CWLS

Adoptive Couple c. Baby Girl

"Active efforts" of ICWA only applies in cases where an Indian family's break up would be precipitated by the termination of parent's rights and doe snot apply to a parent who had never had custody of the Indian child. ICWA placement preferences do not bar adoption by non-Indian family when no other eligible candidates

Agency Attorney Responsibilities - Ensuring Agency meets legal mandates

"Business of agency" - budget, timelines, fed laws Fed & state law mandates and considerations: in some jdx, agency atty has to draft ct orders for ct signature, provide to parties, language for fed funding must be incl. Ct orders: make sure ct makes certain orders, expain consequences of not following orders

Delinquency & Dependency

"Dual status" or "dually adjudicated" Deliquency - crime for adults Status - only offense bc of age - truancy, underage drinking, curfew violations delinquency focuses on child, dependency on parents and having a CW case can be mitigating factor for delinquency Some states have the same judge for both which can lead to better collaboration and fuller picture of issues

Constitutional right to family integrity

"care, custody, and control of their children" lie with parents; parental fitness is lynchpin and hearing on fitness is essential. Presumption that fit parent acts in children's BI

Child Abuse Prevention and Treatment Act (CAPTA)

**Sets the floor for what states must to do get funding - fed programs for research on child abuse and programs, incl: advisory board and clearing house - mechanism for states and tribes to access fed dollars to respond to maltreatment

Right to Counsel in Dependency

- CAPTA requires a representative but it doesn't have to be an attorney - Gault right to counsel doesn't apply to children in dependency

How to begin interview

- Encourage kid to say they don't know or don't understand; test a kid (get a kid to say if what you say is wrong, like shirt color) - ignorant interviewer - "I don't know what happened" - ask for promise to tell the truth

Federal Aid Programs

- SNAP - WIC: Special supplement nutrition program for women, infances, children - child nutrition program - child care & development block grant - head start (low income preschool) - Section 8 (housing)

CAPTA - Requirements

- States & tribes must provide a plan for: 1. mandated reporting 2. responding to reports w/ methods that distinguish between valid and invalid reports 3. taking action that is appropriate to the level of risk in valid reports - Requires GAL when legal proceedings are necessary to protect child. Must represent child's BI but doesn't have to

Dependency attorney & education proceedings

- can request ERH - can attend meeting as "person w/ knowledge or special expertise" - can attend disciplin hearing to ensure DP - ensure placement not changed for special ed student w/o manifestation hearing to ensure proper notice

Criteria for termination of parental rights

- court-adjudicated abuse or neglect - court-approved treatment plan has been refused or failed - continued parental incapacity relates directly to child's minimally adequate needs **Older child or child difficult to adopt might not benefit from TPR

Fostering Connections to Success & Increasing Adoptions Act (FCA)

- expanded permanency options - KINGAP (see separate slide) - locating adult relatives - notice to relatives - non-safety licensings issues can be waived, but states decide what is non-safety issue - extending age of FOCA (separate slide) - transition plan - meet w/ youth 90 days before 18th bday, must be personalized - educational stability/school of origin: when child removed from bio parents, child's education to be considered when assessing placement, if can't remain in SOO, immediate enrollment in school. Reimbursements for SOO. - health care: requires states to make plan for health, dental, and mental health care - siblings: "reasonable efforts to place together," unless safety issue, or "frequent visitation or other ongoing interaction" unless against BI - tribal access to IV-E funds - adoption & guardianship incentives

Appeals - Assisting Client

- explain process & timelines, assess goals - factual investigation/legal research: review trial ct file, transcripts, talk to trial atty, review governing law Client counseling: whether or not proceeding, likelihood of success

Counseling the child client

- explain short- and long-term consequences of positions taken - balance of being a mouth-piece for immature and vulnerable children

FCA - KinGAP

- home for 6 consecutive months - state can be reimbursed up to $2K for xpenses - must: conduct background check, document steps as to why return isn't appropriate, why LG in BI, why adoption not pursued, efforts to discuss w/ parents

2014 Preventing Sex Trafficking and Strengthening Families Act (PSTSFA)

- provide birth certificate, ID, medical record, SS card, Driver's License, ID card to MI - 14+ to participate in dev of case plan - adds reasoable & prudent parent standard to normalize experience in FOCA - requires states to dev plans to identify at-risk children w LE, health care providers, and others

Santosky v. Kramer

- recognized that parents in dependency are poor, uneducated, subject to judgments based on class or culutral bias

Measuring change in parents

- should examine change in variables for maltreatment - Evaluations of interactions between parent and child at the outset can provide a baseline and observations form the basis for most compelling insights (more than psych tests). - individual change can also provide insight, such as child's improvement in FC, which can show that parents' interactions w/ the child were affecting development

Expert Testimony - Bases for Opinion

-- First hand knowledge not always reqd opinion can be based on review of records State v. Moyer: not req to actually examine child; expert understood sydrome, knew what to look for, enough to formulate opinion -- Can base opinion on non-admissible evidence as long as info is of the type rsbly rlied on by experts in the field forming opinions or inferences on the subject), hearsay, prior acts of violence toward child, med hx FRE 703: inadmissible evidence used to get opinion can be provided to jury only if probative value outweighs prejudice

AFSA - procedure

-Requires "case review system" by court or admin agency every 6 months and perm plan after 12 months. -Agency must seek TPR if the child has been in FC for 15 of the most recent 22 months, but mere passage of time is insufficient basis for TPR (In re HG - state court) - pays states a bonus for each adoption above the baseline - expanded perm options to LG and APPLA

CHAFFEE

-medicaid for 18-21 y/o in FOCA on 18th bday - assets up to 10K to remain eligible for funding - increased adoption incentive to states to promote permanency

Interviewing - things to be aware of

1. 18 principles (see outline) 2. build common ground and do not rush 3. ensure balance of showing interest but not reacting in a way that will make the child feel judged 4. active listening: body language, repeat key phrases, emphathy (how did that make you feel?) 5. avoid why (accusatory) 6. avoid assumptions 7. encourage questions 8. Avoid "so what you're saying is" or "what I'm hearing is" - can be patronizing

Models for repping children

1. Best Interest 2. Client-driven (advocate for client's wishes) 3. Hybrid (aged, circumstances) **Client's wishes relevant in any model

Repping Children - Child's Wishes

1. Counsel, advise of options and consequences of withes 2. Take client's direction if child has cognitive capacity to engage in reasoned decision-making Jean Koh Peters: Dimmer switch/sliding scale for capability: can participate in some aspects but not all; if case continues child's capacity grows

Repping Children - Identifying advocacy goals - Capacity

1. Determine capacity: no bright-line test; can be diminished capacity, which can be incremental and issue-specificand due to minority or mental impairment NM & WI provide brightline test: "Two Distcint Lawyer Roles" - above a certain age client driven, below BI MR 1.14 (diminished capacity) governs rep in client-driven: "When a lawyer believes that the client has diminished capacity, it at risk of substntial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protection action, incl. consulting w/ indivs or entities that ahave the ability to take action to protect the client and, in approp cases, seek appt of GAL, conservator, or guardian."

