This article highlights the innovative work of one of the National Council of Juvenile and Family Court Judges’ Implementation Courts. It is reprinted from the recent publication, Redefining Judicial Leadership: Stories of Transformative Practice, a collection of articles showcasing several Implementation Courts and their work to improve court practice for children and families. Note that some time passed between when the articles were originally written and publication of the book so new developments at the court are not reflected.
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 the southwest corner of Michigan, in the city of St. Joseph in Berrien County, something is missing in the court that hears child welfare matters -- the child. Yes, the guardian ad litem (GAL) is there on behalf of the child. Yes, the attorneys for the parents and child welfare agency, the social worker, the judge and other parties all want what’s best for the child. But the person whose life is the focus of the proceeding, who everyone is talking about, is not there.
“Pretty much all the science supports kids, from a young age to teenagers, wanting to have their voice heard in court,” said Judge Brian Berger. “We’re making decisions that directly impact their lives. Even though every child in Berrien County is appointed a GAL, sometimes that’s not enough.” That recognition prompted leadership at the Berrien County Trial Court, Family Division to rethink the court’s practice of keeping children out of court except in isolated cases.
Through a collaboration with the National Council of Juvenile and Family Court Judges (NCJFCJ), the court is developing a child-in-court protocol to guide a shift towards including children in court. As an NCJFCJ Implementation Court since fall 2016, the court is working to improve in several areas, including children’s involvement in court proceedings that affect them. Judge Berger, one of three judges assigned to the family division, serves as the lead judge for the Implementation Court work. He shared how the court is developing a child-in-court protocol, highlights of the protocol, and anticipated benefits.
Nose to the Grindstone
When the court’s presiding judge asked Judge Berger to lead the Implementation Court work, he said sure but questioned if he was the best authority on abuse and neglect cases and the right way to do things. He’d been on the bench for 10 months, coming from a long career in private practice as a divorce and criminal defense lawyer. He put his head down, did his homework, and learned as much as he could. NCJFCJ staff also visited with him and other court staff to discuss best practices in child welfare cases, the latest research, and other courts’ experiences around children coming to court.
Judge Berger then convened a stakeholder group with wide representation – court staff, prosecutors, attorneys for parents and children, department of health and human services staff, social workers, mental health workers, and other system partners. The group of about 25 was tasked with developing goals for Berrien County following NCJFCJ’s lead and guidance in the NCJFCJ Enhanced Resource Guidelines. Developing a child-in-court protocol fit within a larger Implementation Court goal to ensure the voices of the people the court serves are heard in the court process. “We decided going forward it’s important to give the young people who want to come to court the opportunity to be heard,” said Judge Berger.
Not everyone embraced the decision to bring children to court. “There was major pushback from all sides when the stakeholders first came up with this as a goal,” said Judge Berger. Guardians ad litem were especially vocal, arguing that making children come to court would retraumatize them. Judge Berger recalls the looks on the faces of the GALs when the idea was shared. “I remember people looking at me and saying, ‘Well, my kids aren’t coming to court!’” he said. Shifting this mindset took looking at the evidence, hearing from other states, and talking with other courts that already had a policy in place. Judge Berger also invited GALs to serve on the workgroup that developed the protocol so they would have input and feel a part of the process.
While the court wanted to make the protocol its own and deliberately avoided modeling it on other states’ protocols, it did seek mentoring and advice from other courts and experts. Judge Darlene Byrne, presiding judge of the 26th District Court, in Austin, TX and her staff were especially helpful in this role, making themselves available by Skype to answer questions and explain practical aspects of including and engaging children in court. Judge Berger said they also turned to New Jersey and the substantial work done there to include children in court proceedings for grounding in the issues. And NCJFCJ staff – site manager Zadora Bolin and consultant Hon. Stephen Rubin –
served as valuable partners, sharing the latest science and best practices, and making connections with other courts for guidance.
Stepping Away, Empowering Others
A workgroup drawn from the larger stakeholder group formed to focus on the child-in-court protocol. Judge Berger stepped back at this point to let the group develop the policy and make it Berrien County’s own. “That’s the most important thing I did here,” he said. “I was involved and would take reports and discuss progress at monthly stakeholder meetings but stepping back and listening and trusting other people to do the work properly is the best advice I could offer.”
That freedom gave the workgroup a sense of ownership and a level of trust to craft a protocol from the ground up. The collaborative approach was also essential to establish buy-in from all group members. The group worked for a year to develop the Berrien County Trial Court Children/Youth in Court Protocol. Regular meetings during that period fleshed out the protocol and addressed many practical concerns – How will children be notified? How will they get to court? Where will they wait once they get to court? When should the judge engage them during hearings? “A lot of practical concerns had to be ironed out,” said Judge Berger. “It wasn’t just a matter of saying, ‘Ok, on March 1, we’re going to do this.’ It’s been a process.”
