May 01, 2013

Pretrial Conferences in New York City Child Protection Cases

Claire Chiamulera, Anne Marie Lancour, and Cristina Ritchie Cooper of the ABA Center on Children and the Law

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.

In 2010, New York City formalized the use of pretrial conferences across its five counties. Twenty-seven family court parts, or courtrooms, that handle child protective cases throughout the city now use pretrial conferences facilitated by court attorneys. CLP spoke with New York City Family Court Chief Counsel Elizabeth Barnett and Director of Data Analysis Virginia Gippetti to learn more about this effort.

How long have pretrial conferences been used in New York City?

In 1999, as an NCJFCJ model court, one innovation that New York City Family Court Judge Sara P. Schechter brought was conferencing. We had not been using conferencing in abuse and neglect cases before this, at least not in a formalized way. She thought that to expedite permanency, the quicker you frontloaded services, the better off the case and the outcomes for the child and family. This laid the groundwork.

Conferencing worked in a small court with a manageable caseload then spread to four of our counties (one courtroom per county). At the time, we had about 41,000 kids in care in New York City alone. We didn’t have sufficient resources to handle it, but the conferencing concept caught on and everyone began to see the value of it over time.

In 2009, we started conducting pilot projects for the pretrial procedures protocols. This was a major initiative involving every agency, all attorney groups, the courts, mental health professionals and other service providers. Everyone worked together to standardize and formalize the earlier work that began in 1999. The goal was to make case conferencing the rule rather than the exception. A Child Protective Plan set expectations for each conference.  It also included forms to prepare cases for trial. In 2010, pretrial conferences went citywide.

Describe pretrial procedures and their purpose in child protection cases in New York City Family Courts.

Structured pretrial procedures apply only in abuse and neglect proceedings. They involve three conferences aimed at expediting cases by reducing the number of court appearances, addressing families’ service needs sooner, and promoting settlement of case issues. The three conferences are facilitated by a court attorney and include:

1. Preliminary conference – delineates case issues, services, and timeframes.

2. Compliance conference – addresses provision of services, reports to be submitted, discovery issues, and any new issues.  They are not used in every case, only as needed.

3. Settlement conference– resolves all or some issues in the case. If all issues can’t be settled, the case is set for trial.

Discuss the importance of the preliminary conference.

The preliminary conference sets the tone for the case and gets the case on track early. The emphasis is on setting up “resource lists” of potential caregivers for children who enter care; identifying fathers upfront; and putting some services in place with the understanding that participating is not an admission of guilt in any way. We found that parents were more likely to participate in services with this approach.

Are pretrial conferences scheduled before contested TPR trials?

If the case goes to termination of parental rights, a new petition must be filed and all parties must be notified.  It may go before a referee (not a court attorney), who would get the case trial ready to the point that all parties are there and can appear before the judge. This happens during status  hearings scheduled after the abuse and neglect disposition.

What was the motivation for using pretrial conferences?

New York has an intake court appearance where the petition is presented and the judge makes a decision about the child’s safety. Some initial actions in the case also take place at intake. There’s not much time at intake to delve into the case, so the idea was that there should be a preliminary conference that would take a little longer and would be less formal than a court hearing.  It would be timed so the child welfare agency would have time to investigate some issues further so it could report in an informative way. Conferences would take place anywhere from 10-30 days after intake and after agency workers had time to do their own conferencing/investigation.

What is the role of the parties’ attorneys at pretrial conferences?

All attorneys must be present at conferences unless excused. The social worker is also usually present. Attorneys must confer in advance with their clients and discuss issues with opposing counsel before the conference. Reports must be submitted in advance of the conference  so everyone can read them and be familiar with what has transpired and outstanding issues.

Do children participate in the court hearings?

We are working on that. More children participate today than in 1999, but they are not the majority by any means. We tend to have more older youth coming into court but we’re not where we would like to be yet.

Explain the role of the court attorneys who facilitate pretrial conferences.

In New York City, court attorneys are the right arm of the judge. They conduct about 90% of pretrial conferences. They know how to conduct conferences in line with how the judges think and in ways that judges would accept.  While their approaches to conferencing may differ, their general roles are to:

  • facilitate the conferences;
  • explain the purpose of each conference;
  • determine and address any outstanding case issues;
  • schedule timeframes for specific tasks (discovery, when services have to be provided, exploring resources, exploring motions that counsel may wish to submit, scheduling trial dates if there is no settlement); and
  • communicate with the judge about each conference.

If a case is not resolved at the settlement conference, the focus for the court attorney is to make the case trial-ready for the judge. To do this, the court attorney:

  • determines if the petition or any causes of action are going to be amended or changed;
  • determines if the attorneys will stipulate to the admission of evidence, material facts,  etc.;
  • asks attorneys to submit witness lists, exhibit lists, etc.; and
  • schedules trial dates.

What benefits have you seen after regularly using pretrial conferences?