While Children Are on the Witness Stand

1. Emotional support - if available, help cope; may answer questions better, more consitent testimony 2. prepping children to testify: lowers stress, increases capacity to answer 3. Scheduling a young child's tesitmony: when they are rested, after nap time, during school hours, not after school (spend day worrying, tired) 4. Leading on direct: start w/ non-leading then more to leading if child in fear, shy, embarraseed, confused, reluctant 5. Testimonial aids: dolls, etc. to help show what happened 6. comfort item (blanket, teddy bear) 7. Recesses during child's testimony, monitor bc child may not ask for it, ct can advise when recess will happen (on cross)

Counseling child clients - initial contact

1. Explain role as attorney - build trust, differentiate role, explain confidentiality (not all states have A-C privilege), don't say "secrets" 2. Good to review background and info available; use time to build rapport; allow child to ask questions

Consequences of maltreatment

1. Gender - boys more likely to externalize, girls to internalize 2. phys abuse increased chance of arrest at minor by 60% 3. severe child maltreatment and organic brain injury associated w/ most violent offenders 4. limbic irritability found in brains of people who have suffered verbal abuse, witnessed DV, or been sexually abused 5. increased physical and psychological health problems - alcohol abuse, drug overdose

Special Challenges for a Child's Lawyer

1. IDing perm needs and protecting important affilitatons: visits, maintain connections to people and activities, many states require 12 y/o consent for adiotion Sibling: fed law req that agency make reasonable efforts to provide sib visits/contact, even when parent objects; ct has latitute; but no right to post- adoption contact Maintaining the child's property, records, social history: help child create a life book w/ important milestones, photos, school papers, projects, etc. LGBTQ clients: atty should comm acceptance, sensitivity, respect, ask orientation; usually harder to place, advocate for protection of rights Advocating for approp closure after term: I/C for child, provide family info if child wishes to maintain contact after reaching adulthood

Six Crucial Questions Driving Safety Considerations

1. Nature & extent of mltmt? type, severity, history, description of events, emotional/physical symptoms 2. CIrcumstances? how long, parental intent, impaired by substances, parent explanation and whether parent acknowledges the maltmt 3. Day-to-Day functioning? capacity for attachment, mood/temperment, intellectual functioning, expression of emotions, behavior, peer relations, school 4. Discipline? methods, concept and purpose, context (is parent impaired?), cultural 5. Overall parenting? knowledge & skill, expectations/empathy, decision-making, protectiveness 6. How does parent manage own life? communication, coping, self-control & problem-solving, home & financial mgmt, employment

Culture - recommendations for practice

1. Prepare (avoid forms, gather cultural information before meeting, try to determine ethnic background, ask people how they identify instead of choosing for them) 2. Build rapport (supportive, watch for subtleties), reaffirm worth and value, try to show genuine interest 3. Give full attention and convey respect 4. Think about how questions are phrased and set guidelines ("Now I'm going to ask about...") 5. language needs (neutral interpreter, preferred langauge)

Treatment for abuse - children

1. Trauma-focused cognitive behavioral therapy (TF-CBT) 3-18 yrs - treatment for PTSD (anxiety, depression, shame, externalized & sexualized behaviors) 2. Child-parent psychotherapy (CPP) 0-6 yrs - attachment based, dyadic therapy w/ child and CT leads to improved parent-child relationship & symptoms (more attachment, security; less anger, avoidance, resistance)

Children's Rights w/in Res Treatment & Hospitals

1. Understand facilities and law 2. Usually use pts/reward system but can't use that to deny contact w/ GAL, atty, or family. Should be transported w/o restraints, wear own clothes, maintain personal items unless clinical determination of safety but not points

Brain architecture

1. built over time 2. billions of connections between neurons 3. genes & experiences affect developing brain 4. cognitive, social, and emotional capacities are inextricably intertwined 5. Toxic stress weakens architecture of the brain, which can lead to lifelong problems in learning, behavior, and physical and mental health

Disclosure of sex abuse & cultura

1. children recently arriveing to US less likely to report 2. delayed disclosure when family/home circumstances change 3. cultures shape how people recount their experiences; expecting children to recount abuse in a linear, logical, chronological fashion to meet the needs of the criminal justice system can be difficult for all children and especially those not from dominant culture

When confidentiality DOESN'T apply

1. court-ordered evals & exams - purpose to provide info to court 2. child abuse and neglect reporting - mandatory reporting by certain prof'ls. Note that state law differns

What do you need experts to testify to (physical abuse)?

1. degree of force necessary for injury exceeds normal childcare 2. force great enough that rsbl person would recognie it would hurt a child 3. child's response shows pain

"6 core skills"

1. enter the child's world 2. assess safety (remove danger, not child) 3. actively eval needs 4. advance case-planning 5. dev case theory 6. advocate effectively

Case Assessment and Theory Development at Each Stage

1. initial filing, pre-adj - get info, find out if other issues exist 2. adj - review facts & allegations; come to a position 3. disposition: BI guide to the analsysis re services, needs, placement, etc 4. Permanency & TPR: focus on agency providing services, child's goal and age important in TPR

15 threats of impending danger

1. no adult 2. lack of resources (food/shelter) 3. lack of parental knowledge 4. impulsive/cannot control behavior 5. perceptions negative 6. threatening harm 7. threatening harm to child 8. intention to hurt 9. rejects CPS intervention 10. refuse/fail to meet exceptional needs 11. dangerous living arrangements 12. serious injuries/mental health and parents fail to addres 13. fearful 14. no explanation of injuries 15. violence

Physical abuse - concerning for intentional trauma

1. no explanation/vague explanation 2. important detail changes dramatically 3. inconsistent with pattern, age, severity of injuries 4. inconsistent w/ child's physical/developmental abilities 5. different witness provides markedly different description

Opportunities for advocary in mental health exams

1. specific rational for eval, specific questions & recs 2. what documents to be shared 3. best practices 4. evaluator w/ expertise in field 5. peer-review 6. confront unsupported inferences 7. check evaluators license

Variables associated with child maltreatment

1. unrealistic expectations of child 2. views child's behavior as extremely stressful 3. negative attitudes about behavior 4. perceives child as aggressive, intentionally disobedient, annoying, less intelligent 5. abusive mothers are more likely to perceive their child's negative behavior as the result of stable internal factors sch as personality trait but own behavior as result of unstable factors 6. low involvement, nurturance, control, and monitoring 7. less supportive, affectionate, playful, responsive 8. w/ infants, more controlling, interfereing, covertly or overtly hostile 9. authoritative: punitive, coercion, restrictiveness, low warmth & respect 10. unresponsive 11. do not initiate interactions or respond to attempts 12. more likely to use punishment, less likely to use reasoning

Problems w/ MH Evals in child protection

1. vague questions 2. focus on weaknesses 3. no discussion of parent-child relationship, parenting skills 4. no observations 5. single session 6. no collaterals 7. no info re reliability, validity 8. compare to optimal parenting instead of adequate parenting 9. unethical - best practices not used 10. low quality assessments

Repping children - ABA Model Rules

1.14(a): if capacity diminished by minority, mental impairment, or otherwise, lawyer to maintain normal a-c relationship as reasonbly possible (even 5 y/o enttiled to weight of their opinions 1.14(b): when lawyer rsbly believes that the client has diminised capacity, is at risk fo substantial physical, financial, or other harm unless ax is taken and cannot adequate act in the client's owninterest, lawyer may take rsb nec protective action...seeking appt of GAP, conservator, or guardian Comment suggests that law recognizes intermediate degrees of competence

ACEs (adverse childhood experiences)

10 ACES (abuse/neglect, alcohol/drug abuse, incarcerated parent, depressed/mentally ill, violence) affect development short and long-term. Higher ACES score = more issues, but higher risk not guarantee; can affect completing school and high ACES scores in juvenile dependency system **Note resilience: person can live through ACES without negative outcomes

Parent Atty - Rerm Planning Hearing

12 months from removal or 30 days from no FR order, ask for return even if parent not done w/ services or ask for more time; subpoena provders to get info in writing; get child atty position; talk to GAL. talk to parent about consent; argue against TPR petition

In re Gault

14A applies to juvenile proceedings, youth recognize as independent persons and not only property of parents

CPS & 4A

4A protections against unreasonable searches and seizures apply, but no exclusionary rule like crim court

Review hearings

6 months minimum by court or admin body, some states say court only Hearsay reports allowed so long as worker is available to testify Target date for return/adoption, permanence and sibling placement a priority

Suter v. Artist M. (1992)

AACWA doesn't provide a private right of action of dependent children - addressed state's best efforts under AACWA

Child's Participation in Hearing

ABA Model: "having the child in court emphasizes for the judge and all parties the the proceeding is about the child" Some states require it, others have specific ages

ICWA - Active Efforts

AE are "separate and distinct) from rsbl efforts under AFSA. It it higher than rsbl but not defined and some courts have held that not required if would be futile

AFSA - TPR

AFSA re perm hrg at 12 months TPR for childre in care for 15/22 most recent months, unless exception applies: w/ relative, compelling reason, no services received. Mere passage of time is not enough. States must incl. these provisions in plan to rec funding TPR req: c&c evid of unfitness + BI for child; different factors in states but generally: MH, allegation, cont risk, compliance w/ case plan, visits Relinquishment and parental involvment should be encouraged to prevent legal orphans

Permanancy Hearings

AFSA requires by 12 months but court can allow more. 14+ to participate in hearing. independency living not as stable but allowed.