Shaping the Protocol
The protocol developed by the workgroup is not mandatory and is designed to give judges discretion. “Our policy is fairly loosely written and gives judges some flexibility,” said Judge Berger. It applies to children of all ages and emphasizes safeguarding children from trauma. “The last thing we want to do is put children in harm’s way or in situations that cause trauma,” he said. Bifurcating hearings, allowing phone/video testimony, and permitting a written statement from the child are examples of accommodations the protocol makes available to protect the child if trauma is a concern.
Key elements of the protocol include:
Mission: “To engage children/youth in the court process for the purpose of, and in a manner consistent with, reducing trauma for children/youth.”
Goals: Three goals focus on (1) making the court process more engaging and collaborative with the objectives of familiarizing the child and judge with one another and making the court process more transparent and understandable to children; (2) giving children a voice in the process; and (3) ensuring the court hearing focuses on the child.
Including children in court: General guidelines cover common reasons children should come to court. Examples include: upon a therapist’s recommendation, at 6-month review hearings, at hearings to return a child home, at case closure hearings, when the youth is age 14 or over and wants to be present, at juvenile guardianship hearings, when the judge wants to see or has questions for the child.
Excusing children from court: Guidance for excusing children from court centers on protecting the child from serious trauma as determined by a judge, therapist, or the case circumstances. School conflicts and the child’s wishes regarding court attendance are also relevant factors.
Implementation procedures: Practical aspects of implementing the policy are outlined, including training staff on the protocol; preparing children for court; transporting children to court; providing courtroom accommodations and alternatives to in-court participation; child-sensitive scheduling of hearings; sending child-friendly invitations to come to court; and protocols for engaging children at hearings.
Recommended changes: The protocol recommends changes and procedures needed to accommodate bringing children to court. These include physical and logistical changes, such as establishing a child-friendly waiting area with supervision; training foster parents on the protocol; developing a template for a child to provide a written statement in lieu of coming to court; developing surveys to measure performance and impact of the protocol; and finetuning the protocol based on surveys and feedback.
Training for judges and referees focuses on how to engage children in an age-appropriate manner. “Many of us are parents and grandparents and think we know how to talk with kids, but we want to be sure we do it the right way and don’t cause further trauma,” said Judge Berger. The protocol specifies mandatory trainings for all court staff on age-appropriate and trauma-sensitive child engagement, as well as implementing NCJFCJ best practices.
Rolling out the Protocol
The court has adopted the protocol and is slowly having kids come to court in limited cases as a test run. “Our hope is that in 60-90 days it will become much more consistent,” said Judge Berger. A waiting room for children is still under construction and some other practical considerations are being worked out to ensure the protocol can be implemented in a safe and nontraumatic manner for children.
At an initial rollout event in February 2019, Judge Byrne from Austin, TX, opened with an overview of the benefits of having children come to court. The audience of 60-70 people included lawyers, prosecutors, social workers, staff from the department of health and the department of health and human services, and foster parents. The protocol has also been presented to court staff at lunch-and-learn events, so they know what to expect.
Evaluating and Refining
Once the protocol is fully operational, the kids-in-court workgroup will continue to meet quarterly to ensure it is implemented well and make refinements. They will use data to track cases when children come to court to evaluate outcomes and see if it makes a difference. The court is also planning some age-appropriate follow-up with children to learn about their court experience, what they thought, what went well, and how the court can improve.
Hearing Children Firsthand
While the impact of having children come to court remains to be seen, Judge Berger believes one benefit will be knowing the voices of young people will be heard. “It will have a positive impact on the lives of the children we serve, knowing that we’ve taken what they want into consideration in the decisions we make,” he said. Although a GAL is charged with looking out for the child, that doesn’t always mean the GAL and the child agree on what should happen. He gave the example of a child who wants to return home even though his parents are using drugs. Giving the child the chance to share that desire and discussing what needs to happen before he can safely return to his parents (e.g., substance abuse program, period of sobriety) helps the child participate in the decision making. “I’m confident that children will feel the court handled their cases more appropriately because their position and point of view was considered by the court,” he said. The benefits extend to very young children who, while unable to express their wishes, can provide valuable nonverbal communication such as running towards a parent.
Soon, thanks to the new protocol, children in Berrien County will have an open invitation to attend child welfare legal proceedings that affect them. Judge Berger hopes that by extending that invitation early in the court process, many children will have a better sense of what is happening in their cases, will have met the person who is making decisions (the judge), and will feel welcome to come talk to the judge and participate in the court process.
Claire Chiamulera is the Center's legal editor and editor of CLP Today.