1. April 1, 2015 Presented by F. Scott McCown Clinical Professor and Director of the Children’s Rights Clinic The University of Texas School of Law Moving from Ordinary to Extraordinary Representation of Children in CPS Cases

2. A Lawyer’s Responsibilities

3. ABA Practice Standards ABA Standards of Practice for Lawyers Representing Child Welfare Agencies (2004). ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases (2006). ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996).

4. Resources-National American Bar Association –Center on Children and the Law –Section of Litigation, Children’s Rights Litigation Child Welfare Information Gateway— Website (US DHHS & ACF)

5. Resources-State Texas Child Protection Law Bench Book (Children’s Commission) Children’s Commission--Website The Texas Practice Guide for Child Protection Attorneys (DFPS) The Abuse and Neglect Case: A Practitioner’s Guide (NACC 2009) Child Protective Services Handbook (DFPS July 1, 2015) Texas Lawyers for Children—Website

6. Lawyers for Children

7. Appointment of GAL and AAL Under Texas Family Code §107.011, the court must appoint a guardian ad litem for the child. Under Texas Family Code §107.012, the court must appoint an attorney ad litem for the child. Under Texas Family Code §107.0125, all attorneys appointed to represent children are automatically appointed to serve in the dual role unless and until the court appoints a separate guardian ad litem.

8. Differences Between GAL and AAL GAL is self directed and represents the best interest of the child. –GAL must elicit child’s expressed objectives, but is not bound by those objectives. Texas Family Code §107.002(b)(2). AAL is client directed and represents the child’s objectives. –AAL must represent the child’s expressed objectives of representation and follow the child’s expressed objectives during the course of litigation, if the AAL determines that the child is competent to understand the nature of an A/C relationship and has formed that relationship with the AAL. Texas Family Code §107.004(a)(2). Key Differences: –GAL is self directed and AAL is client directed. –GAL may testify and AAL may not. –No testimonial privilege between GAL and child. –GAL is not a party and GAL’s consent is not needed for an agreed order.

9. Duties as Attorney ad Litem Be a Lawyer Interview the Child (or caretaker if child less than 4 years) Investigate Obtain and Read the Records Interview Relevant People File Pleadings and Go to Court Be Trained in Child Advocacy

10. Representing Children’s Expressed Objectives Texas Family Code § 107.004: The attorney ad litem appointed for a child shall: (1)Advise the child; (2)Represent the child’s expressed objectives: (1)If, the child is competent to understand the nature of an attorney-client relationship, (2)And, has formed that relationship with the attorney ad litem. What about bad choices? –Children are just like other clients –Attorney and Counselor at Law

11. Substituted Judgment Texas Family Code §107.008: (a) An AAL appointed to represent a child may determine that the child cannot meaningfully formulate the child's objectives of representation in a case because the child: (1) lacks sufficient maturity to understand and form an attorney-client relationship with the attorney; (2) despite appropriate legal counseling, continues to express objectives of representation that would be seriously injurious to the child; or (3) for any other reason is incapable of making reasonable judgments and engaging in meaningful communication. (b) If AAL is in the dual role as A/GAL, the attorney may present to the court a position that the attorney determines is in the best interests of the child. (c) If a GAL has been appointed, an AAL who determines that the child cannot meaningfully formulate the child's expressed objectives of representation: (1) shall consult with the GAL, but is not bound by the GAL’s opinion or recommendation, but must ensure that the GAL’s opinion is presented to the court; and (2) may present to the court a different position that the attorney determines will serve the best interests of the child.