Collecting information re child safety

AFSA requires initial rsbl efforts determination to prevent removal w/ in 60 days or emergency Fed law doesn't require rsbl efforts finding to finalize PP until 12 months after child enters FOCA but can rule on rsbl efforts to reunify earlier Court can consider safety plan at any point If agency doesn't provide safety-related info, ct can find no rsbl efforts

Permanency - Priority

ASFA goal - expedite permanency for children out of home; FR, adoption, LG, perm placement w/ relative, APPLA (prohibited for child under 14; must have specific reason)

Protective capacities

Ability to be protective toward child 1. cognitive: knowledge 2. behavior: actions, activities, performance that result in protective vigilence 3. emotional: feelings, attitudes, identification

Pennsylvania v. Richie (1987)

Accused was entitled to ask ct to review juvenile records and for court to determine whether there was material information that should be disclosed (FA accused of sexually assaulting daughter wanted access to dependency records for criminal case)

Safety plans - in home

Actions/ methods to immediately control threats (daycare, substance abuse programs, in-home support). agency must make rsbl efforts to keep MI in the home, incentive is IV-E.

Children's Health Act of 2000

Addresses rights of children in group homes/residential treatment facilities - protects from physical/mental abuse, corporate punishment, restraints, or seclusion imposed for discipline. Certification required to use restraings

Hearsay Exception - Charge of fabrication

Admissible if uttered before motive/pressure to fabricate arose

Ohio v. Clark

Admission of statements by preschool teachers describing what 3 y/o said about injuries was not testimonial as distinguished in Crawford v. Washington bc they were not w/ priamry purpose of creating evidence but occurred in context of ongoing emergency

Hearsay Exception - Prior consistent stmts

Admitted to rehab witness credibility; TOMA only if stmt consistent w/ testimony and offered to rebut express or implied charge that the declarant recently fabricated it or acted from recent improper influence or motive

Hague Convention on Protection of Children & Cooperation of INtercountry Adoption & IAA

Adoptions should take place in BI of children, authorities in country of origin must verify that child is freed, consents freely and in writing

Application to USCIS

After SIJS, must apply for adjustment of status to LPR Inadmissibility grounds waived for SIJS, public charge, working w/o labor cert, in US w/o inspection, misrep to immig authorities, stowing away, lacking a valid visa, in US unlawfully

Agency Atty Responsibility - Info/Docs

Agency atty can facilitate access to info/docs; subpoenas, ct ordered discovery, emergency removal orders

Agency Representation - Agency Model

Agency is the client as an entity (not the workers), advocates for the agency position, benefits incl a-c privilge, credibility in ct, collaboration w/ agency, expertise This is the majority

Adoption & Safe Families Act (ASFA)

Amended IV-B&E to clarify intent of congress w/r/t provision of child protection services. Change from AACWA: in determining rsbl efforts to be made w/r/t a child... the child's health and safety shall be of paramount concern 1. eliminated rsbl efforts in cases of extreme abuse 2. aggravated circumstances to justify bypass 3. Immediate TPR in certain cases 4. Some states allow MICO to ask for TPR at any point after case is filed 5. Does not define reasonable efforts when FR 6. Written case plans, which must incl. health, school, and related info re MI, if 16+, rsbl efforts to obtain independence

therapeutic jurisprudence

An approach to the law emphasizing the favorable mental health impact or otherwise "therapeutic" impact of the legal system upon its participants. Child more satisfied w/ and complies more w/ outcomes perceived as fair and w/ opportunity to participate; DP increases benefits Atty voices child's concerns, atty needed to make sure ct safeguards child's right to assert privilege

ICWA - Indian Child

Anunmarried person who is under 18 and a member or eligible for membership in a tribe

Appeals - Appealable Ordres

Appeals as a matter of right (most jxs): 1. initial order of dispo placing child under ct supervision; 2. TPR Discretionary: all others; ct has discretion whether to accept appl

Interstate Compact on Placement of Children

Applies to states that adopt it, but all have Requires notice to receiving state and sending state must receive back notice that placement is not contrary to child's interest, gives receiving state opp to investigate the home Sending state retains jx (legal & financial responsibility); receiving state conducts visits and informs sending state Split in law as to whether ICPC applies to placement with parent out of state, but NACC says it doesn't by plain language of statute

Confidentiality - When arises

Arises when disclosure is made w/ intention to remain confidential, confidentiality is essential to relationship, relationship is one that society wishes to foster, injury of disclosure greater than benefit of correct disposition

Interstate Compact on Adoption & Medical Assistance

Assists w adoption of special needs children. provides for "est & maintain of suitable substantive guarantee and workable procedures for interstate cooperation and payments to assist w/ medical assistance

CAPTA - federal definition of abuse/neglect

At a minimum, any recent act or failure to act on the part of the parent or CT, which results in death, serious physical or emotional harm, sexual abuse or emploitation, or an act or failure to act that presents an imminent risk of serious harm"

Child-Centered Interviewing

At child's level: - commons words/phrases - used names not pronouns - stay away from negative - simple questions (one idea) - start questions w/ main idea

ICWA - Appt of Counsel

Attorney required for aprent in any removal, placement, or termination proceeding & best practice to appt attorney for child.

Culture - attorney advocacy

Attorneys must be aware of cultural issues to avoid inhibiting communication or intimidating client. Dominant culture is Christian, white, straight, upper middle class, and favors men. Members of the dominant class must be self-reflective and respectful, not judgmental bc something seems strange or different

Agency Atty Responsibilites - Reasonable Efforts

Atty must ensure that agency complies with RE and appropriate orders are made (RE = prevent removal, reunify, perm plan w/in 12 months) No RE = no funding If no RE to prevent removal, agency will lose maintenance funds, which is not fixable If no RE toward permanency and then agency does what it needs to do, ct can review and make RE finding; will be no funding for the period where there was no reasonable efforts but funding for subsequent period

U Visas

Available for Vs who suffered substantial physical or mental abuse as a result of qualifying criminal activity that occurred in US or violated US law. Proof from police reports, 911 calls Must possess info, and will be/has been helpful in prosecutrion, investigation - good for 4 yrs and can apply for status after 3 - cooperation required & CPS counts, but prosecution and conviction not - regardless of immig status of perp - derivative status for spouse, parents of children under 21, unmarried subs under 18 of victim children under 21 - Inadmissibility waivers like VAWA

T Visa

Available for person is US who is V of severe form of human trafficking and assists w/ LE. Likely to also qualify for U-visa Provides waivers to bars to some benefits not available to others who obtained legal status through other means

Treatment for abuse - role of child's attorney

Avoid formulaic approach to client's needs and be a "consumer" on behalf of the children to advocate for appropriate, scientifically-based (if possibly) and individually tailored plan; continually monitor needs Also ALWAYS advocate for empirically based treatment for both parents and children

