You are on page 1of 16

Child Law Practice

Vol. 30 No. 2 April 2011 Helping Lawyers Help Kids
IN PRACTICE
Representing Parents During Child Welfare Investigations:
Precourt Advocacy Strategies
by Elizabeth Fassler and Wanjiro Gethaiga
possible, and (2) if foster care is
unavoidable, to significantly
S eventeen-year-old Ana and her stepfather Roberto immigrated to the
United States in early 2008. Shortly after, Ana became pregnant. When
Ana was in labor, her stepfather dropped her off at a hospital and aban-
shorten the length of foster care
stays for children. CAT provides
doned her to return to Mexico. Ana, who speaks only Spanish, and whose parents an attorney, social work
only nearby family members lived in an overcrowded apartment, was staff member, and a parent advocate
placed in an English-speaking foster group home for young mothers where (a parent who has directly experi-
she now lives with her son. enced the child protective and foster
Several months after Ana arrived at the foster group home, the staff care systems and has successfully
called in a report against her. During the investigation, an attorney and so- reunited with his/her children).
cial worker met with Ana to explain the investigation process and the pos- Through this model, CFR has
sible legal consequences that could arise from the investigation. During the worked with families while they are
investigation, the social worker attended conferences with Ana to work with under investigation by child welfare
all parties to determine the appropriate plan for Ana. authorities before the court gets
At the end of the investigation, the attorney and social worker were able involved.
to stave off a court filing so Ana and her son could remain together in the
foster group home. The social worker is now working diligently with the
Why Precourt Advocacy
foster group home staff to locate a Spanish-speaking foster family for Ana is Important
and her son. In New York, when someone
(Continued on page 22)

This vignette is based on a case importance of pre-court advocacy; What’s Inside:
handled by the Center for Family the legal framework of an investiga- 18 CASE LAW UPDATE
Representation, Inc. (CFR), a tion; and what an attorney, social
27 POLICY UPDATE
nonprofit law and policy organiza- work staff member, and parent ad-
Support for Kin
tion based in New York City. It vocate can do during each investiga-
Caregivers of Children
shows how early intervention and tion stage.
Whose Parents Are
pre-court work can secure needed
supports and provide tools to CFR’s Community Incarcerated
families to help them stay together Advocacy Teams 29 JUVENILE JUSTICE UPDATE
and avoid going to court. The investigation phase of a child Tools for Preventing Youth
Using Ana’s case to illustrate, protective case can be stressful and Violence
this article describes CFR’s unique confusing for parents. To support 31 ETHICAL DILEMMAS
Community Advocacy Team ap- parents during a child protective Ethical Consideration: Model
proach and how the teams assist case, CFR created Community Rule 1.7 Conflict of Interest
parents navigate a child welfare in- Advocacy Teams (CAT). CAT aims
vestigation. It also discusses the to (1) prevent foster care whenever

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 17
◆ Internet: http://www.childlawpractice.org
ABA Child Law PRACTICE CASE LAW UPDATE
www.childlawpractice.org Foster Parents Lacked Right to Advocate a Position at
ABA Child Law Practice (CLP) pro- Termination Hearing
vides lawyers, judges and other profes-
sionals current information to enhance
People v. A.M., 2010 WL 5621076 (Colo. Ct. App.).
their knowledge and skills, and im- A trial court erred when it let foster of the child may intervene as a matter of
prove the decisions they make on be- parents participate as full intervenors in right following an adjudication with or
half of children and families. Topics termination of parental rights proceed- without counsel.”
include: abuse and neglect, adoption, ing. State statute permitting foster The mother objected, citing a conflict
foster care, termination of parental parents to fully intervene in dependency of interest because the foster parents
rights, juvenile justice, and tort ac- proceedings limits foster parents’ wanted to adopt the child. She asked the
tions involving children and families. participation to dispositional hearings, court to remove the child from the foster
not termination hearings. Foster parents parents’ home because of the conflict. The
CLP is published monthly by the ABA also lacked a constitutional liberty foster parents denied the conflict, claim-
Center on Children and the Law, a interest in their relationship with foster ing their only concern was promptly
program of the ABA’s Young Lawyers child and thus could not advocate a achieving a safe, permanent home for the
Division, 740 15th St., NW, 9th Fl., position at the termination hearing. child.
Washington, DC 20005-1022. The GAL then moved to terminate the
Director: Howard Davidson A baby was removed from his parents’ care parents’ rights. As the case moved to trial,
Associate Director: Robert Horowitz and placed in foster care based on the foster parents moved to exercise their
CLP Staff: suspected abuse. The local child welfare right to participate in the termination
agency filed a dependency and neglect hearing. The agency argued the foster par-
Editor & Designer: petition and the trial court approved ents should not be permitted to advocate
Claire Sandt Chiamulera treatment plans for the parents. the termination of the parents’ rights be-
202/662-1724 Initial reports to the court about the cause the goal of reunification had not yet
Claire.Chiamulera@americanbar.org parents’ progress in treatment were posi- been abandoned and therefore they lacked
Publications/Marketing Director: tive, but concerns were raised later about a constitutionally protected liberty inter-
Sally Small Inada their mental health diagnoses and treat- est in a continued relationship with the
202/662-1739 ment. The foster parents also reported con- child. The agency argued the foster par-
Sally.Inada@americanbar.org cerns about the parents’ visits with the ents’ role should be limited to testifying
Case Law Summaries: child, including being late to or missing about facts they personally knew about.
Claire Sandt Chiamulera visits, and returning the child from visits During the seven-day termination
Althea Izawa Fuhr hungry or dirty. hearing, the foster parents explicitly advo-
Scott Trowbridge Two mediations between the foster cated termination of the parents’ rights.
parents and parents led to agreements They also opposed motions, made objec-
Subscription Prices:
aimed at improving visits. The parents tions, cross-examined witnesses, and testi-
• $184 individual rate (payable by also agreed to continue working with their fied about the parents’ deficiencies. The
personal check only) therapists and treatment providers. Even- agency, caseworker, and treatment provid-
• $219 institutional, agency, library, tually the court ordered the parties to de- ers continued to support reunification as
and law firm subscribers velop a plan for the child’s return home. the permanency plan. After hearing the
Subscribe online: www.childlawpractice.org A week later, the child’s guardian ad evidence, the court terminated the parents’
Send check or money order, made payable litem (GAL) filed an emergency motion to rights. The parents and agency appealed.
to the: American Bar Association, 740 15th restrict the parents’ visits with the child The Colorado Court of Appeals re-
Street, NW, Washington, DC 20005-1022 based on concerns by the child’s CASA versed, holding the trial court erred by al-
Subscription Inquiries & and foster mother. The concerns were that lowing the foster parents to fully inter-
Address Changes: the child had lost significant weight, the vene at the termination hearing. The par-
parents were involved in domestic vio- ents and agency argued that under a pro-
Call: Charles Teague, 202/662-1513
lence, the father viewed pornography and vision in Colorado statute, the foster par-
E-mail: Charles.Teague@americanbar.org
had left the child alone, and the mother ents’ role at the termination hearing
Copyright © 2011 American Bar had left the child with an unidentified per- should have been limited to providing in-
Association, ISSN 0887-896X son. The court ordered supervised visits formation about the child. The foster par-
The views expressed herein have not been based on these allegations. ents argued the statutory provision could
approved by the House of Delegates or the A month later, the foster parents be interpreted to allow them to fully par-
Board of Governors of the American Bar moved to intervene in the proceedings un- ticipate at the termination hearing.
Association, and accordingly, should not be der a Colorado statutory provision that The court of appeals found the statute
construed as representing the policy of the
American Bar Association. states “. . . foster parents who have the was ambiguous regarding the scope and
child in their care for more than three timing of permissible foster parent inter-
months who have information or knowl- vention. It explained the statute provides
edge concerning the care and protection foster parents an unconditional right to