12. ABA Standards ABA B-2. Conflict Situations. (1) If a lawyer appointed as guardian ad litem determines that there is a conflict caused by performing both roles of guardian ad litem and child's attorney, the lawyer should continue to perform as the child's attorney and withdraw as guardian ad litem. The lawyer should request appointment of a guardian ad litem without revealing the basis for the request. Under ABA Standards: –If AAL is not in the dual role, the AAL always argues for expressed objectives, relying upon the GAL to argue for best interest. –If AAL is not in the dual role, and child cannot or does not have expressed objectives, AAL argues for best interest as determined by 1) the GAL or 2) the AAL. –If AAL is in the dual role as an A/GAL, continuing in the dual role is inappropriate whenever client’s expressed objectives conflict with the client’s best interest. In such a situation, the A/GAL must request that the court appoint another person as GAL so that the attorney can function as an attorney, maintaining confidentiality and arguing for the client’s expressed objectives. –If AAL is in the dual role as an A/GAL, and there is no conflict between a child’s expressed objectives and best interest, the A/GAL can argue for both.

13. Reconciling Code and ABA The Texas Family Code and the ABA Standards do NOT align. A lawyer can follow the ABA Standards and comply with Texas Family Code. A lawyer should follow the ABA Standards.

14. Go with the ABA! ABA approach is permissible under the Texas Family Code. –Under Texas Family Code §107.008, substituting judgment is discretionary, not mandatory –Under Texas Family Code §107.0125(c), an AAL may always request appointment of a separate GAL. ABA approach is preferable: –Best implements adversarial model. To be true to adversarial model, the child’s voice must be heard. “Best interest” is best determined by the clash of positions. –No need to lose sleep worrying that court won’t figure out the best interest unless you personally point it out. Opinions about best interest are job of GAL. Your job is to give a voice to the child’s wishes. Preamble, ABA Model Rules: “... when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.”

15. Conflict between Duty to Report and Duty of Confidentiality Under Texas Family Code § 261.101(a): “A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report....” And, effective 9/1/2013, under Texas Family Code § 261.101(b-1): a person has a duty to report if the person has cause to believe that an adult was a victim of abuse or neglect as a child AND the person determines in good faith that disclosure of the information is necessary to protect another child or an elderly or person with a disability. Under Texas Family Code § 261.101(c), this duty is mandatory, even when the information would otherwise be privileged. But, under Texas Family Code § 261.202, the testimonial privilege for attorney-client communications is preserved. A report is presumptively confidential and can be made anonymously. You probably have no duty to report what is already reported. Dubose and Morris, The Attorney as Mandatory Reporter, Texas Bar Journal 208, 213 (March 2005). So, what do you tell your client about confidentiality?

16. Sibling Conflicts ABA B-2. Conflict Situations. (2) If a lawyer is appointed as a "child's attorney" for siblings, there may also be a conflict which could require that the lawyer decline representation or withdraw from representing all of the children. Texas Disciplinary Rules of Professional Conduct –Rule 1.06(b): “... except to the extent permitted by paragraph (c), a lawyer shall not represent a person if representation of that person... (2) reasonably appears to be or become adversely limited by the lawyer’s... responsibilities to another client.... “ –Rule 1.06(c): “A lawyer may represent a client in the circumstances described in (b) if:(1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.” Test: If you can’t effectively advocate the expressed objectives/best interests of both, you have a conflict. Can you get informed consent from a child in this circumstance? Assuming two opposing siblings, you may continue to represent one if you do not have any confidential information that would be materially adverse to the other; otherwise, you must withdraw from representing both sides.

17. “Reasonable Efforts” Federal law requires: –A judicial determination: That continuation in the child’s home would be contrary to the child’s welfare, and That the state has made “reasonable efforts” to –Prevent or eliminate the need for removal –Safely return the child home –Finalize and execute a permanency plan –If a court finds that continuation in the child’s home is not contrary to the child’s welfare, then the federal government may deny reimbursement for the entire case. –If a court finds the state has not made reasonable efforts, the federal government may deny federal foster care reimbursement for part of a case or the entire case. –A court may also determine that reasonable efforts to preserve and reunify families are not required in certain cases. State law incorporates federal requirements: –Reasonable Efforts –Aggravated Circumstances, Texas Family Code § 262.2015—amended to read “subjected the child or another child of the parent”

