Representing young children in dependency

proceedingsJill Malat

Office of Civil Legal AidChildren’s Representation Program

Section 1.1(7) If the child is preverbal or unable to communicate a stated interest, the determination of the child’s legal interests should be based on the laws that are related to the purposes of the proceedings, the child’s specific needs and preferences, the goal of expeditious resolution of the case so the child can remain or return home or be placed in a safe, nurturing, and permanent environment, and the use of the least restrictive or detrimental alternatives available.

Meaningful Representation

You are not a mandatory reporter You can and should work closely with the

CASA/GAL Your job is not to make a determination

regarding what is in this child’s best interest

You are not a GAL

The obligation of the CASA is to independently investigate the circumstances of the children and to formulate recommendations to the court.

CASA/GAL

Lawyer is to advocate for stated interest of client

Protect Legal Rights of Client Spot legal issues—always apply law to facts Attorney cannot be a witness

Role of Attorney in WA State

To be reasonably protected from harm To receive care, treatment and services

consistent with competent professional judgment

To not be placed in danger To be free from unreasonable and

unnecessary intrusions upon their physical and emotional well-being

Legal Rights of Foster Children

To be provided with adequate food, shelter, clothing and medical care

Not to be placed in a foster care setting known to be unsafe

To be reasonably safe, the State, as custodian and caretaker of foster children must provide conditions free of unreasonable risk of danger, harm, or pain, and must include adequate services to meet the basic needs of the child

Legal Rights Continued

The determination of the child’s legal interests should be based on objective criteria as set forth in the laws related to the purpose of the proceedings

Criteria should address the child’s specific needs and preferences

The goal of expeditious resolution of the case

So the child can be placed in a safe, nurturing and permanent environment

Determining the very young child’s interests

The child’s developmental level, including his or her sense of time, is relevant to an assessment of need.

For example, a very young child may be less able to tolerate separation from a primary caregiver than an older child

Unique needs of very young children

Be familiar with◦ The relevant RPCs◦ Meaningful Legal Representation for Children and

Youth in Washington’s Child Welfare System: Standards of Practice, Voluntary Training, and Caseload Limits

◦ ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings

Some guidelines

RCW 13.34 and other state laws WACs Local and State Juvenile Court Rules, Civil

Rules, Rules of Evidence Case law DSHS Policies and Procedures ICWA

Also be familiar with

Child development Court skills—including motions practice,

direct and cross of a witness Structure and functions of DSHS staff and

staffing Cultural competence

Recommended training topics

Very young children who enter the child welfare system are disproportionately children of color.

Although African American children make up only 15% of the U.S. population of children, they represent approximately 37% of the children in the system

Lawyers can ensure the placement is culturally familiar to the child—foods, languages, customs observed

Disproportionality in the child welfare system

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

RPC 1.1 Competence

A lawyer shall abide by a client’s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as is impliedly authorized to carry out the representation.

RPC 1.2 Scope of Representation and authority

A lawyer shall act with reasonable diligence and promptness in representing a client

RPC 1.3 Diligence

(a) A lawyer shall;◦ (1)Promptly inform the client of any decision or

circumstances with respect to which the client’s informed consent…is required

◦ (2)Reasonably consult with the client about the means by which the client’s objectives are to be accomplished

◦ (3)Keep the client reasonably informed about the status of the matter;

◦ (4)Promptly comply with reasonable requests for information; and

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation

RPC 1.4 Communication

(a)A lawyer shall not reveal information relating to the representation of a client…

(b)A lawyer to the extent the lawyer reasonably believes necessary;

(1)Shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm

RPC 1.6 Confidentiality of Information

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority…the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with client.

RPC 1.14 Client with Diminished Capacity

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:◦ (1) the testimony relates to an uncontested issue;◦ (2) the testimony relates to the nature and value

of legal services rendered in the case.

3.7 Lawyer as Witness

The child’s cognitive ability; Emotional and mental development, and

stability; Ability to communicate; Ability to understand consequences; Strengths of wishes; and Opinions of others

What attorney should consider

Child-centered Research-informed Permanency-driven Attorneys must see the world through the

child’s eyes and formulate their approach from that perspective

Advocacy for young children should be

Time is of the essence for any child, especially an infant or toddler!

