates for petitions and orders for all types of CINC hearings, and collaborated with judicial leadership in three pilot project sites to help build the capacities of local communities by collaborating to provide a comprehensive array of services and a strategy for effective delivery of services. Our attorneys also design and provide trainings to other attorneys and child welfare stakeholders through the Louisiana Pelican Center, our Court Improvement Program (CIP) program, and participate in the center’s various committees on education, CIP, continuous quality improvement, and diversity.
Our Child Welfare Hat—Our Future
In 2018, the Children’s Bureau updated the Child Welfare Policy Manual to allow Title IV-E agencies (DCFS in Louisiana) to be reimbursed for the administrative costs of legal representation for children and parents in child welfare cases. The policy revision allows the Title IV-E agency to claim administrative costs of independent legal representation by an attorney for a child who is a candidate for Title IV-E foster care or in foster care and his or her parent to prepare for, and participate in, all stages of foster care legal proceedings, usually beginning with court hearings related to a child’s removal from the home. These administrative costs of legal representation must be paid through the Title IV-E agency. After a lot of blood, sweat, and tears (literally and figuratively), we were finally able to begin receiving reimbursements for the work done by our full-time CAP attorneys and support staff starting July 1, 2019. We are currently in the process of expanding the reimbursable claims to include our our attorneys who work part-time in our CAP and eligible overhead expenditures.
Because of the infusion of IV-E dollars, for the first time in decades, MHAS has the financial resources to afford some luxuries like Westlaw for legal research, sending more attorneys to child welfare–related conferences, improving technology within the agency, and copies of the Children’s Code Handbook for each attorney. We are also in the beginning stages of creating a multidisciplinary program of representation by finally being able to hire social workers in three of our offices, and we hope to eventually add peer advocates as well. MHAS has also been able to contract with a New York firm to provide resiliency training and support for our entire staff. Child welfare attorneys see severely traumatized children on a daily basis and lose clients much too frequently. When you add to that a 100-year flood, three destructive hurricanes, and a pandemic, it was obvious that we needed to find a way to take better care of ourselves so we could continue to take the best care of our clients. So far, so good.
There are many other activities we participate in and thousands more stories we could tell. Some have smaller but still important outcomes—like the story of the attorney who bought a bed for her client so he could reunify with his mother and not have to sleep on the floor—and others have larger outcomes—like the story of the attorney who appealed her case up to the Louisiana Supreme Court and got a de novo review and a complete reversal of the lower court, in her client’s favor, or the attorney who was able to present a victim’s impact statement over the internet for her 4-year-old client who had been sexually abused by her dad at 9 months of age, resulting in an additional 40-year sentence.
We can’t share all of the stories in this small space. But we can share with you the truth that this program is important to our attorneys and the children of Louisiana and has made a difference in their lives. We may not be able to change their past or give them back their missed childhoods, but we can give them the ability to actively participate in their present and future.
