|Aspirational Guidelines for Georgia's Parent Attorney in Child Deprivation Cases|
Guidelines for Georgia’s Parent Attorneys in Child Deprivation Cases
Letter from the Chief Justice
To all Parent Attorneys in Child Deprivation Cases:
Attorneys who represent parents of children in deprivation cases have a difficult charge: to defend the civil rights of a parent accused of child abuse or neglect. Yet their role is essential to our system. Parent attorneys have an opportunity to ensure that the integrity of a family is protected from unnecessary intervention as well as securing adequate services to parents working to reunite with their children.
We must work together as a profession to make sure that quality of counsel and resources match the need of appointment of counsel for parents in child deprivation cases. In working toward that effort and in consultation with attorneys from the American Bar Association, a select group of attorneys and the Georgia Indigent Defense Counsel have developed and published “Guidelines for Georgia's Parent Attorney in Child Deprivation Cases.”
The authors of this document are to be commended for their efforts to improve the process for child abuse and neglect cases. It is important that their efforts are honored by striving to meet these guidelines. I extend my appreciation to all of you for your dedication in making our system work, and I support your efforts to improve the work you do.
These aspirational guidelines were developed on March 30 and 31, 2001, by the following attorneys attending a workshop sponsored by the Supreme Court of Georgia Child Placement Project and the Georgia Indigent Defense Council (GIDC) Juvenile Advocacy Division.
Mr. B. Samuel Engram, Jr, Albany — Dougherty Judicial Circuit
This workshop was facilitated by Susan Teaster and Trish McCann of the GIDC Juvenile Advocacy Division and Mimi Laver and Eva Klain of the National Child Welfare Resource Center on Legal and Judicial Issues at the American Bar Association Center. Ms. Teaster, Ms. McCann and Michelle Barclay of the Child Placement Project compiled and edited this document.
Special thanks go to the staff of the National Council of Juvenile and Family Court Judges, and Mimi Laver and Eva Klain of the National Child Welfare Resource Center on Legal and Judicial Issues at the American Bar Association Center on Children and the Law who gave so generously of their time and knowledge to Georgia.
Ten attorneys who represent parents in juvenile court were brought together for a two day workshop to develop guidelines for child deprivation and termination of parental rights cases. This brief manual was developed from that workshop and was substantially guided by faculty from the American Bar Association Center on Children and the Law. The workshop and manual development were funded by the Supreme Court of Georgia Child Placement Project. These guidelines are non-mandatory and aspirational, yet much thought and debate went into their formation. Attorneys representing parents are urged to read and consider these guidelines for deprivation and termination cases. While every deprivation is important, these guidelines were primarily developed for the cases where the Division of Family and Children Services (DFCS) has taken the child into custody.
The Need for Guidelines
Practice in juvenile deprivation cases is unique and challenging, requiring continual training to assure the best legal representation of clients. At stake for children is their liberty, their right to membership in their family of origin, and their right to be safe, healthy and protected. At stake for parents is their right to raise their children as they think best without state interference, and, ultimately, the absolute and final termination of their parental rights. The participation of counsel on behalf of all parties subject to juvenile proceedings is essential to the administration of justice and to the fair and accurate resolution of issues at all stages of those proceedings. The parent’s attorney plays a crucial role in the processing of these cases which have a direct impact on the lives of families.
As a result of recent changes in federal and state law, child deprivation cases are more complex, requiring more hearings and more people. In 1995, the Supreme Court of Georgia began a study to get a statewide view of how child deprivation cases are processed. The study revealed that the process of deprivation cases differs dramatically across the state. Some of the interviews and survey results stated that the process is driven by the strongest personality in the court. Parents' attorneys expressed frustration about the lack of current information on practice to provide a context in which they can evaluate and improve their own practice. When information on diverse practices is shared, the best of each style can be incorporated into practice in all jurisdictions. Consistency in the process of deprivation cases is more likely to lead to consistent results, ensuring that all juvenile court participants across the state will be treated similarly and can hold the same expectations about juvenile court.
To recognize the importance of representation of parents and identify systemic problems within the juvenile court through the development of aspirational guidelines, and to assist attorneys representing parents throughout Georgia in improving the quality of their representation in juvenile court, which will ultimately lead to better outcomes for families in the child welfare system.