18. How Do You Use “Reasonable Efforts”? You won’t win outright with reasonable efforts: –Safety concerns about child Texas Family Code § 262.001 –Ramifications of the loss of federal funding But you can use reasonable efforts as leverage “Reasonable efforts” = Your Alternative Plan or Needed Service –Leave child at home with protective order –Leave child at home with removal of alleged perpetrator –Leave child at home with day care –Leave child at home with kinship monitoring Recess hearing, hold the record open, set a short date for review

19. Pay Attention to Conservatorship! Placement w/o Conservatorship Orders –Uncertain authority—immunizations and school –No clock running Placement with relative with TMC to Relative –Relative becomes a party –No clock running Placement with relative with TMC to DFPS –Clear authority –More help for relatives, e.g, Star Health HMO –Clock running Joint TMC between parent and relative or various relatives

20. Do a Final Order! Must locate any Court of Continuing Jurisdiction under Texas Family Code § 155.001-.301. If there are final orders, and they are appropriate, you can merely dismiss. If there are final orders, and they are inappropriate, you should modify with new final orders. If there are no final orders, you need final orders—each lawyer should take responsibility for final orders! Your responsibility goes beyond immediate safety to long-term permanency.

21. Think about PMC and TPR According to DFPS, for the 12,000 or so children for whom DFPS becomes PMC annually, courts terminate parental rights for all parents about 73% of the time, for none about 24%, and for one only about 3% of the time. DFPS currently has PMC w/o TPR of nearly 1,000 children under 10 and about 175 under 3. PMC w/o TPR can be appropriate. –Don’t need TPR—relative placement identified. –Don’t want TPR—older child wants to maintain relationship with parent. PMC w/ TPR of only one parent can also be appropriate. –Violent parent terminated but parent with an ongoing relationship with an older child is not. PMC w/o TPR may be all the evidence supports.

22. But! PMC w/o TPR can create problems: –Faux PMC—designed to evade deadlines Delays resolution of the case PMC becomes the status quo –Lazy PMC—designed to avoid hard work Jury trial on termination –Wishy-Washy PMC—designed to avoid hard decisions Separating Siblings You need to be careful: Don’t leave an unnecessary barrier to adoption Don’t leave a caregiver exposed to further litigation and children to further turmoil

23. Don’t Make Bad Deals! Under Texas Family Code § 153.0071, a mediated settlement agreement is binding if: –IT PROVIDES IT IS NOT SUBJECT TO REVOCATION; and –Is signed by parties and attorneys (if present). If binding, a party is entitled to a judgment on the agreement regardless of anything, including the court’s views about best interest. See In re Stephanie Lee, 411 SW3d 445 (Tex. 2013). The only statutory exception: –A party is a victim of family violence; –AND that impaired the party’s ability to make decisions; –AND the agreement is not in the child’s best interest. 23

24. Take a Fresh Look at TPR PMC w/o TPR Texas Family Code § 161.004—a path to termination –New Petition –Changed circumstances –Ground for termination Even if before the original denial Can consider evidence presented at original hearing –Termination in child’s best interest

25. Take a Fresh Look at Reunification At review, take a fresh look at mom, dad, or relatives. Things change—both for children and adults. You may be able to get new services for a parent under Texas Family Code § 263.5031(3)(J): –DFPS is PMC w/o TPR –Six months of services to mom or dad If child is not in a home that is seeking PMC And, reunification with the parent is: –In best interest of the child –Likely to result in safe return In rare cases, you may even find it in a child’s best interest to return child to a terminated parent.

26. Well-Being

27. Parental Visitation Texas Family Code: Many requirements for visitation, but the key is resources. If possible, you should offer realistic alternative supervisors and transporters. You should resist use of visitation as motivator or denial of visitation as punishment. Resource: DFPS Child and Family Visitation Best Practice Guide (2014).