Crim & Dependency - burdens of proof

B/c of BOP, crim conviction can be used to prove abuse in CW case but not other way around bc BOP is higher (BRD v. POE)

Multiethnic Placement Act & Interethnic Placement Provisions (MEPA)

Background: policy that black children should not be adopted by non-black families results in minority children staying in FOCA longer MEPA (1994): eliminated race, color, national origin in making FOCA and adoptive placements IEP: amendments to MEPA to clarify that r/c/no could not be used in placement decisions and provided penalties - prohibits denying or delaying placement for r/c/no, but allows BI determination and requires recruitment of diverse fost/adopt parents

Parents Attorney - Role at Preliminary Hearing

Basic info: contact info, version of events, petition Counseling: decide whether to consent/submit to that hearing (not allegations), contest; placement, safety plan for release, program services Negotiation: work w other counsel Courtroom: never proceed on major issues w/o discussion, ask for continuance, advise against aggressive behaviors before ct, present info re safety in home, services, RE; push for u/m visits when approp; encourage participation

Develop a theory of the case

Be open to revising the theory, take child's goals and experiences into account

Age & SIJS

Before 2008, application must be completed before 21. 2008 Trafficking Victims Protection Reuathorization Act allowed for "age-out protections' which allow for consideration of age at time of filing In tension w/ req that child continue to be a dependent and eligible for LTFC (tactic is to delay finalization/JT)

AACWA - Impact

Began to work, but then more conservtive gov't took over and cut social programs; social forces such as crack & HIV/AIDS epidemics increased FC placements. Efforts to keep families in homes without enough focus on safety. High profile deaths/injuries of children w/ parents where CW was involved led to rethinking of AACWA

Permanency - Placement w/ non-custodial parent

CA: non-custody, non-offending parent gets child unless C&C evidence of detriment; if our of state, ICPC may apply, not settled

Confidentiality of child abuse reports

CAPTA - confidential except: i. subject of report ii. gov entities in order to protect children iii. child abuse citizen review iv. child abuse fatality review panel

Confidentiality of Juvenile Court Proceedings

CAPTA allows states flexibility to allow public access SC has reinforced right to access via 1st amended in criminal proceedings Considerations: No confidentiality: exposes abusive parents, promotes accountability, motivate improvement, more accurate info w/ more people involved Pro confidentiality: psychological harm to child, public explosure includes self-blame, decrease admissions, media will exploit children

Reports of Child Maltreatment

CAPTA provides funding if states adopt mandatory reporting laws where states have different definitions: "harm or threatened harm" "serious threat or serious harm"

Administrative Appeals - expungement

CAPTA req each state to have procedure Can appeal plcmt on registry for abusing or neglecting children, gets judicial review and admin decision but not real expungement bc agency can keep records to assist in assessing future risk/safety, so only limits access Each state has its own admin procedure and juvenile atty can intervene if no specific role for the child

Repping children - legal authority

CAPTA reqs GAL for children No fed/con law req for atty Some states requires atty Unclear what happens if GAL disagrees w/ child; some states appt an independent counsel, some provide guidance for what happens if GAL disagrees with child (like CA)

Repping children - Qualifications

CAPTA requires training appropriate for the role and then leaves it up to the state. Only 1/2 of states req training before appt or CLE in the field; experts rec ABA 1996 standards and QIC best practice model, manageable caseloads, reasonable pay

Victim's Bill of Rights

Can be exercised through GAL or prosecutor Requires: notice, status of def, confidentiality, present, consultation before dismissing, separate waiting area, may make stmt, restitution, can refuse to be interviewed by defense *32 states have amended constitutions to provide bil or rights to Vs of adult perps only Non-offending parent, agency, or attorney/GAL can exercise these rights

Culture as "explanation" for sex abuse

Can be range of defensives that touching was cultural, but should be explored w/ a prof'l and not taken at face value Some acts may have cultural origins but still harmful and illegal (female genital mutilation, forced marriage, marriage-by-capture, child marriage, statutory rape)

Cultural incompetence

Can lead to devastating results: inadequate representation, losing child, etc

Parenting capacity eval - overview

Can provide information re issues related to child welfare, such as: i. paterns of functioning; ii. problematic behavior and reasons; ; iii. potential for change; iv. environmental factors v. present functions But serious concerns with them and they must be done properly - "functional approach" - focus on actual parenting abilities rather than general mental health, assesses the fit between the parents capacities and the child's needs (physical, cognitive, emotional); functional approach can also assess active mental health issues, severity, substance use, history (violence, child welfare)

Safety plans v. Case Plan

Case plans are ordered by the Court, must detail what must change to be successful and effects can be measured over time. AFSA requires that case plan will improve conditions and facilitate return to safe home, review every 6 months w/ time limits for children out of home. Effective and expedient strategy to prepare parents to ensure child's safety

Appeal - spotting legal errors

Categories of errors: factual, const, errors, statutory, evidentiary Questions to guide counsel (parents) Notice? right to counsel? incarcerated parents? rules of evidence? ICWA? Statutory: challenge every statutory finding? Rsbl efforts? incarcerated parent & appropr plan? compliance w/ case plan? non-offending parent? Limit of parenting time, visits w/o detriment? ICWA standard applied? BI: placement with relatives, siblings? adoptable child/legal orphan?

Child Testimony - Suggestibility - Areas more/less likely

Central vs. Peripheral Details - More suggestible abt peripheral details than salient, memoral info (key info vs ancillary facts) More suggestible if unsure of meaning of touching, esp when questioned by bias interviewed, but not about the fact of the touch (whether touching occurred vs. why) Participant v bystander: participant has stronger memory of event, stronger ability to resist suggestion

Confidentiality of Child Abuse Records

Certain disclosures allowed, but not re-disclosures by people who received the info; most states allow disclosure of fatalities or near fatalities; some states allow summaries of outcome; state states permit infor to be shared w/ FOPAs

Developmental milestones

Characteristics and behaviors considered normal for children in specific age groups - physical (growth charts), developmental (gross/fine motor skills), social/emotional (eg paying attention to faces), cognitive skills (peek-a-boo, words).

Effects of testifying on children

Children should testify when no other way to get info Perception that testifying is negative isn't supported by widespread agreement among psychologists Research shows short-term effects more harmful than helpful but by the time the case is resolved, similar as non-testifying kids

Pierce v. Society of Sisters (1925)

Cited for proposition that parents have a right to raise their children w/o undue gov't interest Oregon law requiring children 8-16 to attend public school unreasonably interfered with parents 14th amendnment right to direct upbringing and education of their children

Tinker v. Des Moines (1969)

Cited for proposition that students' constitutional right to freedom of speech warrants protection. In this case, 1A protected children's rights to wear armbands to school in protest of Vietnam War

Washington State Department of Social and Health Services v. Keffeler (2003)

Class action on behalf of children in FOCA receiving SS benefits that wer being paid to the state as a representative payee - upheld as reimbursement for costs of maintaining children in FOCA

ICWA - Removal

Clear & convincing evidence that continued custody is likely to result in serious emotional or physical damage to the child + Qualified expert witness (must testify to risk, have ties to tribe) & active efforts to keep the family together

Santosky v. Kramer (1982)

Clear and convincing evidence is needed (at the very least) to ensure due process is granted when terminating parental rights. States are free to determine the precise burden "equal to or greater than that standard." Struck down NY statute providing for POE

Andrews v. Creighton

Clear constitutional right: "rsbl officer would understand taht what he is doing violates that right" and "unlawfullness must be apparent" 2-part test: Was there a violation of a right? Was that right clearly established?