18 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
intervene in dependency proceedings dency proceedings “after adjudication”— parents’ rights so the foster parents could
“following adjudication.” This language falls within a section concerning disposi- adopt the child.
raises questions over whether foster par- tional hearings only, not a more general The court of appeals held that letting
ents may participate fully in all phases of section covering dependency proceedings the foster parents fully participate as inter-
a dependency case, or whether the extent broadly. A Colorado appellate court held venors violated the parents’ liberty inter-
of participation depends on the issues this statutory provision limits foster par- est in their parent-child legal relationship.
raised at the hearings. ents’ right to intervene as full participants While parents have a fundamental liberty
The appellate court held the statute only in dispositional hearings. While they interest in the care, custody, and control of
provides a limited right of intervention to may exercise their right to be heard during their children, foster parents have limited,
foster parents at termination hearings. The a termination hearing, they may only in- if any, constitutional liberty interests. Fur-
court emphasized the right of foster par- tervene and participate fully in a disposi- ther, a foster parent’s relationship with a
ents to be heard at all proceedings is dis- tional hearing. child does not give rise to a protected lib-
tinct from their right to intervene in pro- In this case, the trial court did not erty interest at termination hearings, par-
ceedings. The legislative history showed limit the foster parents’ participation at ticularly in this case where reunification
the right of foster parents to intervene was the termination hearing. Rather, it let them with the parents was still the permanency
meant to be limited to the dispositional testify in favor of terminating the parents’ goal, and there was no expectation that
hearing of dependency proceedings. rights. The court of appeals found this er- the foster parent-child relationship would
Over the years, the Colorado legisla- ror was not harmless. The foster parent’s continue. Without a constitutional liberty
ture has expanded the role of foster par- testimony, arguments by their attorney, interest, the foster parents could not advo-
ents in dependency proceedings. This has and cross-examination of several wit- cate termination of the parents’ rights.
resulted in overlapping statutory provi- nesses uncovered harmful information The court found the trial court erred
sions that give foster parents rights to be about the parents that was not limited to by allowing the foster parents to fully par-
notified of hearings, be heard at hearings the foster parents’ personal knowledge. It ticipate as intervenors at the termination
or reviews of a foster child’s case, and to also contradicted the rehabilitative pur- hearing and that error was harmful and re-
intervene in dispositional hearings. poses of the termination criteria estab- quired reversal of the order terminating
The statutory provision at issue in lished in Colorado’s dependency statute the mother’s parental rights.
this case—the right to intervene in depen- by encouraging the court to terminate the
Siblings of Deceased Child Could Not Recover on Wrongful Death and Survival Claims
Beggs v. State Dep’t of Social & Health Servs., 2011 WL 543817 (Wash.).
Adoptive children whose sibling died due and ended her support payments. from the medical malpractice statute; and
to foster mother’s neglect could not The child’s siblings and personal rep- (2) the deceased child’s adoptive siblings
recover on wrongful death and survival resentative filed wrongful death and sur- were dependent on him for support under
claims against health care providers. vival actions against the child welfare the wrongful death and survival action
Siblings were unable to show they were agency and its employees, the deceased statutes based on adoption support pay-
dependent on child, and although health child’s health care clinic and two of its ments the adoptive mother received for
care providers are subject to civil claims doctors, and the child’s primary care phy- the child.
under mandatory reporting statute, sician and his psychiatrist. They argued Regarding the first issue, the court
court upheld lower court’s partial the primary care doctor and psychiatrist found that child abuse victims are within
summary judgment order dismissing knew of the child’s severe weight loss, the class for whom the legislature enacted
claims against health care providers. stunted growth, and behavioral problems, the mandatory reporting statute and that
and the CPS referrals. the statute implicitly supports a civil rem-
The child and six other children were The health clinic and doctors moved edy for failing to meet that duty. Further, it
placed in a foster home between 1997 and for partial summary judgment, arguing found an implied cause of action was con-
2002. Later, the child and three other first that the wrongful death and survival sistent with the statute’s underlying pur-
children were adopted by the foster actions should be dismissed since the sib- pose to prevent further abuse and safe-
mother, despite 23 referrals to child lings were not dependent on the child. guard children.
protective services alleging physical or They also moved for dismissal of any civil The doctors claimed that a civil rem-
sexual abuse and neglect in the foster action under the mandatory reporting stat- edy implied by the mandatory reporting
mother’s home. At least three of the ute because the medical malpractice stat- statute did not apply to them because the
referrals involved allegations of physical ute precluded it. The trial court granted legislature created a separate liability
abuse of the child. The child also lost these motions. scheme for negligent health care in
significant weight while in the foster The child’s personal representative Washington’s medical malpractice statute.
mother’s care. appealed. The court of appeals granted re- They further claimed their duty to report
On his seventh birthday, the child view and certified the case to the state su- only arose during the course of their em-
died of dehydration and starvation due to preme court. ployment and in the context of a doctor-
his adoptive mother’s neglect and abuse. The Supreme Court of Washington patient relationship.
He weighed 28 pounds. The child welfare agreed to decide if (1) Washington’s man- The medical malpractice statute pro-
agency then removed the other children datory reporting statute implies a cause of vides remedies for claims against doctors
from the foster/adoptive mother’s home action against health care providers apart (Continued on p. 26)

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 19
CASE LAW UPDATE continued Research performed on Westlaw compliments of West Group.

Alabama jurisdiction based on emotional harm Delaware
D.B. v. K.B., 2011 WL 190049 (Ala. Civ. where father called mother derogatory Brown v. Div. of Family Servs., 2011 WL
App.). VISITATION, RELATIVES names and children reported not being 767095 (Del.). TERMINATION OF
Juvenile court properly awarded visitation afraid of father; jurisdiction based on PARENTAL RIGHTS, INCARCERATION
to maternal aunt and uncle with children emotional harm requires showing that a Family court did not improperly terminate
who were in custody of paternal aunt even child is suffering or at risk of suffering mother’s parental rights solely due to
though they lacked close relationship severe anxiety, depression, or aggression. incarceration; court considered a number
with children until after parents’ death; of factors in failure to plan analysis
Colorado including that mother failed to visit
evidence showed continued contact In re C.L.S., 2011 WL 724780
between children and maternal family was consistently even when not incarcerated
(Colo. Ct. App.). TERMINATION OF and failed to take advantage of services
in their best interests. PARENTAL RIGHTS, VOLUNTARY offered in prison that were required on
RELINQUISHMENT case plan.
M.J.C. v. G.R.W., 2011 WL 190047 (Ala. Judgment terminating father’s parental
Civ. App.). TERMINATION OF rights was void due to fraudulent state- District of Columbia
PARENTAL RIGHTS, CRIMINAL ments by mother indicating she did not In re A.O.T., 10 A.3d 160 (D.C. 2010).
CONVICTIONS know identity of father; mother’s false TERMINATION OF PARENTAL RIGHTS,
Juvenile court properly considered statement that she did not know father’s JUDICIAL OFFICERS
father’s prior convictions and imprison- name or contact information resulted in Where parent did not consent to termina-
ment for five felonies as ground for termination via publication and default tion trial before magistrate, court should
termination of his parental rights; under denying father opportunity to challenge have assigned case to an associate judge
Alabama case law, a juvenile court may termination petition. per court rule; the Family Court Act’s “one
rely on a felony conviction and resulting
family one judge” rule was not meant to
imprisonment as basis for termination, Connecticut be absolute and thus does not conflict
regardless of when the conviction and In re Dylan C., 10 A.3d 100 (Conn. App. with the prior court rule indicating that
imprisonment occurred. Ct. 2011). TERMINATION OF PAREN- magistrates could only hear terminations
TAL RIGHTS, REPRESENTATION with the consent of the parties and may be
Alaska There was no evidence of ineffective
Pravat P. v. Dep’t of Health & Social appropriate in some cases for judicial
assistance of counsel where mother’s impartiality.
Servs., 2011 WL 563184 (Alaska). appeal did not argue how she was preju-
TERMINATION OF PARENTAL RIGHTS, diced by counsel and evidence of her Florida
INDIAN CHILD WELFARE ACT failure to comply with case plan or In re C.N., 51 So. 3d 1224 (Fla. Dist. Ct.
Superior court correctly found that agency complete services showed that termina- App. 2011). TERMINATION OF PAREN-
made active efforts to reunify Indian child tion would have resulted regardless of the TAL RIGHTS, CRIMINAL VIOLATIONS
with father by actively assisting him, level of legal advocacy at trial. Father’s case plan that required that he
including providing a hearing aid,
have no further law violations was not a
visitation support, therapy, an interpreter, In re Jessica M., 2010 WL 5129129 valid basis to terminate his parental rights
assisting with potential cultural differ- (Conn. App. Ct.). DEPENDENCY, as it impermissibly expanded enumerated
ences, providing a class on fetal alcohol JURISDICTION list of crimes that constituted termination
exposure, and arranging psychological Where 17–year-old youth alleged she was grounds and conflicted with rule against
evaluations. dependent, but turned 18 before adjudica- termination based primarily on
tion, court properly dismissed her petition incarceration.
Ralph H. v. Dep’t of Health and Social for lack of subject matter jurisdiction;
Servs., 2011 WL 338044 (Alaska). statute did not provide for retroactive Wade v. Dep’t of Child and Families, 2011
TERMINATION OF PARENTAL RIGHTS, commitment to the department. WL 362412 (Fla. Dist. Ct. App.).
REASONABLE EFFORTS
EDUCATION, ROAD TO
In termination trial, superior court State v. Farah, 2011 WL 341657 (Conn. INDEPENDENCE PROGRAM
properly found the agency made reason- App. Ct.). ABUSE, RECORDS Agency hearing officer’s order terminating
able efforts to preserve the family through In criminal trial for sexual assault, trial youth from road to independence pro-
numerous referrals made to several service court properly denied defendant’s request gram, an educational program for former
providers; court could consider efforts that the court conduct an in-camera foster youth, was not final for the purposes
made before removal in analysis of review of child welfare agency records of judicial review since administrative
reasonable efforts by the agency to where he made only a general assertion appeal procedures were not exhausted;
preserve the family. that the records might contain exculpa- state statute required further review by the
California tory information; a request for production agency secretary.
In re Daisy H., 120 Cal. Rptr. 3d 709 (Ct. of confidential child welfare records
requires a preliminary showing that Winters v. Brown, 2011 WL 222321 (Fla.
App. 2011). DEPENDENCY, Dist. Ct. App.). CHILDREN’S RIGHTS,
EMOTIONAL ABUSE records will be material and favorable to
the defense. HEALTH CARE
Evidence was insufficient for dependency Award of power to make health care