28. Sibling Contact Under DFPS Rules and Policy (40 T.A.C. §700.1327; DFPS Policy 6315.2): –Siblings should be placed together, unless identified reasons not to do so. –If not, visits must be frequent unless identified reasons not to do so. –Visits must be at least monthly and in person unless identified reasons not to do so. –If not, contact should be maintained through calls and letters. Under Texas Family Code § 153.551, a person (whether a child or an adult thanks to HB 1781) can file suit requesting access to a child sibling. A court must order reasonable access as determined by the best interest of the child sibling, and the court must expedite the suit (again thanks to HB 1781). Can an attorney ad litem file a claim for sibling contact? Under Texas Family Code § 107.003(G), an attorney ad litem for a child must “take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings.” Resource: DFPS Memo to Residential Contractors, Preserving Connections for Children and Youth in Substitute Care (April 16, 2013).

29. Education At each permanency hearing, the court must: –Identify the child’s education decisionmaker if not previously identified. –Determine whether the child’s education needs and goals have been identified and addressed. Before each permanency hearing, the A/GAL must: –Know about the child’s educational needs and goals. Resource: Foster Care and Student Resource Guide (TEA, DFPS, and Children’s Commission 2013).

30. Physical/Mental Health At each permanency hearing, the court must review a child’s health care. Special Focus on Psychotropic Medication –Enhanced process and training for consenters –Enhanced youth voice –Greater voice for parents –Enhanced responsibilities for A/GAL –Enhanced judicial review –Retrospective Medication Review Resource: Psychotropic Medication Utilization Parameters for Children and Youth in Foster Care (September 2013).

31. Normalcy New SB 1407 on normalcy. Children and youth in foster care are allowed to do what children and youth who are not in foster care are generally allowed to do. Reasonably prudent parent standard. –But Mom, all the kids are going! Caregiver protected from liability and licensing. DFPS to encourage normalcy. Courts to review to ensure normalcy. Resource: DFPS Memo to Residential Contractors, Normalcy Activities for Children (Aug. 8, 2013).

32. Immigration Status You must ensure that all children in care have a U.S. birth certificate or documentation of their immigration status. Most foster children qualify for Special Immigration Juvenile Status (SIJS), which paves the way to becoming a lawful permanent resident (LPR). If a youth does not have legal status, the youth cannot work, access transitional Medicaid, obtain SSI or other public benefits, and could even be deported. You must start the process to obtain SIJS while the youth is in care and under 18. Resource: U.S. Citizenship and Immigration Services, Special Immigrant Juveniles (SIJ) Status (Web).

33. Transitioning to Adulthood Transition Planning –Each youth 16 and older must have a written transition plan Created in a “circle of support” or a transition planning meeting –Advocate for circle of support More youth driven, and youth invites participants, larger group, more effort –CPS is required to review transition plan every six months within 90 days of youth exiting care within 90 days of the youth leaving extended foster care Preparation for Adult Living (PAL) Resource: A Guide for Those “Aging Out” of Foster Care in Texas (Texas Foster Youth Justice Project 4th ed. 2014).

34. Extended Jurisdiction Extended Jurisdiction, Texas Family Code, Chapter 263, Subchapter G A youth’s choice at 18: –Remain in foster care--a foster home, RTC, “Supervised Independent Living,” but not with relatives or in a juvenile justice placement. –Trial Independence on your own. –Trial Independence with Transitional Living Services, which can include Preparation for Adult Living and Educational and Training Voucher. Trial independence status is mandatory and lasts at least 6 months. A court can extend it up to 12 months. A young adult can exit and enter more than once. Each time the mandatory 6 month trial independence period begins again. Mandatory review hearings every six months unless youth is in trial independence, but even then the youth can ask for a hearing. A/GAL can stay on case as advocate. The CVS worker who was assigned before the youth turned 18 is responsible for the case. The CVS worker coordinates with the PAL worker and reports information to the Court. Foster care and court jurisdiction ends at 21. Resource: Extended Foster Care Page, DFPS Website.

35. “Children do not fall through cracks in the system; children slip through the fingers of our hands.” NYC CPS Caseworker