Bruises

Common in active children, but more common in bony areas; not common in soft tissue areas and children who are not mobile shouldn't have bruises

FGC and ADR in CW

Communication issues: esp. helpful if issues b/t family or family & profls; outside can clarify and this creates increased involvement by parents Transition meetings: bringing adults and youth together to discuss future helps w/ transition, create plan Voluntary Relinquishment Counseling: may provide more civil liberty protection compared to other termination processes, parents can feel like facilitator is on their side; more amicable relationship b/t parent and adoptive parent

Foster care as "mental health treatment"

Concern re foster care placement itself as the default mental health treatment for maltreated children, but children can do both better and worse in FC. Note that improvements in FC indicate issue with previous home environment

Problems underlying Title IV-B and IV-E

Concerns with children remaining in limbo and foster care drift

DV & Custody Decisions

Concurrent Resolution 172: in determining custody, cred evid of physical abuse of one's spouse should create a statutory presumption that it is detrimental to the child to be placed in the abuser's custody Except for SD and Utah, all states consider DV as factor in custody

Prince v. Massachusetts (generally)

Confirmed state's authority to intervene in family relationships to protect children

Atty Advocacy for Other Services for Child in Facility

Consistent w/ MI's wishes: ABA C-44 - appropriate services to access entitlements, protect interest, implement service plan ABA C-5 - child w/ special needs receives appropriate services to address physical, mental, developmental disabilities IEP, IDEA, ILP, ADA requires that child gets all the same services as children outside the facility have

Interstate Compact on Mental Health

Coordinates treatment for patients w/ MH or mental disability, transfers between states

Parent Atty - Between Hearings

Cornerstone advocacy model: meet with client & worker, minitor progress, encourage parent to participate

Parents Atty - Pre-Adj Proceedings

Counseling: if removed, import of visits, appts, involvement; max parents opp to receive services: monitor & enforce ct orders, tell client to call if probs arise, set contempt hearing if next hearing is far out, service plan w/ reasonable obj needs to be created 60 days after removal; parent involved and agency should encourage participation Settlement: talk to client re options; limited pleas or stips can help parent look cooperative and avoid trial, but never force client to take plea Prep for trial: fact finding, alternative explanations, subpoena, review file, discovery

Ethical Role & Responsibilities of Child's Attorney in MH Proceeedings

Counselor - client-centered counseling; ABA Standard B-4: duty to explain, inform of relevant facts & law, ramification of positions, likelihood ct or others accepting position, advise as to expert recs, provide infor then help come to a decision, identify goals, weigh pros and cons, answer questions, legal opinion & assessment of merits Negotiator - interact w/ all parties to reach best outcome - ABA Standard C-6 - "particularly in contentious cases, the child's atty may effectively assist in negotiations of the parties nad their lawyers by focusing on the needs of the child Advocate - if child objects, atty can articulate that ABA B-1 - atty not merely fact-finder but advocate ABA D-13 - ensure continued rep in all future hearings ABA F-1 - consider & desicuss w/ the child, poss of appeal

Making safety decisions

Court assesses threats, vulnerabilities, protective capacities. No threats = safety Threats but not vulnerable = safe Threats + vulnerable + protective capacities = safe Threats + vulnerable + insufficient protective capacities = unsafe

Quilloin v. Walcott (1978)

Court limited rights of FAs out of wedlock to chose who had evidence of substantial interest in their welfare (FA didn't seek to legitimize MI until after filing of adoption petition by step-FA). Rights of FA who was never married are distinguishable from divorced FA

Dependency & Criminal Proceedings

Crim procedure should come first bc it can affect CW case, but also issues w/ "admitting" becoming a problem: if parent doesn't admit in criminal case, can be a barrier to reunification. CW info discoverable in criminal cases. In some states, participation in programs can't be used against parents

Cultures and their influences

Culture: set of beliefs, values, and practices shared by a group of people, which can shape how people parent, hold conversations, handle crises, what they consider private, and relationship with the criminal justice system Note especially how child-rearing can be affected by culture, with things considered abusive in one culture not necessarily seen as abusive in another

Child abuse & neglect registries

DP concerns when listed as perp; usually confidential unless applying for certain jobs or to be foster parents. Stigma plus test to determine if const-protected interest Stigma: on registry Plus: career at stake Process: written notice that on restry, admin review or hearing, expunge or correct inaccurate reports; some states allow people to go straight to court to remove name; allegations proved by standard, usually POE

Procedural Due Process for CW Cases

DP required Petition & notice (codified by state)

Requirements for admission to psychiatric hospital

DP: 1. inquiry by neutral fact-finder 2. inquiry must probe the child's background using avail resources 3. must be periodic review by the neutral fact-finder State laws can provide ad'l protections, some states allow commitment over child's objection

Disposition

Decides custodial placement, visits/contact, services orders must be clear and specific, relative placement preferred but health and safety paramount

Agency Model: Atty-client relationship

Decision-making: atty makes legal decisions based on the agency's determinatuion of the social work issues. Diff of opinion b/t atty and worker? atyy can counsel agency decision-makers for concerns of legal liability for failure of legal duty, but decision to remove is agency **In other words: agency decides whether to seek removal; attorney advises whether there is legal basis to remove **If the difference is significant, if atty feels that position is illegal or unethical, consult ethics rules, refer to higher authority in organization, atty can withdraw from case if feels is required, if not compromising interests of agency; may req ct approval

Mediation

Def: collaborative prob-solving proce inv an impartial person who faciliates constructive nego & comm among parents, lawyers CPS, to reach consensus; Principles: - focus on safety & BI; validate parties feelings - facilitated by neutral - exchange of info - confidentiality - part of the record & enforceable - validation - reduces animosity - improves relationships Process - ensure clients know what to expect - mediators opening stmt - informal, agreement re rules - parties opening stmts - uninterrupted, goals, atty can speak - cross- talk - venting, arguing, discussion - caucus - separate meetings to work w/ client - writing the stmts - post - ct approves

Finch v. NY State Office of Service & Family Services

Delays in scheduling hearing constitionally infringed on right to pursue employemtn

SIJS Factor 1: Dependency

Dependent = subject of judicial admin proceedings; can incl. custody of individual appt by state, which incl. guardianship, so FOCA or dependency case not necessary, but must be the result of abuse, neglect or abandonment. Testamentary and voluntary LG qualifies for this prong but not the next one

ICWA - Background

Designed to combat decades/centuries of interference in lives of Indian families, incl. large-scale removal of Indian children for indoctrination. Indian children still overrepresented in FOCA 2-1

Representing non-offending parents

Determine what if any rights, statutes usually consider child support, gifts, visits, birth certificate, attending appts etc. Note difference bt const rights based on relationship with child Note also differences in how diff states treat non-offending parents: strip non-offending parents of rights along w/ offending parent; case dismissed if non-offending parent steps in; prohibit court from ordering non-offending parents into services

Interviewing - theory

Direct & suggestive methods once thought necessary to overcome reluctance to disclose but we now know those are counterproductive b/c they minimize details in true allegations and increase risk of false allegations

Confidentiality of Substance Abuse Treatment Records

Disclosure allowed if consent or necessary to protect threat to life, bodily injury, child abusem etc.

Children in Court - Should children be in Court?