Therefore, permanency should be a priority from day one and should guide advocacy

One year for a one year old is a lifetime

To see the world through the eyes of the child learn the child’s history;◦ What kind of prenatal care did the mother receive◦ What kind of early medical and dental care has

the child received◦ Review child’s health history◦ Has the child received immunizations and

required health screenings◦ What kind of relationship does child have with

caregivers◦ What are familiar comforting items in the child’s

life—toys, blanket, books, clothing item

Child centered advocacy

Abuse, neglect, and removal from primary caregivers profoundly affect the growth and development of very young child

Traumas, and losses impact critical early brain development

Research underscores the importance of parenting and regular, consistent care giving to a child’s overall healthy growth and development

Early Childhood development

Lawyers must be aware of and able to assess the quality of the very young child’s relationship with caregivers and use the legal process to support and create nurturing and healthy attachments

Because children under three years old, do not function independently, but in relationship to others, the quality of their relationships with biological and substitute caregivers largely determines their physical, social/emotional, and cognitive development processes

How a lawyer can help mitigate early trauma

Be familiar with typical child development milestones

Interact with child in an age appropriate manner

How do you interact with young children

Many one year olds are standing alone and starting to walk. Should be walking by 18 months

How to interact with child◦ Sit on the ground and pass a ball back and forth◦ Read a touch-and-feel book. Read a book about

animals and make the sounds of the animals—see if child wants to try

◦ Play with noisy, colorful moving objects or toys

12-18 months

Learning to run. Can imitate activities and are able to speak some words. As they approach 24 months, they can take a piece of clothing off and on, are learning how to jump, and are starting to combine words.

How to interact with child◦ Dance to music◦ Sing songs using instruments◦ Read books that have pictures of words that child

may know (ball, dog, cat)◦ Play outside

18-24 months

By three child can typically speak or say words in an understandable manner and can name a friend. Can balance on one foot

How to interact with child◦ Play at park with toddler sized equipment◦ Bring crayons and paper to color together◦ Read a short, basic book (Goodnight Moon, the

three little pigs, goldilocks and the three bears)◦ Play music together and march and clap◦ Ask the child to sing you a song◦ Engage in dramatic play (pretending to cook or take

care of a baby)

Two-three years old

Look for signs of wellness through observation

Unusual fussiness Ensure Child has all important

belongings(security blanket, toys, medications)

Check medical records for any currently untreated conditions

Interview should provide a sense of how secure the child feels

Interacting with pre-verbal children

By four can name four colors, hop on one foot, and copy a “+” symbol. Talking will be more conversational

How to interact with child◦ Ask the child to tell you about a favorite toy◦ Color together and ask her to tell you about

picture◦ Do a simple large-pieced puzzle together

Three-Four year olds

By five can draw a person with a head, body, arms and legs, lace a shoe, and walk on tiptoes. If attending preschool will be learning to identify their letters and to count to 10 or higher

How to interact with child◦ Play Simon says◦ Ask her to draw a picture of herself◦ Do a 20 piece puzzle together◦ Read an I Spy book◦ Go on nature walk and collect small rocks and leaves

in a bag

Four- Five Years old

Video tape interview Conduct interview yourself Control setting Harborview Center on Sexual Assault—Child

Interview Guide Assess competency—ask about events

known to you Separate episodes Ask questions state did not ask child

Child interview

Ensure child received health screen—including mental health and developmental screen

Ensure child has been properly immunized and on an ongoing basis

Ensure the child receives appropriate dental services

Ensure placement for very young children promote long-term stability and healthy attachments

Physical, social-emotional and developmental health

Brain is rapidly developing A healthy, secure, and safe environment is

essential Has the potential to moderate the impact of

early trauma and neglect Loving care-giver and high quality child care

can help “rewire” the baby’s brain This will allow her to trust and learn, form

healthy relationships, and moderate her impulses throughout her development

For very young children

Observe the physical environment to ensure it supports the child’s healthy development, is safe and age appropriate

Is culturally familiar to child There are developmentally appropriate

books and toys Child has safe place to sleep, eat and play Child has weather-appropriate clothing

Go to the placement

ABA standards instructs attorneys to ensure children are present at hearings regardless of whether they will testify

