Kids, Not Cases

I never went to court. I have been in and out of foster care since I was a baby, and I really resent that I never got the chance to speak on my behalf or even be present when my future was being discussed.” This South Dakota foster youth’s experience is all too common. In addition to being excluded from the courts that make life-altering decisions, many children in foster care do not receive the legal representation that the rest of us expect as a fundamental, democratic right.

In Colorado, during 12 years in foster care, 19-year-old Andrew has been in 42 placements. And not once was he present for the numerous court hearings about his case. Despite state statutes requiring that all children with dependency cases have an appointed advocate, an “attorney guardian ad litem” who acts in the child’s best interest, Andrew has met with his only a couple of times, and they have never had what he considers a meaningful, private conversation.

Access to court and legal representation for children who have been abused or neglected can vary from case to case and even from proceeding to proceeding. Both the decision-making process and the results for children can stray far from legislative intent, often without legislators even knowing it. The courts, the ultimate decision makers in these cases, are far removed from legislative scrutiny.

Instead of playing the blame game that seems to dominate child welfare discussions, a growing number of legislators are determined to forge a new, more informed and productive dialogue with the courts. And that includes shining a light on court performance.

Kids in Court
Although executive branch child welfare agencies are more often in the public and legislative limelight, the courts have a powerful role in the lives of children who have been abused or neglected.

“Once you are in the system, your life is in their hands, not yours,” says a former foster child from California. Courts decide whether children are removed from their homes and families, how long they remain in the system, and what education and health care services they receive. Only the courts sanction foster care, terminate parental rights and grant adoptions.

Historically, children have been barred from the courtroom because of the belief that it was inappropriate and unhealthy for the young to hear bad things about their parents. Many young people in foster care see it differently. They want a choice. These youths report that by the time they enter foster care, they’ve already experienced trauma. Court participation helps them gain a realistic view of their family and a sense of control—both important for getting on with their lives.

In a 2006 California survey, youths in foster care who attended court reported real benefits. Some were able to take an active role in decisions about their lives, while others found it helpful to simply be present and see how the decisions were made. Young people and their legal advocates believe that better decisions result when the judge can interact with children face-to-face instead of only reading a case file. The judge can observe the child’s appearance and interaction with others, hear firsthand the child’s hopes and opinions, and see that the child is getting older and needs a permanent family. One lonely child in foster care was unable to convince her case worker, foster parents or guardian ad litem that she desperately needed to see her sister at least once a week—despite busy schedules and conflicting demands on the adults’ time. When she presented her case directly to the judge, a visitation arrangement that met her needs was accomplished.

A Kinder, Gentler Court 
In some states, legislators have required courts to notify young people about hearings and to consider whether their presence is appropriate. Minnesota and California lawmakers make participation in court proceedings a right. Recent federal legislation supports this approach. It makes court and agency consultation with children a requirement for states to receive Title IV-E foster care funding.

At the same time, foster youths and their advocates are not saying that it should be business as usual in the courtroom. Los Angeles County, home to 36,000 children in foster care, allows all children over 4 years of age to attend court. According to Leslie Heimov of the Children’s Law Center of Los Angeles, children need support from a caring adult before, during and after the proceeding. They also need special kid-friendly waiting areas, opportunity for private discussions with the judges, and plain talk instead of legal jargon.

Many lawmakers are surprised when they learn that vulnerable children in their state do not receive adequate legal representation and are not given the opportunity to speak directly to judges. After all, every state has enacted statutes requiring appointment of an advocate to obtain firsthand understanding of the child’s situation and to make recommendations to the court. Thirty-five states require an attorney to represent the child. But rarely do either statutes or court rules define the attorney’s role, specify duties and responsibilities, or describe the necessary training. And there are few mechanisms for legislators to monitor the workings of the judicial and legal aspects of the child welfare system.

Lawyers and Courts
All too often, capable lawyers find little incentive to represent abused and neglected children or their parents. Attorneys object that they are not appointed in time to prepare a case or allocated the necessary time, resources and compensation to perform even the most basic legal services. In New York City, poor compensation accompanied by higher caseloads and court backlogs led to an exodus of attorneys. In turn, families were disrupted, and children remained longer in foster care.

In addition to numerous caseloads and low pay, lack of specialized training and performance standards for both attorneys and judges plague the judicial process. Not only are procedures for handling dependency cases unique, but they require skilled professionals who understand the complex dynamics of troubled families and the maze of resources and rules for responding to them. Only half of the 2,000 judges participating in a 2004 survey had received child welfare training before hearing child abuse and neglect cases.

Legislative Oversight
Ensuring that children’s voices are heard in court is but one example of the need for greater oversight over courts and the critical decisions they make. Federal and state statutes make courts responsible for overseeing the actions of child welfare agencies in individual cases, but who oversees the courts? Although legislation and investment in the judicial system are necessary, some legislators are beginning to think they are not enough. With the public’s eyes and ears on state government, legislators feel a responsibility to monitor court performance and its impact on children and parents.