Diverse approaches -parties or not? required in the courtroom or not allowed? However, there is a push toward having kids participate more in court vs arguing that court is not the place for MIs (they should be in school, should not hear things)

Education Proceedings

Ed attorneys - no right, can make referral Ed right holder - some states pass to foster parents, CASA can be holder but no one from the agency; child or parent can contest expulsion/suspension

DP for removal

Emergency removal before hearing is constitutional if state can est. PC of such danger & of parental abuse or neglect & that it would be unreasonable to wait to obtain court order

SIJS - Special Immigrant Juvenile Status

Enacted in 1990 to provide path to citizenship for abused, neglected, or abandoned children 3 factors: 1. declared dependent, legally committed, placed in custody of state agency 2. No viable FR w/ one or both parents 3. Not BI to return to his or parent's prev country *Juvenile Court not making immigration decision but basis for immig relief

Actions to take as child's lawyer

Engage w/ child, enter child's world: assess whether they can direct counsel and their developmental level, rep should be based on that Child's wishes: always relevant, should participate in rep, wishes should be provided regardless of model of rep (BI v client-driven), duty to explain positions and consquences to child Competent, independent, zealous advocacy: active and aggressive advocate once goals have been developed regardless of model of rep

Agency Atyy Responsibilities: Court orders & Fed Funding

Ensure correct language/findings are made and agency cannot ignore orders that it finds unreasonable. Example is findings for removal: ct must make "contrary to welfare" finding at detention; if not, will lose funding.

Maltreatment in Children under 5 - legal representation

Essential for counsel for NVB child to challenge any failure to respect or address the needs of the children

DP & TPR

Even if parent is unfit, TPR must be in BI of children - parents retain strong liberty interest in children even after placement in FOCA and TPR is a unique kind of deprivation (so severe and so irreversible)

Three E Framework

Events that cause trauma + experience of the event + lasting Effects. (eg: two different children can respond differently to the same abuse; presence of a stable adult can prevent lasting effects) When all three are present, child is considered traumatized.

Mandatory vs voluntary treatment

Evidence suggests that mandated interventions can be beneficial

Closed-ended questions

Ex: Yes/No, require single-word response, or forced choice Cons: - child will give no more than required - focus on interviewer: what the interviewer thinks, not the child - accurate but incomplete responses - relies on interviewers words, which can be difficult or ambiguous; if child doesn't understand, may not ask for clarification or may not know they don't understand - more suggestive - can be leading w/ no opportunity for 3rd option - encourages guessing or "I don't know"

Child Testimony - Suggestibility - Age

Exists at any age, depends on situation, developmental and personality, type of event, how well it is remembered, what info is sought by interviewer, way the interview is conducted, the language used, intimidation of subject, inflkuences before and during interview Under 6 is more suggestible and generally younger children are more suggestible: w/ age, child's memory accuracy improves for eye witness events but more resistant to falce suggestions about negative and abuse-related activities than false suggestions about othe rnever-experienced activities

Attorney-Client Privilege for Children

Extended just like an adult but governed by state law and might depend on model (client-driven is usually privileged; BI/hybrid may not be) Range of state laws: some req confidentiality icl. for GAL, others make attys/GALs mandated reporters What if child discloses abuse and confidentiality applies? If diminished capacity, atty can reveal info to the extent necessary to protect the child. If not dimished capacity, counsel to disclose only to the extent necessary to prevent rsbl certain death or substantial bodily harm, to be suffered imminently Atty should communicate w/ MIs re level of confidentiality and atty should never serve as a witness and advocate at the same time

IDEA & FCA

FCA doesn't explicitly req agency to provide transportation, can claim maintenance dollars Spec ed considered in BI and IDEa requires free and appropr transport if new school agrees in BI to stay at prev

SSI-disability benefits

FOr disabled ppl w/ limited income; entitled to Medicaid Under 18 - medically determinable physical or mental impairment that results in marked and severe functional limitations, which can result in death or lasts for continuous period more than 12 months Adult - unable to engage in any substantial gainful activity due to medically determinible physical or mental impairment death, continuous period 12+ months CA statute mandates this for FY b/t 16.5-17.5 yrs, app submitted for all likely to qualify;

testimonial competence

FRE 601: everyone is competent unless exempt as otherwise provided in the rules - if fed rules adopted, conpetence presumed Cal Evid Code 700: every person, irrespective of age, is qualified to be a witness." Trial ct can determine competence via a series of questions for the child: 1. Capacity to observe: should have ability to receive correct impressions from senses 2. Memory: whether memory is accurate is issue of credibility not competence 3. capacity to communicate 4. Intelligence: below-average can still testify if can observe, recollect, and relay info to trier of fact. 5. Truth vs. falsehood: avoid asking "what is truth or lie" or "what is the difference" bc assumes kids know meaning of the word "differences" Lyon method: show pictures of animals, ask child to ID the animal; then ask if child is telling the truth about the label of the animal; repeat 4 times to avoid guessing 6. Duty to testify truthfully: client only needs to know that they have to tell the truth and that untruthful testimony can result in punishment Lyon method: show a picture of two kids in front of judge, tell child Kid A will tell the judge a lie and B will tell the judge the truth, ask which one will get in trouble

Hearsay

FRE 801(c) stmt not made at trial while testifying and offered for truth of the matter asserted (description of event can be used for sexual knowledge if not for truth of matter)

Hearsay Exception Excited utterances

FRE 803(2) 1. starling/excited event. 2. relate to event 3. while under stress of excitement induced by event

Hearsay Exception - Diagnosis or treatment Exception

FRE 803(4) - admissible bc declarant has incentive to tell the turth or doct or nurse; pertinent to diagnsis or treatment

Hearsay Exception - Present Sense Impression

FRE 803(a) - admitted if: 1. perceive the event (doesn't need to be startling/shocking, doesn't need to be participant 2. stmts must describe.explain event 3. Made during or immed after the event

Residual or Child Testimony Exceptions

FRE 807 and states have "catch all." Is hearsay relaible? judge may consider competence at time of stmt, at time of trial, spontaneity, type of questions used to elicit stmt, consistency, age, lack of motive, corrob, changes in behvior **States also have various exceptions to child testimony

Education Advocacy

FY experience suspension/expulsion at higher rate, lower test scores, high levels of grade retention and dropout, lower grad rates, loss of credits Goals for youth: i. remain in same school when in BI ii. seamless transition when moves occur iii. enter school ready to learn, incl. pre-school programs iv. participate fully, incl. after school v. support to prevent drop out, truancy, discipline vi. adult invested in their educ vii. invlved & engaged in their educ planning - gives adults direction viii. support for post-secondary

SIJS Factor 3: Best Interest

Fact-finding by juvenile court: lack of appropriate family members to care for MI in another country and future opportunities in the US sufficient

Definion of neglect

Failure of a CT to provide for child's fundamental needs, typically adequate food, shelter, clothing, med care, and educ.

ICWA - consequences

Failure to comply with proceedings can invalidate proceedings from inception

Neglect - defined

Failure to provide for child's fundamental needs w/ action or inaction

Medical neglect

Failure to provide needed medical treatment Must usually show link b/t failure to provide medical care and adverse affect on physical or psychological health

Children's Justice Act

Fed grants to states to improve investigation, prosection, and handling of child abuse cases, esp. sex abuse

Lehman v. Lycoming County Children's Service Agency (1982)

Fed habeas corpus statute 28 USC 2254 may not be invoked to challenge constitutionality of a state statute under which the state has obtained custody of children and involuntary TPRed

School discipline proceedings

Fed law prohibits suspension/expulsion for manifestation of disability, must conduct assessment and implement behavior plan to address needs, also applies to kids not in spec ed if kids knew about disability

Laws Impeding Transition to self-sufficiency

Fed rest: if Title VI-E and no SSI, may save $10K; id SSI, up to $2K State intercepts youth SSI - "use and benefit of the beneficiary, payee reference for fost child: can be parent, relative, NREFM, or agency - agency basically uses MI's SSI to reimburse itself for costs of FOCA for youth Practice addressed in Washington v. Keffeler - practice OK but agency must notify higher priority payees; must act as fiduciary and in best interest *child's atty should inquire bc notice not required

Title VI-E

Federal funds to help offset the costs of out of home placements; requires: case plan w/ perm plan goal, schedule of services for FR **Note that much more funds go to IV-E (out of home placement) than IV-B (prevention of removal)

Every Student Succeeds Act (ESSA)

Filled gaps in FCA: requires state ed agency to incl. steps to ensure i. SOO unless not in BI, ii. immediate enrollment in new school even w/o docs; iii. contact prev school for records; iv. point of contact -- shared responsibility McKinney Vento - homeless children

Parent Atty - Appeals

Find out if order appealable; counsel about pros and cons, timelines

Troxel v. Granville (2000)

Fit parents can make decisions for their children and teh court must give it some weight - in this case, law allowing anyone to petition the court for visitation violated parents' due process liberty interest in care, custody, and control of child as it left BI determination to judge

ICWA - Concurrent JX

For Indian child who lives off reservation, state and tribe have jx.