20 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
Call 202/662-1724 for a copy of any case reported here.
decisions to father over mother where she custodians; trial court has a duty to housing that was suitable for child, and
refused to allow child to be immunized determine if ICWA applies when facts was recently criminally convicted for
due to her religious beliefs was supported suggest subject child may be an Indian larceny and marijuana possession.
by evidence; multiple experts testified child.
about benefits and risks of immunization, Oregon
and court could have reasonably found Mississippi In re A.L. A., 2011 WL 521259 (Or. Ct.
that failing to immunize child was K.K. v. N.F., 2011 WL 386818 (Miss. Ct. App.). TERMINATION OF PARENTAL
harmful based on the testimony. App.). TERMINATION OF PARENTAL RIGHTS, REUNIFICATION
RIGHTS, ADOPTIVE PARENTS Evidence did not show that child’s
Idaho In proceeding in which first set of adop- reintegration into mother’s home within
In re Doe, 2011 WL 322365 (Idaho). tive parents who consented to child’s reasonable period would be improbable
ADOPTION, GRANDPARENTS adoption by second set of adoptive due to conduct or conditions that would
Where children were removed from parents filed motion to set aside second likely not change; expert testimony
physical custody of grandparents by child adoption and terminate second adoptive established mother might be able to
protective services and parents consented parents’ rights, evidence did not support resume caring for child in 6-to-18 months
to termination, trial court did not err in termination of second adoptive parents’ and no evidence established that this
denying grandparents’ petition to adopt rights and chancellor’s decision granting timeframe was unreasonable based on
grandchildren where child welfare agency second adoptive parents’ requests for child’s needs.
would not consent because consent of the protection order was not an abuse of
custodian is required for adoption under discretion. Texas
state law. In re D.O., 2011 WL 173555 (Tex. App.).
New Jersey TERMINATION OF PARENTAL RIGHTS,
Louisiana New Jersey Div. of Youth & Fam. Servs. v. EVIDENCE
In re L.M., 2011 WL 230328 (La. App. P.W.R., 2011 WL 222125 (N.J.). DEPEN- Trial court properly admitted foster
Ct.). DEPENDENCY, HOME DENCY, CORPORAL PUNISHMENT mother’s testimony regarding child’s
CONDITIONS Stepmother’s occasional slaps of 16-year- placement of a swastika on one of his
Record supported conclusion that mother old teen’s face as discipline measure did school textbooks; evidence was relevant
failed to provide children with necessary not constitute “excessive corporal to determining if child’s mother endan-
food, clothing, shelter, and care and punishment” within meaning of statutory gered his physical or emotional well-
placed children’s health and safety at risk; definition of abused or neglected child; being and evaluating child’s best interests
home conditions were alarming as use of “excessive” in statutory definition and record failed to show that admitting
evidenced by children’s lack of personal recognized need for some parental the evidence unfairly prejudiced mother.
hygiene, clean clothes, food, supervision, autonomy in child rearing that may
and unsanitary home. involve need for punishment. Vermont
In re K.M.M., 2011 WL 748145 (Vt.).
Maryland New York CUSTODY, PARENTAL PRESUMPTION
In re Nancy H., 2011 WL 669117 Ferguson v. Skelly, 2011 WL 102549 (N.Y. Trial court’s order denying father’s motion
(Md. Ct. App.). DELINQUENCY, App. Div.). CUSTODY, GRANDPARENTS to end guardianship arrangement that
CRIMINAL RECORDS Trial court properly found that extraordi- placed child in care of grandfather
Juvenile who pled guilty in trial court to nary circumstances did not exist to unfairly placed burden of proof on father
second degree assault and was transferred support allowing grandfather to retain to show why returning custody to him was
to juvenile court for disposition was custody of children whom he cared for in child’s best interests; grandfather
entitled to have criminal record ex- while children’s mother and father were should have had burden to overcome
punged; statute authorizing expungement abusing drugs; despite father’s shortcom- parental presumption favoring custody
of criminal records when case involving a ings, he had turned his life around and with father.
child is transferred to juvenile court completed substance abuse classes,
applies to juveniles who are waived after a underwent counseling, secured a job and Washington
plea is entered but before disposition. stable home, and was living a healthy In re Akon, 2011 WL 450236 (Wash. Ct.
lifestyle free from drugs. App.). PATERNITY, PRESUMPTIONS
Minnesota Stepfather was not presumed father of
In re M.R.P.-C., 2011 WL 206200 (Minn. North Carolina children born during mother’s first
Ct. App.). DEPENDENCY, INDIAN In re D.H.H., 2010 WL 5421477 (N.C. Ct. marriage, despite his claim that mother’s
CHILD WELFARE ACT App.). TERMINATION OF PARENTAL first marriage in Sudan was invalid
Trial court abused its discretion by RIGHTS, FAILURE TO IMPROVE because her husband failed to pay her
granting paternal grandparents’ custody Termination of father’s parental rights was dowry; evidence showing that first
petition without inquiring whether ICWA supported by evidence showing he left husband was legal and biological father of
applied to custody proceedings or child in foster care for over 12 months and children overcame presumption of
conducting evidentiary hearing to failed to make progress to address issues paternity.
determine whether grandparents met that led to child’s removal; father contin-
statutory requirements of de facto ued to use drugs, had not secured stable