Specific guidelines were developed for each stage of a child deprivation hearing. Additionally, the participants identified two main areas in which Georgia should focus on supporting and improving the role of the attorneys representing parents.
The Two Main Areas of Focus for the Georgia Guidelines
• Ensuring that parents receive quality representation at each stage of the proceedings, recognizing the impact of inadequate resources and unmanageable caseloads.
• Ensuring the best outcomes for parents and children with the goal of keeping "families" together whenever possible and appropriate.
SPECIFIC GUIDELINES FOR EACH HEARING STAGE
Prerequisites for Representation
Before practicing in juvenile court, counsel should be proficient in applicable substantive and procedural Georgia juvenile law and should have appropriate experience, skill and training necessary to represent parents. It may be appropriate to work with a mentor before handling deprivation cases. At a minimum, counsel should observe at least one hearing before accepting an appointment or undertaking representation. Additionally, counsel should be knowledgeable of the following:
• Counsel should act in a professional manner in zealously advocating the client’s position;
Appointment of Counsel
Delays in the appointment of an attorney should be avoided, as they delay permanency for the child. Notice given to the parents should include the right to an attorney at all hearings and information on how an attorney can be appointed to represent them. Parents should be appointed an attorney prior to the 72 hour hearing, but not later than at the shelter care hearing. Court staff should notify attorneys of the appointment immediately and any barriers to representation should be eliminated. The length of the appointment should also be specified.
The complaint is the first document filed with the court to initiate a deprivation case. The complaint will allege abuse or neglect of a child or children. It is generally filed by a Division of Family and Children Services (DFCS) caseworker, although complaints may be filed by any person against a child’s primary caretaker. While attorneys for parents are not always appointed or retained at the complaint stage, courts are encouraged to appoint attorneys as early as possible to ensure adequate representation. At the complaint stage, counsel should:
This emergency hearing, also called a shelter care hearing, is held within 72 hours of a child’s removal from the home. It is critical that this hearing be timely and thorough. Time is of the essence in child abuse and neglect cases, and any opportunity to prevent a child’s case from continuing its path into the system should be seized. Once a child is removed from the home, it becomes more difficult to reunite the family. Therefore, all guidelines relating to this hearing seek to prevent the child from unnecessarily entering the system and to ensure faster permanency for the child who does enter the system.
In preparing for the 72-Hour hearing, counsel should immediately determine both the agency’s and your client’s version of the reasons for the child’s removal. In addition, counsel must determine what the client wishes regarding the child’s placement, frequency of visits, and communication with the child. Counsel must inform the client of the nature of the proceedings as well as their Fifth Amendment rights. At this time counsel should also be familiar with the types of placements available to children and placement issues including:
At the 72-hour hearing counsel should:
• Request scheduling and notice of caseplan meeting;
• Request the date and time for the adjudicatory hearing.
After the hearing counsel should:
The caseplan is a roadmap for how the case should proceed for the future. It is a document created by the caseworker and submitted to the court for approval. Once approved, the document resides in both the court and DFCS case file. Copies are also given to the parent(s). The caseplan lays out what has be done to resolve this case. It should be created in participation with the parents of the child. The caseplan will be reviewed every 3 to 6 months. Optimally, it should be distributed at the end of the dispositional hearing; however, DFCS has 30 days after that hearing to get a copy to the parents.
At this stage of the proceeding Counsel should:
The petition is a document outlining the facts and allegations of the deprivation case. The petition is filed by the DFCS representative in preparation for the adjudicatory hearing. If the child is removed from the parents, the petition must be filed within 5 days after the 72-hour hearing. When a petition is filed alleging deprivation, the parent’s attorney should:
The adjudicatory hearing is the trial concerning the facts alleging deprivation. The outcome of the adjudication controls whether the state may intervene over the objections of the family. The standard of proof is clear and convincing evidence.
In preparation for the adjudicatory hearing or for a pre-trial conference, the attorney should:
At the adjudicatory hearing, counsel should:
Disposition is the stage of the juvenile court process in which, after finding that the child is deprived and is within the jurisdiction of the court, the court determines who should have custody and control of the child. This hearing is usually held immediately following the adjudicatory hearing. All parties present at the adjudicatory hearing need to be present at the dispositional hearing.