ICWA - Exclusive Tribal JX

For a child who resides or is domiciled w/in reservation, if "ward of tribal court," tribal court has exclusive jx regardless of where the child lives. Emergency removal OK to prevent imminent damage but must be transfered

Smith v. Organization of Foster Families for Equality and Reform

Foster parents sued based on violations of constitutional rights when welfare workers removed foster children who had been in their care for years w/o DP & addressed foster care drift

Ecosystemic Framework

Framework to understand the many possible influences on a single incident of alleged abuse: individual, home & family, ethnic & religious culture, social systems (neighborhood & treatment providers to systemic discrimination and housing affordability). This framework allows us to take into account all aspects of family

4A - Special Needs Expection

Frequently applied in CPS investigations Need has to be other than LE (such as accompanying DV V to get belongings) CPS + LE does not qualify for special needs; if CPS but not LE, unclear, varies by jx

Adolescent brains

Geidd: Frontal lobe develops again during teenage years Steinberg: brain development can explain impulsive decision-making and risk-taking behaviors in adolescents (Note SCOTUS decisions re juvenile offenders)

QIC best practice model for repping children

Get all pleadings, notices, participate in discovery and hearings, inform other parties that you are repping client, placement decisions, reduce delays for permanency, counsel client, dev theory of case, ID family and resources for the child

Parent Atty - Dispo

Get case plan, agency's position; advise client as to risks/benefits of disclosing new needs, tell client to keep journal; advise as to compliance + insight Discuss alt dispo plans and ensure not boilerplate. Services reasonable or argue no RE. If ADA, then services must be specialized. Ask for max number of visits, services outside of normal hours if necessary and convenient locations

Parental Kidnapping Prevention Act

Gives effect to custody decrees from other states: if state issues custody order, other states must give it full faith and credit But, if there is child maltreatment, another state can make orders for protection of child if "the child is physically residing in such state and teh child has been abandoned, or it is necssary in an emergency to preotect the child" because of abuse or potential abuse

Treatment for abuse - parents

Goal: to stop abuse or reverse neglect, improve parenting & competency for positive interpersonal relationships between child and other fmaily members; addressing symptoms of psych disorders; managing sexual aggressive, violent, or exploitative behavior directed to child

Adoption Assistance and Child Welfare Act of 1980 (AACWA)

Goals: 1. Reduce # of children in FOCA by requiring that rsbl efforts be made to keep children w/ families 2. reduce time in FOCA by requiring rsbl efforts to reunify 3. Mandated agency or court review every 6 months and permanent plan w/in 18 months 4. Federally funded adoption subsidies in an effort to find adoptive homes for hard to place children 5. Matching state funds 6. put children in least-strictive, most family-like setting **Accomplishes these goals by providing funds to states to establish program

Permanency - Adoption

Governed by state law w/ fed legislation as guide; adoption transfers rights from BPs to APs Adoption subsidies: to assist APs w/ cost of care for child; if eligible, fed and state share costs; otherwise, state pays. Eligibility: was eligible for AFDC or SSI, special needs, cannot be placed w/o subsidy (waived if significant ties w/ relative CT), and cannot be returned (TPR fulfills this) Mod of Adoption subsidy: SSA 473 req if state reduces FOCA rates, recert process allows for collection of more info; APs can renegotiate subsidy agreement if more/new needs, change in financial cirs Term of Adoption Subsidy: only if child is 18 (21 if disability), states decide APs not legally resp for support or not providing support

FASD

Group of conditions that develop in a child when MO ingests alcohol during pregnancy. Completely preventable. No cure but interventions can help. Diagnosed by: facial abnormalities, growth problems, nervous system abnormalities, behavioral or communication problems

Smith v. Organization of Foster Families for Equality and Reform (1977)

Had to do FOPAs right to notice & a hearing when children removed Held: Whatever liberty interest might exist in FOFA, attenuated where proposed removal from foster home is to return to bio parents

Parham v. JR

Has a few relevant holdings: Medical neglect: parents have a high duty to recognize symptoms of illness and follow medical advice Also addresses legal process for MH commitment

Affordable Care Act

Health care to age 26 State must cover indivs under 26 who were in medicade or foster youth; income irrelevant

Santosky v. Kramer

Held that the constitution mandates that TPR be proven by clear & convincing evidence. Case involved children who had been in foster care for a long time, which was common

Abbott v Abbott

Held: Interntional Child Abduction Remedies Act, which protected a parents custodial right to determine a child's place of residence, includes a right to constent or object to removal from geographic location

Baltimore City Department of Social Services v. Bouknight (1990)

Held: MO who si custodian of MI due to court order can't invoke 5A to resist a juvenile ct order to produce the child

Ferguson v. City of Charleston

Held: state's diagnosic test to obtain evidence of patient's criminal conduct for LE purpose is unreasonable search and seizure if no consent; dealt w/ hospital providing utinalysis on pregnant women suspected of drug use to LE

Lassiter v. Dept of Social Services

Held: states are not required to provide appointed counsel for indigent parents in all TPR cases (though many state constitutions or statutes require this) Here, MO's lack of appointed counsel wouldn't have made a difference, though there are some instances where it would have made a difference and there might be a right to cousnel

Mississippi Band of Choctaw Indians v. Holyfield

Held: under ICWA, child of a person domiciled on an Indian Reservation also domiciled on the reservation even if born off and having been placed for adoption. Parents couldnot circumvent ICWA by leaving reservation

Sex abuse and historical trauma

Historical sex abuse (Native Americans, enslaved people, refugee communities) affect experiences of safety and danger and feelings about sexuality, abuse, and receiving help

Asserting/Waiving Privilege

Holder of the privilege or person's legal rep may waive. For children, states vary: - prof'l may assert but not waive - children and parents can assert and waive - when parents are legally adverse, they should not assert or waive - GAL can assert - Ct can assert and waive for wants - agency can assert/waive if agency is LG - if law allows child to assert or waive, atty must determine if child has capacity

Stanley v. Illinois (1972)

Holding: All parents, incl. FAs of children born out of wedlock, are constitutionally entitled to a hearing on fitness before their children are removed from their custody in a dependency hearing. Struck down statute where children were declared dependents if unmarried MO died, w/o hearng even tho hearings were required for married FAs and unmarried MOs

Moore v City of Cleveland

Housing ordinance that prohibited GM from living with her grandchildren was unconstitutional

Bd of Educ v. Rowley

IEP adequacy standard: rsbly calced to enable the child to receive ed benefit, doesn't require max of kid's potential; some states have higher stds

Corporate parent

Idea that there is a duty to provide the kind of support that any good parent wood and to emphasize normalcy for time in foster care

ICWA - Notice

If Court "knows or has reason to know" ICWA applies, notice tribe or tribes or, if no specific tribe, Sec of Int. Ongoing duty to inquire

GAL in criminal case

If GAL is appointed, can be same as CW case, which reduces reptition, can help coordinate

