DEFENDING PARENTS Building a Healthy Child Welfare System

Starting from the Beginning Colorado Children’s Code C.R.S. § Legislative Declaration: 1.The general assembly declares that the purposes of this title are: a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society; b) To preserve and strengthen family ties whenever possible, including improvement of home environment… 2.To carry out these purposes, the provisions of this title shall be liberally construed to serve the welfare of the children and the best interests of society.

Department Investigation  Mandated Reporters  By law, certain professionals are required to call the hotline for any suspected cases of child abuse or neglect, such as medical personnel, school and daycare employees, social workers, etc.  Child Abuse Hotline  Many investigations of child abuse or neglect begin with a call to the child abuse hotline by someone concerned about a child or children’s wellbeing.  Founded/Unfounded/Inconclusive  Based on their investigation, the department makes a determination as to whether to mark the report as founded (substantiated), unfounded (unsubstantiated), or inconclusive.  Reports are confirmed if they are supported by preponderance of the evidence.

Defense Tip: Appeals of Department Findings  How it can help family once court involved:  Volume Notice to the Person Found to be Responsible for Child Abuse or Neglect  State-Level Appeal Process  tellite/DPA- OAC/OAC/

Founded Reports: Several Choices for the Department  Voluntary case  Involuntary case, or court action  Remove or not remove  Court action  See Volume Investigation Procedures  See Volume , Provision of Ongoing Child Protection Services

Defense Tip The Colorado Assessment Continuum  What is it? Three instruments used by Department workers according to Volume 7 policy: Safety Assessment Risk Assessment North Carolina Family Assessment Scale (NCFAS and NCFAS-R)  Who completes it? Safety Assessment: Typically, the intake worker Risk Assessment: Either the intake worker or the ongoing work NCFAS: Ongoing worker  When is it completed? Safety Assessment: Completed within 7 days of contact, documented in Trails within 30 days of referral. Required in all cases, except abandonment. Risk Assessment: Also in Trails within 30 days of referral. Used in cases with goals of remain home or return home. Must be completed prior to return home or when closing the case. NCFAS: Must be done within 30 days of assignment. Used with return home or remain home goals. The NCFAS-R (reunification), is completed prior to reunification  How can we use it?

Court Action  Governing Law: Colorado Children’s Code (C.R.S. Title 19).  First Hearing  Purpose This first hearing is to review the ex parte court hold, if the child was removed, or any ex parte temporary protective orders that the court issued.  Timing The hearing happens within 72 hours, excluding weekends and holidays.

Adjudication  Purpose  Court will determine whether to sustain or dismiss the petition.  If the petition is sustained, then the child is adjudicated dependant or neglected.  Timing  Adjudicatory hearings must be held as quickly as possible, and not later than 90 days after the petition has been served. If the child is younger than six, then the adjudicatory hearing must be held within 60 days unless the court finds that it is in the child’s best interest to grant a delay.  Evidence  At the Adjudicatory hearing, the Department must prove by a preponderance of the evidence the allegations in the petition. If it is an ICWA case, then the standard of proof is clear and convincing evidence, including expert testimony.

Treatment Plan/ Dispositional Hearing  Purpose  The purpose is to determine a treatment plan that is reasonable, intended to address the condition or conditions that led to the adjudication, and to address every party.  Timing  The dispositional hearing, also called the treatment plan hearing, can either follow immediately after the finding of adjudication or it can be continued for up to 30 days after adjudication in an expedited permanency planning (EPP) case (45 in a regular case).  Evidence  The evidence at the treatment plan hearing is the treatment plan written by the caseworker.

Expedited Permanency Planning  Children under the age of 6  Faster timelines  For example, the adjudicatory hearing has to happen within 60 days of service of the petition, unless the court believes a delay would be in the child’s best interests. The dispositional, or treatment plan hearing, has to happen within 30 days.

Permanency Planning Hearing  Purpose  At the permanency planning hearing, the court must choose one of 4 permanent options for the child: reunification with the parents, adoption, allocation of parental rights (APR)/guardianship, or other planned permanency living arrangement.  Timing  The permanency hearing typically happens about 90 days after the dispositional hearing in all cases, but is only required this quickly in EPP cases. In all other cases the court is required to have a permanency hearing within 12 months of when the child entered foster care. In cases where the disposition is that no treatment plan can be devised, then a permanency hearing must be held within 30 days.  Evidence

Termination of Parental Rights  Purpose  The Department or the GAL may also choose to file a motion to terminate the parent-child legal relationship and free the child for adoption.  Timing  This requires a separate motion and a separate hearing within 120 days, unless good cause is shown.  Evidence  The Department has the burden of proving, by clear and convincing evidence, the cause of action for termination.  In an ICWA case, the burden of proof is beyond a reasonable doubt, proven by expert testimony.

