The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
New ABA policies adopted at the American Bar Association’s August 2011 annual meeting address three timely issues of interest to children’s advocates. In addition to the policies described below, the ABA approved a new Model Act for states on providing legal representation to children (see the September 2011 CLP).
Recognizing the serious problem of human trafficking, specifically sex and labor trafficking of minor children, a new ABA policy:
- urges legislative changes so these children will be placed in protective custody as dependent children, rather than prosecuted as juvenile offenders;
- calls for laws that make suspicions that a child has been trafficked a basis for mandatory reporting to child protective services agencies which are urged to create specialized child trafficking units;
- calls for mandated screening for trafficking victimization among youth in runaway and homeless youth facilities or of those entering juvenile justice or child welfare agency custody to further identify victims;
- urges legislatures to: establish needed “safe housing” and other services for these victims, give courts authority to issue protective orders to shield children from traffickers and, give courts the authority to make civil orders that permit compensation for, and access to services on behalf of, child victims.
State data and reporting practices
The ABA also asks states to collect data on victims served, mandate reporting to law enforcement whenever any child goes missing from foster care or a residential placement (as these youth become prime targets of traffickers), and requests that programs pay special attention to the needs of trafficked girls, boys, and gay and transgender youth. To aid state and local efforts, Congress is urged to enhance funding for child trafficking responses, including legal services to its victims.
The policy addresses child trafficking victims who are not U.S. citizens, many of whom are undocumented minor victims of abuse, neglect, or abandonment by their parents. The ABA calls for them to be treated similarly to citizen child victims, with referral to state or local child protective services agencies for services, and for assistance pursuing federal immigration relief that might be available to them.
When such agencies aid these children, the policy urges the federal government to reimburse those costs, and if children are sent home, across the U.S. border, that this only happen through use of recognized best practices. Finally, the ABA urges that lawyers, judges and others be trained on legal issues pertaining to child trafficking, and that model or uniform anti-trafficking laws be developed and implemented.
Children Impacted by U.S. Immigration Enforcement
Three separate policies seek reforms in how children, both noncitizens and citizens, and their families are treated when a parent or guardian is apprehended by immigration authorities and detained or deported. In the first policy, the ABA urges federal reform to assure that when an adult responsible for a child’s care is detained, that information on their location is shared with state child welfare agencies and courts involved in the child’s case, and that such agencies and courts also stay in contact with immigration authorities.
The ABA urges a change in federal law so that the length of time in immigration detention, or a parent’s removal from the U.S. for an immigration violation cannot be a sole basis for failing to make “reasonable efforts” to reunify children. And, as with the child trafficking policy, aggregate data collection and reporting on children impacted by a parent or guardian’s detention or deportation is sought.
For detained parents or guardians, the second policy calls for their having access to an attorney who can advise them on legal issues related to their left-behind children. It also calls for a referral to an attorney who can represent them in state court custody, dependency, and other legal actions related to their children. Parents are to be given an opportunity to meaningfully participate in those court proceedings and to access parenting-related services, even while in detention.
Screening for immigration relief
Advancing earlier ABA policy on unaccompanied undocumented children, the third new policy calls for their prompt screening for immigration relief. It asks that their repatriation outside the U.S. be done in a way that promotes safety and stability. Based upon a problem some undocumented adult caretakers of children have noted, the policy further says that children, born in the U.S. of undocumented parents, should have access to birth, paternity, and other vital records without regard to their parent’s immigration status.
Finally, the third policy calls for federal support to train state judges and attorneys involved with cases of children of noncitizen parents. Topics include the intersection of federal immigration law, state child welfare law, applicable international conventions, and standards and protocols affecting children detained, separated from, or removed from their adult caretakers due to immigration enforcement.
New Time Standards for Dependency and TPR Cases
The ABA approved a new set of Model Time Standards for State Courts. These standards address the full range of civil and criminal cases heard within state courts. They include recommended time standards for resolving “neglect and abuse” (dependency) and termination of parental rights (TPR) cases. The dependency time standards call for:
- 98% of cases to have the child’s “Preliminary Protective Hearing” held within 72 hours of their removal from home and that the case adjudication proceeding start within 60 days of the child’s removal;
- 98% of all dependency cases to reach the disposition stage within 90 days of a child’s removal.
- 75% of all cases where a child receives a “permanency plan” (that is, a plan finalized by the court at a “Permanency Hearing”) within 270 days of the child’s removal from home (and, as clearly intended by federal law, that 98% of children have such plans finalized within 360 days of their removal).
The standards also address the timing of the termination of parental rights finding. They call for:
- 90% of all cases to be finalized within 120 days of the filing of the TPR petition; and
- 98% of all TPR cases to be concluded within 180 days of the filing of the TPR petition.
Commentary to the standards notes that only 14 states had time standards for these proceedings. However, it pointed to 2008 data showing that actual time far exceeded what these standards recommended.
The new standards are meant to update 1992 ABA-approved time standards, and to implement the Adoption and Safe Families Act’s time standards and guidelines of the National Council of Juvenile and Family Court Judges.
The ABA House of Delegates is the ABA policymaking body comprised of over 500 members. They meet twice a year at the ABA midyear and annual meetings. Except in rare cases, only the House can pass/approve ABA policy. Once approved, it can be cited as official policy of the ABA.
Howard A. Davidson, JD, is the director of the ABA Center on Children and the Law, Washington, DC.