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 21
(Continued from p. 17) agencies, the New York City 311 call reasonable efforts to prevent or
suspects child neglect or abuse and line, and direct calls from eliminate the need for placing a
calls the state hotline, a child parents who have found CFR’s infor- child outside their home.3 Reason-
protective services (CPS) worker mation online or received CFR’s able efforts can include holding
employed by children’s services is phone number from former clients. family conferences and offering pre-
supposed to investigate the parent Once referred, CFR assigns an inter- ventive services.
and offer the family services. Often disciplinary team to provide legal
parents mistrust the caseworker representation and advocacy. An ad- Reporting
(who has tremendous power to take vocate can assist the family during In most states an investigation is
their children) and so will not the investigation by: prompted by a call to a central
follow up on referrals for services.  providing ongoing information registry number/hotline that fields
Or, frequently parents are asked and clear explanations regarding calls by anonymous or mandated
to attend meetings about their situa- the social work and legal aspects reporters regarding alleged child
tion, but feel their voices are not of the investigation process; abuse and neglect. The central
heard, are too intimidated to ask  advocating for reasonable and registry is designed to “aid in
questions, don’t understand why realistic service plans that address investigations, treatment and pre-
they are being investigated, or sim- the family’s identified needs; vention of child abuse cases and to
ply don’t know what questions to maintain statistical information for
 thinking creatively about different
ask about the investigation, pro- staffing and funding purposes.” 4
ways to address the allegations;
cess, services, etc. The information received is com-
and
Parents may be asked to attend piled and sent to the local child
services that are inappropriate, not  identifying resources the family protective agency’s field office.
culturally sensitive, or that conflict can use to address concerns of the After CPS receives a report, fed-
with employment or other obliga- child welfare agency. eral law requires that it take the fol-
tions. Parents may also be asked to Between July 2007 and Novem- lowing investigation steps:
produce their children for inter- ber 2010, CFR represented parents in
views with a caseworker or medical dependency cases, in addition to rep- Safety assessment: CPS agencies
professional. This raises many resenting parents like Ana whose conduct a safety assessment to de-
questions about whether they are cases were not before the court. termine the risk to the child of stay-
required to produce their children, CFR’s legal and social work staff ing in the home. If CPS staff mem-
whether CPS can speak with their successfully diverted court filings in bers feel the child cannot safely re-
children outside the parent’s pres- 70% of the cases in which they met a main at home, they will remove the
ence, and the consequences if a client during the investigation. CFR child immediately and a depen-
parent refuses to cooperate with also successfully diverted foster care dency case will be filed in family
these requests. placements in 90% of the cases in court against the person(s) named in
During these critical, early which a dependency case was filed the report.5 If the child can remain
phases of an investigation, having a and CFR staff had met the family at home, the investigation will
strong advocate can prevent misun- during the investigation. continue.
derstanding and miscommunication At this stage, CFR’s CAT teams
and promote positive efforts to Legal Framework first get involved with a family. As
keep a family safe and out of the Governing Laws stated above, either a parent calls
court system. Most people do not Federal and state laws generally and requests assistance or we re-
wait until they are standing before a govern what happens when child ceive a referral from one of our
judge to consult an attorney. In protective services (CPS) intervenes community-based partners. Gener-
cases like Ana’s, CFR has created a in a family’s life when child abuse or ally this is a parent’s first contact
referral partnership with other legal neglect is suspected. These laws vary with an attorney. At this stage, an
services agencies and community from state to state, so it is important appointment is scheduled for the
organizations. The only require- to know your state’s laws and regula- parent to come to CFR’s office to
ments for the referral are that the tions.1 Knowing and understanding meet with a team comprised of an
parent is currently under investiga- this legal framework for the investi- attorney and a social work staff
tion by children’s services in New gation will make you a more effec- member. We prefer that a parent
York City and wants help navigat- tive advocate. 2 meet with the attorney and social
ing the process. The legal framework is based on work staff member together and that
CFR also gets referrals from laws and regulations that require this meeting occur before the next
partnerships with government child welfare agencies to exercise investigation stage (generally a

22 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
home visit). (friends, relatives, child care provid- Conference: The CPS team—case-
During the first meeting, parents ers, school personnel, etc.) in the worker, supervisor, manager—may
are advised of their legal rights and event they want to gather further in- call a meeting to gather more infor-
given information on the investiga- formation from collateral sources. mation, clarify information and/or
tive process. In addition to inform- At this visit, the investigator may discuss services for the family. Usu-
ing the parent of their rights, we also ask about school and medical ally conferences are held in the CPS
have them sign a retainer agreement information and may ask the parent field office.
for investigation purposes only, dis- to sign releases so they can get in- An attorney rarely attends con-
cuss confidentiality, discuss our in- formation directly from providers.6 ferences. In fact, in New York they
dividual roles and how we can assist Investigators also routinely check are generally prohibited from at-
them during their investigation. Par- the home for food, confirm all im- tending. This is where preparation is
ents are given contact information in munizations are current, speak to most important for both the parent
case CPS comes to their house un- children, check children for marks and the social work staff member of
announced. They then have a way and bruises and assess other safety the team. A good support at this
to contact a team member to walk concerns in the home. CFR’s social meeting can mean the difference be-
them through the visit. work staff can attend this visit. At- tween having a case go to court or
Ana’s case: In the vignette, after torneys may also attend but usually not. During the conference, the so-
a case was called in by the group the team decides to send a social cial work staff is in contact with the
home, the CFR team met with Ana work staff person. attorney to inform them of deci-
to discuss the investigation process, Before the visit, the social work sions. If a decision is made to go to
her rights, and how the CFR team team member and attorney meet to court, the attorney meets the parents
could help her during this process. discuss strategies for making the at the courthouse. The parents and
When a home visit was scheduled, home visit successful as well as ar- CFR social worker bring the docu-
Ana understood how important it eas that may present problems. In ments that were prepared at the con-
was to contact CFR to inform them CFR’s experience, social work staff ference including any written
so they could be present during the members have been extremely ef- decisions.
next investigation phase. fective at gathering information Ana’s case: In Ana’s case, the
about the investigation, supporting social worker attended several con-
Home visit: The local CPS agency’s parents, and diverting the case from ferences with Ana. She was able to
field office assigns a caseworker to court. present documentation to the child
make the initial home visit. The se- Ana’s case: In the vignette, Ana welfare organization on the positive
verity of the allegations determines contacted CFR when the CPS steps (e.g., parenting class, ESL
how quickly a home visit is made. A worker scheduled a home visit. The classes) that Ana had been taking to
severe/emergency case is usually in- social worker was able to attend the address their and the foster group
vestigated within 24 hours, and meeting and supported Ana. The home’s concerns. The social worker
within three-to-five days for CPS worker assigned to the case did also helped foster a positive work-
nonemergency cases. not speak Spanish so our social ing relationship between Ana and
During the home visit, the case- worker acted as a translator. If our the staff at the foster group home
worker or law enforcement person- social worker had not been present, and the CPS worker. Creating a
nel should identify themselves, in- someone else in the home could positive working relationship with
form the person named in the report have been asked to translate, but we all parties helped them see Ana as
that a call has been made alleging have found most people do not an individual and address her needs.
neglect or abuse of a child, and an know how to translate the child pro-
investigation has started. The person tective issues as clearly as someone Case Closure: The CPS caseworker/
under investigation is under no obli- who works in the field. Although team should send a closing letter
gation to communicate with the in- this sounds like a unique case, it stating the outcome of the investiga-
vestigator. The investigator should happens often. We have also found tion within 60 days from the start of
explain the option not to communi- that parents understand the process the investigation.
cate as well as the potential conse- more in their native tongue and that The investigation will be closed
quences (i.e., court intervention, re- they listen to our social work staff with the case either “indicated”
moval of a child). The investigator members and attorneys because (some credible evidence for found)
will want to speak with all people in they take time to build a relationship or “unfounded” (no credible evi-
the home and gather information and explain the details of an dence found).
about others who have regular con- investigation. If a case is indicated or founded
tact with the subject children but no court case is filed, the team