Child Welfare System Stakeholders  Department  Caseworkers, supervisors, managers Child welfare in Colorado is a state-supervised county-administered program. Each county will organize its workers in its own way, but most counties separate workers into areas of specialty, such as an adolescent unit, an investigation or intake unit, an ongoing unit, etc. Some counties, however, prefer to have all workers do all aspects of case management – so the workers are generalists.  General v. Specialized  Training Caseworkers complete 40 hours of training up front and then 40 hours per year. Counsel for the Department  Who They Are The larger Departments are represented by the County Attorney’s office. In smaller counties the legal work for the Department is often handled by a contracted prosecutor.  Role Agency Model: the attorney represents the Department Prosecutorial Model: the attorney represents the State or the People  Training

Children’s Advocates  GALS  Who They Are Guardians ad litem (GAL) are lawyers appointed to represent what is in the best interests of the child client who is the subject of a dependency and neglect (D&N).  Role  Training  CASA  Who They Are Court appointed special advocates, or CASAs, are lay volunteers generally appointed to work with the children.  Role  Training

Judicial Officers and Court Staff  Who They Are  District court judges, magistrates, law clerks and division clerks, family court facilitators Some districts have judicial officers dedicated to the juvenile law docket, while others, particularly in smaller jurisdictions, have judges with general civil dockets.  Role  Many of the larger courthouses use magistrates for most types of hearings, except for jury trials and termination hearings.  Family court facilitators play different roles. In some jurisdictions they are used administratively while in others they mediate dependency and neglect cases as well.  Training

Professional Culture  Collaboration: CIP, Best Practice Teams, Lead Judges  Institutional players  Informality  Low pay, high caseloads  Confidentiality – protecting privacy or creating lack of accountability?

Colorado Practice Standards Colorado Standards for RPC  Training  Competent Representation  Communication  Documentation

Colorado Practice Standards Colorado Practice Standards, continued  Investigation: facts and timing  Agency Advocacy: services and placements  Client Location: keeping track  Cultural Awareness: impact on case success  Appeals

Client Location Several sources:  Federal parent locator service: (accessible by DSS)  Colorado Corrections: Need DOB or DOC number.  Criminal background checks:  To find any person:  ICON access at: x.cfm x.cfm

General Principle: Understand and protect the parent’s rights to information and decision-making while the child is in foster care. ABA Standards of Practice for Attorneys Representing Parents

Relationship With The Client:  Advocate for the client’s goals and empower the client to direct the representation and make informed decisions based on thorough counsel.  Provide the client with contact information in writing and establish a message system that allows regular attorney-client contact.

Relationship With Client Relationship With Client, continued  Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client’s rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans.

Relationship With Client Relationship With Client, continued  Work with the client to develop a case timeline and tickler system.  Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation.  Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication.  Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client.  Be aware of the client’s mental health status and be prepared to assess whether the parent can assist with the case.

Investigation and Discovery  Conduct a thorough and independent investigation at every stage of the proceeding.  Review the child welfare agency case file.  Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

Court Advocacy  Develop a case theory and strategy to follow at hearings and negotiations.  Engage in case planning and advocate for appropriate social services using a multidisciplinary approach to representation when available.  Aggressively advocate for regular visitation in a family- friendly setting.  Identify, locate and prepare all witnesses.  Identify, secure, prepare and qualify expert witness when needed. When permissible, interview opposing counsel’s experts.

Court Advocacy Court Advocacy, continued  Actively participate in jury selection and drafting jury instructions.  Request closed proceedings in appropriate cases.  Request the opportunity to make opening and closing arguments.  Prepare proposed findings of fact, conclusions of law and orders when they will be used in the court’s decision or may otherwise benefit the client.

Post Hearings/Appeals:  Review  Make a record  What is an appealable order? Adjudication not appealable until disposition: C.R.S. Section (2)(c), People in the Interest of E.A., 638 P.2d 278 (Colo. 1981).  Discuss  File: C.A.R 3.4 requires Notice of Appeal and Designation of Record be prepared and signed by trial counsel.  Notice of Appeal must be signed by client or specifically authorized.  Appeal must be filed even without regard to the likelihood of success on appeal

National Support The National Project to Improve Representation for Parents Involved in the Child Welfare System  A collaboration between the American Bar Association Center on Children and the Law, Casey Family Programs, the Annie E. Casey Foundation, the Child Welfare Fund, and the Steering Committee for the National Parents’ Counsel Organization.  child/parentrepresentation  National Listserv:

Mission To strengthen representation of parents in the child welfare system through:  training and technical assistance for parents’ attorneys, courts and legislators;  networking opportunities --a listserv and national conference focused on parent representation;  providing resources to improve parent representation; and  supporting system reforms that ensure parents and their attorneys are given a voice in the child welfare system.

child/parent representation

Parent Support  Parent advocates and mentors: National Coalition for Parent Advocacy in Child Protective Services:  RISE magazine:  Others in the community

Colorado System Reform  Judicial Department Colorado Court Improvement Project Respondent Parent Task Force Statewide Needs Assessment, April 2007 (online at Probation/Supreme_Court/Committees/Court_ Improvement/CORPCFinalNeedAssesExeSum.pdf) Probation/Supreme_Court/Committees/Court_ Improvement/CORPCFinalNeedAssesExeSum.pdf Current efforts

Overview of the Child Welfare System Review Questions and Answers