Child’s presence underscores for the judge that the child is a real party in interest in the case

Even a child who is too young to sit through a hearing may benefit from seeing the courtroom and meeting, or at least seeing, the judge who will be making the decisions

Unless there is evidence that the child does not want to attend or a professional confirms child will be traumatized by attending, child should be brought to and supervised at hearing

Child at hearing

Attorneys for very young children must understand early child development and how child abuse and neglect can derail healthy physical, social/emotional, and cognitive development

impact of maltreatment on very young child’s development

The Adverse Childhood Experiences (ACE) Study is one of the largest investigations ever conducted to assess

associations between childhood maltreatment and later-life health and well-being.

The study is a collaboration between the Centers for Disease Control and Prevention and Kaiser Permanente's Health Appraisal Clinic in San Diego.

The ACE Study findings suggest that certain experiences are major risk factors for the leading causes of illness and death as well as poor quality of life in the United States.

It is critical to understand how some of the worst health and social problems in our nation can arise as a consequence of adverse childhood experiences. Realizing these connections is likely to improve efforts towards prevention and recovery.

ACE Study

http://www.cdc.gov/violenceprevention/acestudy/

Learn More about ACE Study

Attorneys for very young children should ensure their clients are screened for developmental delays and linked to a service or treatment while in care

Know your community’s services for children aged 0-5

Child Abuse Prevention and Treatment Act Individuals with Disabilities and Education Act Both are Federal Laws CAPTA requires that states refer children

under age three who have a substantiated case of child abuse or neglect for screening for early intervention services (funded by Part C of IDEA)

This Federal grant program helps states implement a comprehensive system for early intervention referrals and services

CAPTA/IDEA

In making decisions about the representation, am I making the best effort to see the case from the client’s subjective point of view, rather than exclusively from an adult’s point of view?

Does the child understand as much as I can explain about what is happening in the case?

If my client were an adult, would I be taking the same actions, making the same decisions, and treating her in the same way?

Seven questions to keep us honest

If I decide to treat my client differently from the way I would treat an adult in the same situation, in what ways will my client concretely benefit from that deviation? Is that benefit one which I can explain to my client?

Is it possible that I am making decisions for the gratification of the adults in the case, and not for the child?

Is it possible that I am making decisions in the case for my own gratification and not for that of my client

Does the representation, seen as a whole, reflect what is unique and idiosyncratically characteristic of this child?

Questions continued

It is important to search for potential relative placements when the case begins and regularly as new information becomes available

Permanency for very young children should be revisited monthly, either in court or by FTDM

Permanency should not be driven by the court process, but by the child’s needs

Permanency/Placement

A baby’s social-emotional development—attachment to primary caregiver is affected by removal from his parent and multiple placements while in care

Research shows that young children, even newborns and infants, experience long-lasting sadness, grief, loss and rejection

Separations occurring between six months and app. Three years are even more likely to cause later emotional disturbances

Change of Placement

Moving a baby from an extended foster placement to relatives who are not identified until later in the case process can harm baby

Advocacy to change a baby’s or toddler’s placement must involve assessing the child’s primary attachments with their present caregiver and the short-and long-term impact of another early loss. These decisions must be made case-by-case and should be informed by professionals involved with the child

If the baby or young child does not know the new caregiver, there should be a visitation period in which the foster parent and new caregiver are both present

New caregivers should be prepared by the caseworker for some resistance or distress by the child at visits as well as when first moved to their home

The new caregiver, along with the case manager, should meet or speak to the former caregivers before the first visit to discuss the child’s needs, habits, behaviors etc

Attorneys should ensure that, when safe and appropriate, the former caregivers will remain a resource for the child and the new caregiver

The Fostering Connections Act gives priority to placing siblings together

In some cases, older siblings may have been the de facto caregivers for the baby while the mother or father was working or using drugs

Often older siblings protect younger siblings when DV is present in a family

Siblings play together, teach each other, and are often the only familial and cultural connection that a baby has once she is removed and placed in foster care

siblings

When a baby’s parents’ rights are terminated and he is adopted, ongoing connections with his family of origin must be considered

When there are healthy and positive connections with biological family adoptive parents should be encouraged to maintain some form of connection, even if minimal

Post permanency