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 23
example, both an attorney and a
Preparing Your Client for a CPS Investigation social worker/advocate can explain
Parent clients often have many questions during a CPS investigation. the stages of an investigation to a
Advocates can help parents prepare for the investigation and alleviate parent. The following tips, com-
their concerns by thinking through common questions in advance. piled from CFR’s work with
 How is neglect defined in your state?
precourt cases, are designed to help
attorneys, social work profession-
 What is the Child Protective Services (CPS) protocol for the length of
als, and parent advocates think
the investigation in your state?
about steps each professional can
 Should they expect a CPS worker to do home visits school visits,
take.
etc.? If so, how often?
 Will CPS speak to other people regarding the investigation? If so,
Practice Tips—Attorneys
who? Babysitters? Neighbors?  Research your state’s child pro-
 What privacy rights do parents have? tection statutes and regulations.
 When does CPS have the right to remove my child? This may sound basic, but you need
 When does CPS have to file a case in court? to understand what CPS is empow-
 If my child is removed, what are my immediate rights?
ered to do when investigating a
family.
attorney helps the parent through an family, child protective workers in
administrative process where a par- some states must inform the parent  Develop a “know your rights”
ent can challenge the finding. This or guardian that they will ask the checklist for parents that explains
process differs in every state. In court to intervene if the family what is supposed to happen.
New York, it involves writing a letter refuses to cooperate.9
 Learn how to explain the investi-
to request expungement, or if that is
gation process and keep track of
denied then a hearing. Legal Representation frequently asked questions (see Pre-
Ana’s case: Although the team States vary over whether a parent paring Your Client for a CPS
was able to stave off a family court may have an attorney or other Investigation).
case, Ana’s case was indicated. The advocate represent them or be
social worker and attorney helped present for any meeting or investiga-  Ask the parent about any meet-
Ana craft a letter to the state central tive interviews during a child welfare ings they are asked to attend. If you
registry to ask for the case to be ex- investigation.10 Because of this can accompany the parent, find out
punged and are awaiting a reply. If ambiguity, it is important to look at who is convening the meeting and
denied, the team will help prepare your state’s dependency or child contact that person about coming.
Ana for a hearing. welfare statute and regulations. Be clear that you are an attorney. If
Remember, even if you cannot you are told attorneys are not per-
Court Intervention attend these meetings or interviews, mitted, consider putting in writing
In many states, the legal framework you can prepare your client for (letter) that you were told this and
allows child welfare agencies to ask them. that you have advised your client to
the court to intervene when there is bring another support person to the
reasonable cause to believe a child’s Removal meeting (relative or community
life or health may be in danger.7 A At any point in the investigation, the member).
request for a court order gaining investigating team can decide to file
access to a child and a family’s a court case and ask for the  Determine when parents are en-
home is held to a higher standard child(ren) to be removed from the titled to representation. If your state
than “imminent risk”8 and can only home. In some states, the child has a procedure that permits the
be made in very specific circum- welfare agency may remove a child protective service agency to seek a
stances, such as when a CPS worker for a specific period before asking court order to either take children
has been unable to gain access to a the court to intervene. into temporary custody during an
child or a home during an investiga- investigation OR to enter a home,
tion. The inability to access the Supporting a Family learn whether parents are entitled to
family can be for many reasons, but representation. Tell the parent to no-
during an Investigation tify you if they are served with any
generally orders to gain access are
During an investigation,many
sought when a family is refusing official papers directing them to ap-
professionals can perform the same
access. To protect the rights of the pear in court. Even if the parent is
roles in helping a client. For
not entitled to representation, if you
24 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
can appear with a parent on the  Be prepared if a parent chooses  Encourage the client to keep im-
court date, your presence may help not to cooperate. Remember there is portant numbers readily available.
the court and the protective services no requirement that a parent must For example, the number of their
agency be more attentive to reason- cooperate with a CPS investigation. child’s pediatrician or health clinic,
able efforts obligations owed to the Know the legal remedies that CPS prevention agencies the family has
family. has and the legal consequences in worked with, or a relative who
your state if a parent refuses to al- could support or be a resource for
 Develop a conflicts procedure for low access to the child or to their the child.
investigation clients. Remember, home so you can counsel your cli-
even at this early stage, you cannot ent accordingly.  Keep an updated list of important
be sure what case may end up in resources for clients. If your local
court and you cannot counsel two Practice Tips—Social Workers child welfare agency has an
parents or adults involved with the ombudsman’s office or parent
and Parent Advocates
children. hotline, parents can call them di-
 Inform the client about the investi-
rectly with a complaint or
Set clear boundaries from the first gation stages. The more information
 question(s). For example, New York
discussion about confidentiality and the client has the more prepared he/
has both an Office of Advocacy and
other policies you have in your of- she will be for questions that the
a parent hotline, Michigan has an
fice. For instance, it is important to CPS worker may ask. It helps to un-
Office of Children Ombudsman, and
inform your client what types of derstand the actual (versus pub-
Arizona has a Parent Assistance Pro-
case you are able to represent them lished) practices of the CPS agency
gram (24-hour hotline), Family Ad-
on if the case goes to court (i.e., during an investigation. Despite how
vocate Program, and a Client
custody, visitation, administrative you feel about investigations, it is
Advocate’s Program.
hearings regarding sealing/expung- important to know exactly how they
ing CPS records, dependency work so you can advise parents.  If the client has a positive working

cases). relationship with any service provid-
 Attend meetings with the client.
ers, encourage the client to ask their
Develop a referral network. If you Generally social work staff, parent
 service providers to contact the CPS
do not work or contract with social advocates, and other advocates may
worker, attend any meetings or con-
workers, establish connections with attend meetings, conferences, home
ferences, or send a letter about the
local community-based or social visits, etc. When possible, attend as
client’s progress and compliance
services organizations that have a many of these meetings with clients.
with services.
track record for supporting parents. If you cannot attend, take time to
Your clients may need referrals out- prepare the client for the meeting,  If a conference or meeting is
side of the CPS process and you answer questions, and follow-up af- scheduled and you cannot attend,
want them to have quick access to terwards. encourage the client to invite people
these supports. to the conference who will support
 Learn the agenda and format of
him/her. Remind clients to bring
Be prepared to meet with the cli- meetings administered by the CPS
 someone who will be supportive.
ent and/or your own social work agency. Look at the county Web site
Someone who is adversarial may
staff member to assess the likelihood for information about meetings/con-
change the tone of the meeting and
of a case being filed as the investi- ferences that your clients may be in-
unwittingly put the client in a diffi-
gation proceeds. Keep track of what vited to attend. This will help you
cult position or taint the CPS team’s
the agency is or is not doing so that understand the process and prepare
view of the client.
if the case proceeds to court you the client on what to expect during
have begun to develop both a the meeting.  Ask the client what services would

theory of “reasonable efforts” and benefit the family most. The client
 Encourage the client to organize
can anticipate the allegations. This should discuss what issues they be-
all medical and school information
early work by the attorney during lieve led to the current situation and
(i.e., evaluations, immunizations, re-
the investigation can also make it think about services that may help
port cards) for all children. Tell the
more likely that if children are re- avoid the situation in the future. For
client never to give original docu-
moved as a result of the filing of a example, if the parent needs help
ments to the caseworker, only pho-
formal neglect allegation, the attor- getting a special education evalua-
tocopies, and to bring any relevant
ney is prepared to proceed to an tion for the child, would she be
documents to meetings.
emergency hearing to get the chil- open to working with someone who
dren returned home. could help her navigate the educa-

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 25
tional system? It is important for the Involved in the Child Welfare System. states except Hawaii the children can be
client to think about what he/she Plan to attend the second national removed by the CPS agency. In Hawaii only
conference this July 13-14, 2011 in law enforcement can remove a child from the
will agree to regarding services. The
Arlington, VA. Learn more at home (www.hawaii.gov).
client does not have to agree to ev- 6
www.abanet.org/child/ In our experience, most people will sign
erything that is proposed. It is im- releases without reading them thoroughly or
parentrepresentation/home.html.
portant for the client to have asking for them to be filled out completely. It is
thought about why he or she may Endnotes important for the person to read the petition/have
not want certain services and be 1
<www.childwelfare.gov/systemwide/ someone read it to them, make sure it is filled
able to state that clearly to the CPS laws_policies/statutes/resources.pdf> out completely, and an expiration date is
provided.
team. The client needs to be viewed 2
E.g., in certain states a child can be removed
7
as cooperative, but not over- from their parents for up to 48 hours See N.Y. Fam. Ct. Act § 1034 and La. Child
(California, www.ccrwf.org) or up to 72 hours Code Art. 612-615; Mass. Ann. Laws ch.
whelmed with unnecessary services.
(Arizona, www.egov.azdex.gov) without court 199 § 51A-51F; 110 Mass. Regs. Code 4.20,
intervention. 4.27, 4.32.
 Discuss the client’s strengths. 8
3
See Adoption and Safe Families Act (ASFA) E.g., in New York, the applicable standard for
During an investigation, the parent
of 1997, 42 U.S.C. § 675; Title 18 New a court to enter an order requiring cooperation
is constantly bombarded with his or York Comp. Codes Rules and Regulations with entry to a home is probable cause. See
her negative attributes. Help the cli- §§ 423.2, 423.4, 430.9 et seq.; N.Y. Fam. Ct. Act §1034.
ent identify his/her strengths so the <www.dss.state.la.us/>; La. Child Code Art. 9
N.Y. Fam. Ct. Act § 1034.
client can highlight them at any 612-615; 390 Neb. Admin. Code § 1-003; 10
See D.C. Code § 4-1301.09; Neb. Rev. Stat.
meetings or conferences. Ohio Rev. Code Ann. § 2151.421; 23 Pa.
§ 28-710-728; 390 Neb. Admin. Code § 1-100
Cons. Stat. Ann. § 6373(b).
et seq. For example, in Hawaii an attorney
Conclusion 4
<www.childwelfare.gov/systemwide/ can attend a child protective meeting,
Regardless of whether the law laws_policies/statutes/centregall.pdf> whereas in New York attorneys may not
allows attorneys or social workers to 5
Through our research, we found that in all attend these meetings.
actively participate in an investiga-
tion or meeting, you can still pre-
pare your client on what to expect (Beggs v. State, continued from p. 19) Washington’s wrongful death statute cre-
and how to best prepare. Preparing for injuries resulting from health care, ates two kinds of beneficiaries. First tier
clients to work with CPS in a suc- defined as the process of using skills in beneficiaries need not show dependency
cessful and productive way pro- examining, diagnosing, treating or car- to recover because of the nature of their
motes positive outcomes for fami- ing for a patient. The court explained relationship to the deceased. Second tier
lies. As in Ana’s case, it can also that the doctors’ duty to report did not beneficiaries may only recover if there
help avoid a court filing and keep necessarily arise while they were provid- are no first tier beneficiaries and must
the family together. ing health care. Rather, doctors and show dependency to recover.
health care professionals are among The adoptive siblings were second
____________________________________________________________________
those professionals who must report tier beneficiaries who had to show they
Elizabeth Fassler, JD, is a litigation
when they have “reasonable cause to be- were either dependent on the deceased
supervisor and Wanjiro Gethaiga, lieve a child has suffered abuse or ne- child financially or for services. They
LMSW is a social work supervisor glect.” They do not have to provide claimed they were dependent on the
at the Center for Family Representa- health care or exercise their special skills child because the child welfare agency
tion, Inc. Law interns Shana Barone, in examining, treating, or diagnosing a provided $717 per month in adoption
Shane Tele, and Erin Husted, helped child to form this reasonable cause. The support payments to the adoptive mother
research states’ laws and regulations suspicion can arise during the course of for his care; the household was
for this article and CFR’s Develop- professional employment and the thresh- dependenct on the adoption support
ment and Communications Associ- old of suspicion is lower. payments; and the adoptive mother
ate, Annie Stup helped with statisti- The court found the medical mal- pooled the support money she received
cal information. The authors thank practice statute did not preclude a civil with other family resources that benefit-
claim against the doctors in this case un- ted them.
Michele Cortese, deputy director
der the reporting statute. However, be- The court rejected the siblings’
and Jill Cohen, social work supervi-
cause a claim for failure to report sus- claims, finding the agency provided
sor at CFR for the information they pected abuse could only be brought as a separate support payments to supple-
shared and their constant support. survival action, the court affirmed the ment their support and that they were not
trial court’s partial summary judgment dependent on the deceased child’s sup-
This article was based on a presenta- order dismissing the claim. port payments. The court therefore af-
tion at the First National Parents’ Regarding the second issue— firmed the trial court’s partial summary
Attorneys Conference, held May 2009, whether the adoptive siblings were de- judgment dismissing these claims.
by the ABA National Project to pendent on the deceased child—
Improve Representation of Parents