This summer, NCSL took the unusual step of convening a group of lawmakers, judicial leaders and child welfare agency executives to examine how legislators can help strengthen the courts on behalf of vulnerable children. These leaders quickly cut to the heart of their dilemma: the risk that vulnerable children are caught in the middle of the constitutional separation of powers among the three branches of government.

To ensure an independent judiciary, courts traditionally resist legislative oversight. A Minnesota judge worried that legislators would attempt to manage the judiciary. Privately, judges admit their fear that legislators will try to influence the cases of individual constituents.

“We hold the public purse strings and are responsible for some oversight of how it’s spent,” says Washington Representative Ruth Kagi, chair of the House Early Learning and Children’s Services Committee and member of the Appropriations Committee. Fellow Washington Representative and Human Services Committee Chair Mary Lou Dickerson agrees: “The Legislature funds state agencies and expects them to be accountable. The courts need to be accountable for taxpayers’ money, too.”

Sitting Down Together
Consensus among legislators was that it’s up to them to improve communication and understanding as well as accountability. According to Fernando Macias, a former New Mexico legislator who now serves as a district Children’s Court judge, “It isn’t one branch of government ignoring another, but there is no transition.” Texas Representative Harold Dutton, chair of the House Juvenile Justice and Family Issues Committee, agrees: “Judges don’t feel included in the development of legislation, but legislators don’t hear from judges upfront.”

To receive new federal Court Improvement Grants authorized in 2005, state courts have developed multidisciplinary commissions, and they are ready-made vehicles for legislators to hear the judicial perspective. In some states, legislators themselves have created court commissions or other workgroups, and they serve on these bodies in Arkansas, California, New York, North Dakota, Utah, Vermont and Washington.

“It’s a continuing process of court-legislative education—not just during session,” says Arkansas Judge Joyce Williams Warren.

Lives Behind the Numbers
Legislators now have better tools for monitoring court performance. National judicial and legal organizations have joined together to develop performance standards for courts that handle child dependency cases. State courts are taking advantage of federal court improvement grants to ramp up data collection and analysis, so more courts are able to provide statistics about the cases they hear, how they are handled, and how they progress.

But legislators worry that courts will game their numbers, and Judge Macias, the former New Mexico legislator, says that caution is justified. “Everybody—the court, child welfare agencies, even the legislature—paints the most positive picture possible,” he says.Instead of disregarding data, judicial expert Mark Hardin of the National Child Welfare Resource Center on Legal and Judicial Issues warns legislators, “Be careful when using statistics in connection with requests for funding or for the expansion or termination of programs.” Hardin advises policymakers to ask impartial resource people to help them interpret court numbers.

New Mexico Representative Jim Trujillo speaks for other legislators who want to see beyond the numbers to ensure that individual children and families are getting fair treatment, “I’m worried about the quality, not just numbers.” Experts suggest a method called quality service reviews to scrutinize performance of the child welfare system—agencies and courts alike. Independent reviewers randomly select a few cases to examine in depth, dig beyond case files to interview key parties (children, parents, teachers or others who know the family, case workers, attorneys, foster parents, court appointed special advocates and others), and carefully analyze actions. Findings can help identify and correct problems that affect both individuals’ lives and child welfare system performance.

Holding Courts Accountable
Some legislatures have gone beyond shining a public light on the courts to make them more accountable. The Oregon legislature has directly imposed court performance measures and requires the judiciary to report on them. In both Idaho and Oregon, the legislature refuses to approve the judicial budget unless courts meet statutory guidelines.

Judge Nancy Sidote Salyers retired from the Cook County, Ill., bench where she was presiding judge of the Child Protection Division. At a time when foster care caseloads were growing unchecked, she worked with the state child welfare agency to reduce the court’s dependency caseload from more than 58,000 to 19,000 and to quadruple the number of permanent homes secured for children.                        She says the key to better performance for kids is getting beyond separation of power. “Incentives and outcome-based legislation can be tied to a shared vision when the powers come together.”

Judge Salyers invokes the words of Andy Warhol—words that many youth in foster would no doubt find true: “They say that time changes things, but you actually have to change them yourself.”

Representing Parents
Parents also face serious court obstacles that ultimately delay safe and permanent homes for their children—barriers that lawmakers often assume legislation has eliminated. Although 39 states require counsel for parents at some point during a child abuse and neglect case, representation is often too little and too late.

One parent described an experience that is not unusual: “When I arrived at court that morning, I was told this is my lawyer. My lawyer sat down with me for five minutes, asked me a couple of things, and told me to admit to drug addiction. I wasn’t told the procedure of court. I didn’t have any idea what was happening, and I was very much afraid, because the most important thing in my life had just been lost.”

Many parents—especially absent fathers—aren’t engaged until parental rights are being terminated. Parents’ absence robs the court of the opportunity to correct case information that is all too often inaccurate, to give instructions and explain orders, and to have a direct impact on parents’ behavior. In Washington, a cost study requested by the Legislature showed that family reunification rates improved after appropriations for legal representation of parents increased.