Prior to the dispositional hearing, the attorney should:
During the dispositional hearing, the attorney should:
Review hearings are court proceedings that take place after disposition in which the court reviews the status of the case. In many counties, this hearing is delegated to citizen review panels who do a full review of the case and make recommendations to the judge. The judge will then review the same case on paper with the panel’s recommendations and will issue an order incorporating those recommendations, if appropriate. Reviews examine progress made by the parties since the conclusion of the dispositional hearing and provide an opportunity for correction and revision of the case plan. The purpose of review hearings is to make sure that the case progresses, that the child spends as short a time as possible in temporary placement, and that the entire process is monitored for accountability. Attorneys for parents should ask to receive notice of all reviews. The attorney should also monitor the frequency of the reviews to ensure they are adequate and when appropriate request a review if your client has made progress and the child could return home.
For citizen review panels, the attorney should:
For judicial reviews the attorney should:
Permanency Placement Hearing
Under Georgia law, the permanency plan can be addressed as part of the custody extension hearing. One code section indicates that a permanency hearing is separate from the custody extension hearing, and is to be held within twelve months after a child comes into care. However, such a separate hearing is not clearly required by Georgia law. The two purposes of the permanency hearing (which are required by federal law) are (1) to determine if a child will remain in care, and (2) to determine a child’s permanency plan. Both purposes should also be addressed at the custody extension hearing. “Permanency Hearings are required whenever reunification efforts or reasonable efforts for reunification are not made or cease.” At this time, permanency hearings are not triggered by a custody extension hearing. However, permanency issues are required to be heard and determined at the time of a custody extension hearing. Because of this lack of clarity, some Georgia juvenile courts are holding separate permanency hearings, others are blending custody extension hearings and permanency hearings, and others have not changed their procedures at all since the passage of the 1997 Adoption and Safe Families Act.
At the permanency hearing, the attorney for the parent should:
Termination of Parental Rights
Termination of parental rights (TPR) cases arising from child deprivation cases are among the most difficult a parent’s attorney can face. There is a strong possibility that a case will result in TPR when intensive, in-home services cannot safely be provided or are attempted but fail to result in reunification. An order terminating parental rights is without limit as to duration and terminates all the parent’s rights and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship. In addition, the parent is no longer entitled to notice of further legal proceedings and is effectively denied further opportunity to regain custody. With the passage of ASFA, termination of parental rights may be affected within a shorter period of time and more frequently than ever before. There are also risks to a child in terminating parental rights. If the decision is premature, a child may needlessly be deprived of a chance to return home, to keep contact with parents, and to have lifelong relationships with members of an extended family. In light of the severity of the threat facing the family, parent’s attorneys must engage in a vigorous and zealous defense after determining that the parent wishes to contest termination.
• Determine whether the parent wishes to contest termination;
Following a TPR
• Determine whether there are issues for appeal and file notice of appeal;
When appealing or considering an appeal attorneys should:
The Parent Attorney Wish List
• That the Governor and Legislature provide sufficient funding to adequately compensate attorneys who represent parents in deprivation and termination cases;
• That there be caseload limits for parents attorneys;
• That there be an organized parents attorney bar;
• That there be more relevant Continuing Legal Education for parents attorneys;
• That the attorneys be provided with funds for their own investigators upon request;
• That there be more cooperation between all parties involved in the formation and execution of the caseplan;
• That deprivation mediation be provided, and that it be led by high quality mediators using sound, established protocol;
• That citizen review panels be adequately trained and that their recommendations have meaningful judicial review;
• That if the putative father is readily available, he should be provided an appointed attorney upon request;
• That each parent be provided with his or her separate attorney;
• That there be a uniform statewide system of court procedure;
• That there be a statewide standardized computer system;
• That the attorney be allowed to stay with case until its end;
• That there be one caseworker per child;
• That if reunification is a viable solution, DFCS will actively work towards reunification;
• That if at all possible, siblings will be kept together in their placement;
• That meaningful and frequent visitation between parent and child be provided;
• That, if necessary, transportation and/or transportation costs be provided for the parents;
• That the independence of the parents attorney be ensured without the necessity of an employment contract with the juvenile court;
• That parents are assured of quality representation at all stages of the proceedings;
• That attorneys be provided sufficient time to prepare the case properly;
• That there be better training for CASA’s and that said training includes elements which focus on the parents;
• That there be full time juvenile court judges throughout the state;
• That all dates for future hearings are set while in court and that everyone have notice of future hearing dates;
• That deprivation and termination cases get automatic expedited appeals.