26 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
POLICY UPDATE

Support for Kin Caregivers of Children Whose Parents Are Incarcerated
by the Council of State Governments Justice Center
The following material is drawn from an action plan designed to raise awareness of the needs of children of
incarcerated parents and inform policies and practices. The action plan was developed by the Council of State
Governments Justice Center, with support from the Annie E. Casey Foundation and the Open Society Institute.
The Problem  Kinship caregivers of children likely to live with their siblings if
A large percentage of children of with a parent in prison face a they are placed with relatives.14
incarcerated parents are cared for range of distinct challenges,
by the other parent or other including arranging transportation Promising Practices
relatives during parental incar- for prison visits, paying for There are a number of services
ceration; these caregivers face collect calls from the incarcerated and supports that can assist chil-
multiple challenges. parent, helping children cope dren of incarcerated parents and
with the emotional trauma associ- their kinship caregivers.
 While most children with an
ated with parental incarceration,
incarcerated parent in state prison  Kinship navigator programs are
and confronting the stigma
live with the other parent, more designed to provide these
associated with a relative’s
than one-fifth of children live caregivers with referrals to
incarceration, especially when the
with grandparents or other rela- needed services and information.
caregiver is also the parent of the
tives1—who are considered In Washington State, for example,
incarcerated individual. 9
kinship caregivers.2 policymakers have expanded
 According to a 2008 Bureau of Despite the challenges, research funding to support navigator
Justice Statistics report, 67 per- suggests that kinship placement programs, which help facilitate
cent of incarcerated mothers can result in better outcomes for linkages with local resources such
reported having a child placed children than non-kinship as caregiver support groups,
with a grandparent or other placements. training, and respite care.15
relatives.3 Nonparental caregivers  Kinship care provides an alterna-  Financial assistance is available,
face multiple challenges, such as tive to institutional and non- including subsidized guardian-
enrolling children in school and familial foster care. Children in ship, one-time cash payments,
obtaining government services kinship care generally experience and federal benefits such as
for them. greater stability than those in Temporary Assistance for Needy
 About one-quarter of all children foster care.10 Families (TANF), to defray the
in foster care are living with  Research suggests that they costs of integrating a child into
relatives. 4 experience fewer placement the caregiver’s home.16
Kinship caregivers encounter changes than children placed with  Legal assistance can be accessed
many difficulties, particularly foster parents with whom they are to help caregivers obtain the
when the child has an incarcerated unrelated. 11 authority to make educational and
parent.  Compared with children in medical decisions on behalf of
 On average, kinship caregivers nonfamilial foster care, children the children in their care.
are older,5 poorer,6 more likely to in kinship care have better attach-  Resource or 211 directories,
be single, and less educated than ments to their caregivers and navigator systems, or libraries
nonrelative caregivers.7 fewer behavior and school may provide listings of respite
 Kinship caregivers need assis- problems. 12 care, support groups, counseling,
tance accessing a range of ser-  Children removed from their child care, and other services for
vices and supports, for them- homes after reports of maltreat- caregivers.
selves and the children in their ment have significantly fewer Several state and federal laws
care. Common service needs behavior problems three years have been enacted to improve
include legal services, physical after placement with relatives support for all kinship caregivers.
and mental health care, child than children put into non-  In Washington, Kentucky, New
care, housing, education, and familial foster care.13 York, and Connecticut, lawmak-
financial services.8  Children in foster care are more ers have appropriated funds for

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 27
available resources, such as naviga-
Fostering Connections to Success and Increasing Adoptions Act tor systems, respite care, support
Signed into law on October 7, 2008, the federal Fostering Connections groups, counseling, legal services,
to Success and Increasing Adoptions Act (P.L. 110-351) helps children in and child care. Employ various
foster care by promoting permanent families for them through relative types of media, including public
guardianship and adoption and improving education and health care. service announcements through
 Subsidized Guardianship Payments for Relatives. Helps children in radio and television, 211 informa-
foster care leave care to live permanently with grandparents and other tion directories, Internet sites, and
relative guardians when they cannot be returned home or adopted. through partner service providers.
Includes federal support to states to assist with subsidized guardianship
Reprinted with permission from Children of
payments to these families.
Incarcerated Parents: An Action Plan for
 Notice to Relatives When Children Enter Care. Increases opportuni- Federal Policymakers, published by the Council
of State Governments, Justice Center. View the
ties for relatives to step in when children are removed from their parents
full action plan at: www.justicecenter.csg.org
and placed in foster care by ensuring they are notified of a removal.
 Kinship Navigator Programs. Creates grants for Kinship Navigator 1. Glaze, Lauren E. and Laura M. Maruschak.
programs, through new Family Connection grants, to help connect Parents in Prison and Their Minor Children.
Washington, DC: U.S. Department of Justice,
children living with relatives, both in and out of foster care, to supports Bureau of Justice Statistics, 2008.
and assistance they need. www.ojp.usdoj.gov/bjs/pub/pdf/pptmc.pdf.
 Commitment to Keeping Siblings Together. Preserves the sibling 2. Kinship caregivers are any relatives other than
a child’s mother or father who provide care for
bond for children by requiring states to make reasonable efforts to place children and include both relatives caring for
siblings together when they must be removed from their parents’ home, children following a formal determination by the
provided it is in the children’s best interests. In the case of siblings not court and the child protective service agency, and
placed together, states must make reasonable efforts to provide for relatives providing care without the involvement
frequent visitation or other ongoing interaction. of child welfare.
3. Glaze and Maruschak, 2008.
Excerpted from Fostering Connections to Success and Increasing Adoptions Act Summary, Center
4. U.S. Department of Health and Human
for Law and Social Policy. (Reprinted with permission.)
Services, Administration for Children and
kinship navigator programs to system with the community sup- Families. Adoption and Foster Care Analysis
assist kinship caregivers with ports and services they need. and Reporting System (AFCARS) Preliminary
FY 2006 Estimates as of January 2008.
service referral and support.17 Establish policies and fund pro-
<www.acf.hhs.gov/programs/cb/stats_research/
 As of 2008, school enrollment grams that permit kinship care afcars/tar/report14.htm>
laws have been enacted in 30 agencies to serve families that are 5. Macomber, Jennifer Ehrle, Rob Geen, and
states that allow kinship not in the child welfare system. Regan Main. Kinship Foster Care: Custody,
Hardships, and Services. Washington, DC:
caregivers to enroll a child in 4. Adopt model policies and prac- Urban Institute, 2003. <www.urban.org/
school. 18 tices concerning notification of url.cfm?ID=310893>
relatives when a child enters foster 6. Ehrle, Jennifer and Rob Geen. “Kin and Non-
Recommendations care to assist with implementation. kin Foster Care: Findings from a National
Survey.” Children and Youth Services Review
1. Ensure adequate funding and 24(1–2), 2002, 15–35.
effective implementation of the 5. Reevaluate arbitrary age limits
7. Ehrle, Jennifer, Rob Geen, and Rebecca
initiatives included in the placed on potential kinship
Clark. “Children Cared for by Relatives: Who
Fostering Connections to Success caregivers; make case-by-case Are They and How Are They Faring?” New
law (see box above) and provide determinations and reconsider Federalism: National Survey of America’s
assistance to grantees to implement restrictions based on age alone. Families., Washington, DC: The Urban Institute,
2001, B-28. <www.urban.org/UploadedPDF/
promising or evidence-based 6. Identify and expand housing anf_b28.pdf>
programs. opportunities for relative caregivers 8. Casey Family Programs. Kinship Care.
and their children, especially for Seattle: Casey Family Programs, 2008.
2. Identify promising examples of <www.casey.org/Resources/Publications/
kinship navigator programs and senior caregivers who may live in
WhitePapers/WhitePaper_KinshipCare.htm>
disseminate this information to the senior public housing that does not 9. Finney Hairston, Creasie. Kinship Care When
field. permit children to live on the Parents are Incarcerated: What We Know, What
premises. We Can Do. Baltimore: Annie E. Casey
3. Develop and implement mecha- Foundation, 2009. <www.aecf.org/~/media/
nisms and effective practices for 7. Implement a dissemination Pubs/Topics/Child%20Welfare%20Permanence/
connecting relative caregivers who strategy to reach various caregivers Foster%20Care/ KinshipCareWhenParentsAre
are not involved in the child welfare and provide information about (Continued on page 32)