Improved case scheduling. There was an emphasis on setting dates ahead of time and a case schedule based on a 90-day timeframe from filing to case disposition, as follows:

  • Intake
  • Preliminary conference at 10-30 days
  • Settlement conference within another 30 days
  • Scheduled hearing date 15 days later, if case not settled

Shortened case timeframes. From 2009-2012, we significantly reduced the time to reach disposition in our cases. Time to disposition citywide in 2008 was about 11.4 months and is now about 7.4 months. Conferencing has been a big part of this success and what is going right.

Attorney satisfaction. In 2011, after the roll-out of pretrial conferencing, we followed up to see if conferencing met attorneys’ expectations. We surveyed all child protection attorneys. The findings revealed general agreement that conferencing is of value.  Attorneys cited the following benefits:

  • felt able to monitor discovery, provision of services, visitation, and the possibility that the child might return home if placed in foster care before the fact-finding hearing or earlier;
  • facilitated conversations about trial status;
  • promoted settlement by delineating issues and areas of agreement;
  • helped find kinship resources;
  • improved service referrals;
  • improved engagement of fathers;
  • improved exchange of discovery.

Increased ability to address issues requiring  prompt judicial resolution. If judicial involvement was not necessary, the judge could give a shorter adjourn date on the case to keep things moving.

What challenges did you overcome before this practice was successful?

The main challenges were:

Workloads. Conferencing placed a lot of new work on the court attorneys that they didn’t have before. Conferencing became at least 50% of their jobs. Depending on case volume, they had to facilitate one-to-eight conferences per day. Addressing this involved role redesign and adjusting the workloads of the court attorneys.  Some work was taken from court attorneys and put elsewhere, either with clerical staff or with court attorneys who do not work on child protection cases (e.g., delinquency).

Space and facilities. We had to find conference rooms that would accommodate at least eight people.  We received support from the Office of Court Administration in trying to find space, and were resourceful at reusing and repurposing some space we had. Between 1999 and now, we have gotten two new courts, redesigned a court, and obtained added space in another court.  One court is using a module because there’s no way to expand.

We’ve also addressed the issue through flexible schedules.  In one county, there was an agreement that half the attorneys would use the space in the morning and the other half in the afternoon. There is not a separate conferencing room for every court attorney; it’s just not possible.

Equipment. We needed computers and access to case management programs for scheduling.

The implementation committee addressed each need and obtained additional equipment and technology. Forms were created to summarize the conference, and a  system was developed for recording this information in the case management system.

What suggestions can you give judges or practitioners on starting a similar practice in their jurisdictions?

Unless you have an implementation team, a new program will flop. There are several issues the team must address for a successful program:

  • Understand the need for pretrial conferencing (assess).
  • Design it to work in your jurisdiction.
  • Develop the know-how to implement it (must know the details).
  • Get all players on board at the ground level.
  • Be able to study and refine it (evaluate).

What is the role of training?

Training is essential for court and agency staff.  In New York City, formal training rolled out in July 2009 and 2010. We started to track it and saw a more robust use of conferencing than before. Training formalized and standardized conferencing across the city.

Skill building must be continuous. We recently had an all-day seminar for the court on conferencing skills. This is important because staff change and new court attorneys come in. Even though new court attorneys follow other court attorneys as part of their training when they come on board, it is always good to have refresher courses and to learn new ways to approach conferencing, regardless of skill level. Judges also need training.

Was there reluctance to pretrial conferencing from attorneys?

At first there was some pushback. This is why it’s important to get everyone on board early. The concern was that this is yet another court appearance. Attorneys were swamped already and wondered how they could afford to do this. Within family court, there was reluctance about giving court attorneys added responsibilities. There were also questions about how much authority the court attorney would have and whether the judge would still retain decision-making control. Parent attorneys see pretrial conferences as a major plus because their clients get services sooner.

Did conferencing affect continuances?

We didn’t anticipate that we would have a higher settlement rate.  Not many cases go to trial, so the fact-finding hearing time slot would go empty. Sometimes you can recycle that time and sometimes you can’t.  So, while there has been an overall reduction in the number of appearances, we think we can still do better.

How were pretrial conferences funded?

We did more with less. We redistributed workloads and received support from the Office of Court Administration. Through the Office of Child Welfare Court Improvement, court improvement liaisons are sited in each jurisdiction (four in New York City’s five boroughs) to help roll out projects and handle trainings. The Family Court also funded new equipment.

Most expenses were not material. We already had the court attorneys; we just had to rethink their workloads.  We had the space; we just had to redeploy it. Judicial leadership was an important part of securing the support we needed. In New York City, Judge Richardson-Mendelson, Administrative Judge for the Family Court of New York City, owned the issue, talked about it, and pushed it.

Interview prepared by Claire Chiamulera, Anne Marie Lancour, and Cristina Ritchie Cooper of the ABA Center on Children and the Law.