28 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
JUVENILE JUSTICE UPDATE

Tools for Preventing Youth Violence

T here are a dizzying number of youth violence prevention
programs. Knowing which ones work can be a challenge. At a
recent teleconference, Preventing Youth Violence in Communities,
 Olweus Bullying Prevention
Program (BPP)—school-based
program that works to reduce
bullying and improve peer
hosted by the Chapin Hall Center for Children on February 24, relationships among school
children.
2011, youth violence experts shared the following resources to
 Promoting Alternative
help make sense of what works—based on science—in preventing
THinking Strategies (PATHS)—
youth violence. program designed to help at-risk
and special needs students
Blueprints for Violence treat at-risk youth and their develop social and emotional
Prevention families in a variety of contexts. skills to successfully manage
www.colorado.edu/cspv/  Life Skills Training (LST)— their feelings, relationships, and
blueprints/ adolescent substance abuse work.
The University of Colorado’s prevention program that targets  The Incredible Years: Parent,
Center for the Study and Prevention social and psychological factors Teacher and Child Training
of Violence began the Blueprints that promote substance use and Series (IYS)—program that
for Violence Prevention project to other risky behaviors by youth. reduces children’s aggression and
identify programs that are proven to
work. Blueprints has systematically
reviewed over 900 violence and  Homicide is the second leading cause of death among youth.
drug prevention programs. By
 Minority youth are disproportionately affected by homicide
applying a rigorous experimental
deaths. Among black youth, homicide is the leading cause of death.
design, it determines if a program
meets criteria showing effectiveness  For every youth homicide, 98 youth are treated medically for
in reducing violence, delinquency, nonfatal injuries.
substance abuse, or other violence-  $7.7 billion is lost per year due to medical costs of youth
related risk factors for at least one homicide (does not include such costs as treating victims’ families).
year. —Statistics cited by Tom Simon, PhD, Centers for Disease Control
Among the 900 plus programs
studied to date, 11 were identified
as “model,” which means they have
a high level of evidence showing  Multisystemic Therapy behavior problems and increases
their effectiveness and have been (MST)—intensive family/commu- social competence at home and at
replicated successfully in other nity-based treatment program school.
communities. These 11 programs focusing on chronic and violent  Project Towards No Drug
are: juvenile offenders. Abuse (Project TND)—drug
 Midwestern Prevention Project  Nurse-Family Partnership abuse prevention program target-
(MPP)—comprehensive, commu- (NFP)—provides maternal and ing at-risk high school-aged
nity-based adolescent drug abuse early childhood support to youth.
prevention program. vulnerable, first-time parents to Nineteen programs were
 Big Brothers Big Sisters of promote healthy futures. deemed “promising,” which means
America (BBBS)—community  Multidimensional Treatment they have demonstrated good results
and school-based mentoring Foster Care (MTFC)—cost- but still need to be replicated in their
program for at-risk children and effective alternative to regular communities, or need more time to
youth. foster care, group or residential demonstrate effectiveness.
 Functional Family Therapy treatment, and incarceration for The 30 Blueprints programs
(FFT)—family-based prevention youth who have problems with span many areas—school-based
and intervention program used to chronic disruptive behavior. supports, mentoring, treatment of

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 29
high-risk youth, supports for par- violence prevention program.  Columbia University Center
ents, treatment for mental health for Youth Violence Prevention
disorders, bullying prevention, an- UNITY—Urban Networks www.cdc.gov/
ger management, among others. Increasing Thriving Youth violenceprevention/ACE/centers/
View these programs and descrip- www.preventioninstitute.org/unity Columbia_University.html
tions at the web site above. UNITY works with representatives  Harvard Youth Violence
from 13 of the largest U.S. cities to Prevention Center
Centers for Disease Control implement research-based, sustain- www.hsph.harvard.edu/hyvpc/
and Injury Prevention (CDC) able youth violence prevention
National Center for Injury efforts. It focuses on school-based  Johns Hopkins University
violence, gang-related violence, Center for the Prevention
Prevention and Control:
and street/neighborhood violence. It of Youth Violence
Violence Prevention www.jhsph.edu/
fosters public-private partnerships
www.cdc.gov/ViolencePrevention/ preventyouthviolence
and supports local planning and
index.html
implementation through training  MeHarry Medical College,
The CDC has studied youth violence and capacity-building efforts. Nashville Urban Partnership
as a public health issue since the The Unity Roadmap outlines Academic Center of Excellence
early 1980s. The CDC’s National nine components of an effective ur- http://nupace.mmc.edu/
Center for Injury Prevention and ban violence prevention program index.html
Control has five strategic areas for organized around three main
youth violence prevention: themes—partnerships, prevention,  University of California,
 monitoring and researching the
and strategy. These components are Berkeley, Center on Culture,
problem, based on a review of effective city Immigration, and Youth
 developing and evaluating
prevention efforts, a literature re- Violence Prevention (Oakland)
prevention strategies, view, and expert interviews. www.yvpcenter.org/
 supporting and enhancing
 University of California,
prevention programs, Academic Centers of
Riverside—Southern California
 providing prevention resources, Excellence on Youth Violence Academic Center of Excellence
and Prevention on Youth Violence Prevention
 encouraging research and The CDC funds several Academic http://stopyouthviolence.ucr.edu/
development. Centers of Excellence (ACEs)
throughout the country. These  University of Hawaii, Asian/
The CDC pursues work in these Pacific Islander Youth
centers involve partnerships be-
areas through several initiatives, Violence Prevention Center
tween a local community, research
including: http://apiyvpc.org/Default.asp
universities, and community-based
organizations to combat youth  University of Chicago,
STRYVE—Striving to Reduce
violence at the local level. ACEs Chicago Center for Youth
Youth Violence Everywhere study youth violence in the commu- Violence Prevention
www.safeyouth.gov/Pages/ nity and then plan, implement, and http://ccyvp.chapinhall.org/
Home.aspx evaluate violence prevention
STRYVE works to identify and approaches. ACEs support  Virginia Commonwealth
support approaches that reduce multidisciplinary collaborations that University Clark-Hill
youth violence and guide communi- integrate science and prevention. Institute for Positive Youth
ties’ efforts to implement evidence- Some ACEs focus on a specific Development
based violence prevention aspect of youth violence, like www.clarkhill.vcu.edu/
approaches. gangs, while others take a broader
The work of the Blueprints pro-
STRYVE Online offers how-to in- approach. Specific populations may
gram and the CDC to identify youth
formation to help local communities also be a focus, such as Latino or
violence prevention programs and
plan, implement, and evaluate Asian/Pacific Islander youth.
approaches that work based on rig-
youth violence prevention programs. In the last 5-6 years, the CDC
orous scientific review is invaluable
It provides access to the latest evi- has funded the following ACEs:
to advocates trying to make sense
dence-based tools, training opportu-  Philadelphia Collaborative
of the many available programs.
nities, and online “community Violence Prevention Center
workspaces” that assist communities http://phillyviolenceprevention. —Claire Chiamulera
with each stage of implementing a org/ CLP Editor

30 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 2
ETHICAL DILEMMAS

Ethical Consideration: Model Rule 1.7 Conflict of Interest
will be able to provide

A baby is born cocaine exposed and is removed from the
mother at the hospital. The baby, now three months old,
has minor medical issues related to her cocaine exposure. The
competent and diligent
representation to each
affected client;
mother, who is 25, has two other children, 11 and 13 years old, (2) the representation is not
prohibited by law;
placed temporarily with the maternal grandmother. The baby’s
father has a substance abuse problem as well and is not in (3) the representation does not
involve the assertion of a
treatment. Although the maternal grandmother has been able to claim by one client against
care for the older siblings, she did not pass a home study for another client represented
placement of the baby due to concerns about her ability to by the lawyer in the same
handle the baby’s special medical needs and that she would not litigation or other proceed-
likely become a permanent placement for the baby due to her ing before a tribunal; and
age (68). The baby is placed in foster care since no other rela- (4) each affected client gives
tives are able and willing to care for her. Mom is requesting that informed consent, con-
the baby be placed with her in a residential treatment facility. firmed in writing.
To determine whether a conflict
You represent all of the children. The older children have
exists, you can ask the following
clearly expressed a strong interest in having their baby sibling questions: 1
placed with them; however, you have determined the baby’s
 Does representing one client
short- and long-term interests are best served by remaining in foreclose alternatives for the
foster care until the mother makes some progress in drug treat- other?
ment and the baby can be placed back in her care.  Will confidential information from
one client be compromised in
representing the other(s)?
Attorneys must be loyal to their that the representation of  Can the attorney comply with
clients, use independent judgment, one or more clients will be duties owed to each client, includ-
maintain client confidences, and materially limited by the ing the duty to pursue the client’s
zealously pursue the client’s objec- lawyer’s responsibilities to position?
tives. The Model Rules prohibit another client, a former  Will the client “reasonably fear”
lawyers from representing multiple client or a third person or that the attorney will pursue her
clients when representing one will by a personal interest of the case less effectively because the
compromise the duties owed to the lawyer. attorney is deferring to the other
other(s). This is considered a con- However, the analysis does not client?
flict. Model Rule of Professional end with the mere presence of a  Can the lawyer ask for consent?
Conduct 1.7 states that: conflict. MR 1.7 addresses situa-
The scenario here presents a
tions in which pursuing one client’s
(a) Except as provided in conflict. As the child’s attorney, you
objectives prohibits the lawyer from
paragraph (b), a lawyer shall cannot possibly zealously advocate
pursuing another client’s interests.
not represent a client if the for the siblings to be placed together
Part (b) of the rule explains:
representation involves a (older children’s position) while also
concurrent conflict of interest. A advocating for the baby to remain in
(b) Notwithstanding the existence
concurrent conflict of interest a foster home. How would you pro-
of a concurrent conflict of
exists if: ceed now that a legitimate conflict of
interest under paragraph (a), a
interest exists?
(1) the representation of one lawyer may represent a client
In this case, because your older
client will be directly if:
clients and baby client have different
adverse to another client; or (1) the lawyer reasonably positions, it would not be reasonable
(2) there is a significant risk believes that the lawyer to believe that you could provide

Vol. 30 No. 2 ecuring ABA Child Law Practice —www.childlawpractice.org 31
competent and diligent representa- one attorney for all children may ac- Jennifer L. Renne, JD, is director of
tion to all clients. Thus, you have tually serve the goal of sibling con- the National Child Welfare Resource
two choices: (1) withdraw from rep- tact and family connection for both Center on Legal and Judicial Issues
resentation of either the older two the baby and the older siblings. at the ABA Center on Children and
children or the baby, or (2) with- the Law.
draw from representing all children. Source
1
Renne, Jennifer L. Legal Ethics in Child This ethics scenario was adapted from: Practice
Although continuity of representa-
Welfare Cases. Washington, DC: ABA Center & Policy Brief: Advocating for Very Young
tion is important for a baby, in this Children in Dependency Proceedings: The
on Children and the Law, 2004.
case your best approach is to with- Hallmarks of Effective, Ethical Representation,
draw from representing the baby Candice L. Maze, JD, is president of October 2010, by Candice L. Maze, JD,
and continue to represent the older available at http://www.americanbar.org/groups/
Maze Consulting, Inc. in Miami, FL.
children. If you choose to withdraw child_law/projects_initiatives/health_of_infants_
She has worked for more than a toddlers _preschoolers_iumch.html.
from the older children’s representa- decade in the child welfare arena.
tion and continue to represent the
baby, you may face more ethical is- (Support for Kin, cont’d from p. 28) Barbara Needell. “The Ties that Bind: A
sues. If you represent the baby, you IncarceratedWhatWeKn/10147801_ Cross-sectional Analysis of Siblings in Foster
Kinship_Paper06a%203.pdf> Care.” Journal of Social Service Research
will likely need to disclose confi- 10. Conway, Tiffany and Rutledge Hutson. Is 29(3), 2003, 27–52. See also Fred Wulczyn
dential information provided by the Kinship Care Good for Kids? Washington, and Emily Zimmerman. “Sibling Placements in
older siblings. You may also violate DC: Center for Law and Social Policy, 2007. Longitudinal Perspective.” Children and Youth
your duty of loyalty to the older sib- <www.clasp.org/publications/ Services Review 27(7), 2005, 741–63.
lings, who will very possibly feel is_kinship_care_good.pdf> 15. Casey Family Programs, 2008.
abandoned and confused by your 11. Testa, Mark. “Kinship Care and 16. Generations United. Louisiana Subsidized
Permanency.” Journal of Social Service Guardianship. Washington, DC: Generations
withdrawal from their case. Research 28(1), 2001, 25–43. See also United, 2005; United States Congress. The
What would the ethical consid- Chamberlain, Patricia et al. “Who Disrupts McKinney-Vento Homeless Assistance Act,
erations be, however, if the facts from Placement in Foster and Kinship Care?” P.L. 100-77 (1987). The McKinney-Vento Act
were slightly different and the older Child Abuse and Neglect 30(4), 2006, 409–24. treats children living with relatives who are not
siblings do not have an opinion re- 12. Chapman, Mimi V., Ariana Wall, and their parents as homeless and provides school
garding placement with their baby Richard P. Barth. “Children’s Voices: The supplies and uniforms for the children and
Perceptions of Children in Foster Care.” food for the families.
sibling? Does a conflict of interest American Journal of Orthopsychiatry 74(3), 17. Casey Family Programs, 2008.
exist? No. Under these circum- 2004, 293–304; Benedict, M. I., S. Zuravin, 18. Educational Consent and School
stances, the position of the older and R. Y. S. Stallings. “Adult Functioning of Enrollment Laws: Why They Matter.
siblings and baby are not directly Children versus Nonrelative Family Foster Washington, DC: ABA Center on Children and
adverse and there is no significant Homes.” Child Welfare 75(5), 1996, 529–49. the Law, 2006. <www.abanet.org/child/
13. Rubin, David et al. “Impact of Kinship summarymemo3.pdf> The 30 states are CA,
risk that representing the baby will
Care on Behavioral Well-being for Children in CT, DE, HI, IN, IA, LA, MD, MI, MO, MT,
be materially limited by represent- Out-of-Home Care.” Archives of Pediatrics and NE, NJ, NM, NC, ND, OH, OK, PA, RI, SC,
ing the older sibling. MR 1.7(a)(1- Adolescent Medicine 162(6), 2008, 550–56. SD, TN, TX, UT, VT, VA, WA, WI, and WY.
2). In fact, in this modified scenario, 14. Shlonsky, Aron, Daniel Webster, and <www.ncsl.org/default.aspx?tabid=16371>

American Bar Association Presorted
Center on Children and the Law First Class
740 15th Street, NW, 9th Floor U.S. Postage
Washington, DC 20005-1022 PAID
Permit #163
Annapolis, MD