Hearsay & Confrontation Clause

If declarant is present, clause satisfied Crawford v. Washington: If stmt is testimonial, cannot be admitted; if not testimonia, CC doesn't limit Testimonial: primary purpose is to gnerate evidence for possible use in future crim proceedings Primary Purpose: stmts to parents, relatives, friends, FOPAs, babysitters not testimonial; stmts during forensics are testimonial Med prof: non-testimonial if made for clinical purpose Police: testimonial unless ongoing emergency; judge considers: whether ongoing, safe or in danger, med assit needed, alone or protected by others, seeking help, describing events happening or past events Ohio v. Clark: Crawford doesn't apply to juvenile proceeedings - stmts made to private individuals who are not charged w/ uncovering and prosecuting crime are significantly less likely to be testimonial than statements given to LE

Implications of 4A for CPS

If no exception for warrant and PC, seek ct authorization

CPS Investigation - Results

If not screened out and get to the 2nd step: 1. unsubstantiated: mayeb referrals, case closes 2. remain home w/ services, w/ or w/o court intervention

Special Education

If qualify under IDEA, right to special ed at not cost; if have IEP, school liable if don't follow. Bases can be: hearing, speech/language, visual, OCD, ortho, autism, TBI, deaf/blind, multiple disability Eligibility: behavior is red glaf, can be ED or ADHD; if request eval, school has 60 days to convene & draft IEP. If ERH disagrees, can request independent eval Req annually but ERH can request earlier review

Violence Against Women Act (VAWA)

Immigration relief available for person battered or subject to extreme cruelty by parent or spouse who is citizen or lawful resident. Allows abused person to access immigration benefits that a parent or spouse should be working to achieve; abuser not needed; requires proof of abuse and good moral character, qualifies for public assistance 1. inadmissibility waivers apply for public charge and unlawful presence, but not all (unlike SIJS) 2. Derivative status available for child of Victim

ICWA - when applies?

In any action involving placement of a child into FOCA, TPR, pre-adoptive placement, or final decree for adoption; some states include guardianships Doesn't apply in family court but might apply in delinquency if MI is kept out of home or TPR bc of issues in the home and not the delinquency charge

Consequences of maltreatment in children under 5

In study, maltreated children were more negative, non-affectionate and avoidant of their mothers, lacked enthusiasm and persistence in age-appropriate tasks; agrier, lacked self-control, avoidant, low self-esteem Trauma in first 5 years reveals high risk of negative bio, emotional, social, and cognitive consequences First week of life particular risk - 1/3 of maltreated infants under 1 are injured in first year of life and exposure to DV in first 6 months of life significant predictor of child abuse later

Incarceration and FR

Incarceration does not affect 15/22 rule, which is a reason to argue for relative placement more vehemently if parent is incarcerated

Case Assessment - role of child advocate

Independent review required Records & interviews: most states allow records to child's counsel; CA allows access to medical, dental, MH, etc, school records, juvenile case file, custody eval reports, release of other docs Independent interview: child & witnesses. counsel for children in CA explicityly have right to interview school, CTs, health care & mental health providers, others w/ access to MI

Filing an appeal

Initiating: file a claim of appeal (as of right) or application/persuasive pleading (discretionary) The record: review, order transcripts (if TPR, everything needed), compel to produce transcripts if not made available Filing: all elements of a brief, incl. std of review (clear error, de novo, abuse of discretion), preserve all issues Supplemental authority: if new case decided after initial brief Answers: shows other side, remind ct that it must defer to trial ct for fac finding Replies: response to answer; no new args Amicus: can be filed on mot granted by ct, after appellee brief

CPS Investigation Process

Intake: assessment re whether report rises to the level of suspected maltreatment -- If everything the caller said is true, does it meet the baseline threshold for abuse/neglect? If yes or maybe, goes to next step. If no, screened out (39%) Initial Maltreatment assessment: evaluation of safety and family functioning: i. did the maltreatment happen? who was responsible? ii. other maltreatment? by whom> iii. crisis/immediate needs addressed? iv. is the child safe and if not, what is needed? v. w/o help, will things get worse? vi. should agency remain involved? vii. referrals? viii. other ways to help?

CW & Divorce

Interaction w/ DV: separation most dangerous for DV victims and abuser more likely to seek custody than non-batterer as a means to control; agency is always more skeptical of abuse allegations made by parties to divorce when no prior allegations If family is already in FL, not priority for agency, will often let the family court sort it out Conclusions of referrals (unfounded, etc.) not that useful when family court case bc CPS likely to closer where 1 parent is the abuser but the other is protective. CPS will also assume family court thoroughly investigated allegations and will be more skeptical of future allegations

Parent Atty - TPR

Inv & analysis: agency must prove by c&c, must be in BI, interview witnesses and adverse witnesses; get all docs Pre-trial motions: MILs to exclude testimony Theory: no reasonable effort/services; bond

Reunification - JT

JT when the child is safe, risk is eliminated (should NOT be the same time as when the child is returned home)

Case plans - increasing likelihood of success

Judge must consider goals, which should flow logically from threats, target issues that influence the threats of danger, parents' reaction. focus on reducing threats/increasing protective capacity

Family law vs dependency

Juvenile court > family court w/r/t custody & visitation Exit orders allow dismissal w/ bridge to protect children while FL makes final orders What if there is a conflict? some states allow atty for child in the related cases

Re-Establishing Parental Rights After Termination

Legal orphans: strict timelines result in legal orphans; children who age out w/o perm home face dire consequences and sometimes FFR is in BI even after a long time Statute: CA in 2005 was first to ask ct for limited discretion to reinstate then others followed suit. Common provisions: whether waiting period req'd, who has standing, duration of trial home visits, role of agency, criteria, standard of evid, effect of reinstating on earlier TPR Parents atty no required to advise, no guarantee of atty after TPR If no statute, parents have tried adopting or getting LG over their own kids

Counseling child clients - Meeting with client

Location: easier to build rapport on child's turf and gives sense of community; should age-appropriate: children in playrooms, teenagers in office Comfortable: snacks, toys; MIs might be more comfortable with parents or transition, but note drawbacks Promise: only promise what can deliver Informative: explain the process to the child, ensure child doesn't feel responsibility for judge's decisions Questions: onus on atty to ensure child's understanding. ask child to say what is happening in own words

Reunification - determining whether to reunify

Look at: status of threats, visits, change in parents, parents willingness to comply, CT observations & willingness to comply with case plan.

MEPA - ICWA

MEPA doesn't apply to Indian children who qualify for tribe membership

Roe v. Texas Department of Protective & Reg Services

MO allowed CPS inside home to interview child. cavity search and pics of genitals outside of consent

UCCJEA

Made explicit reqs of Parental Kidnapping & Prevention Act Who has jx? 1. Home state - where child/parent has lived fror at least 6 consecutive months 2. State of significant connections - other than mere physical presence and substantial evidence available 3. Other states w/ priority declined 4. No state jx State exercising jx maintains it until parent/child no longer has substantial connection there and evidence no longer exists Other states can make emergency orders

Child maltreatment

Maltreatment is a complex group of human behaviors characterized by traumatic interactions b/t parents/CTs and children and can occur whenever the parent's needs overwhelm ability to provide for child Note that caregiving is learned by the experience of being cared for - parents who weren't cared for themselves can be less resilient in dealing with crises (drugs, DV, illness)

Younger v. Romeo (1982)

Man involuntarily confined to state institution had constitutionally protected interest under 14A DP to reasonably safe conditions of confinement, freedom from unrsbl restraints.

IDEA (Individuals with Disabilities Education Act)

Mandates that each child be comprehensively evaluated to ID disabilities req intervention to help child learn effectively. IEP team meets, creates goals, ed-rights holder "IDEA parent" (cannot be agency) presnt

Repping children - conflict w/ 3rd parties

May be conflict if 3rd party pays fees. Some cts allow, MRPC prohibits unless client agrees after consultation, no interference Good idea to get significant trust deposit so party cannot withhold fees to influence

Considerations for ADR

Mediator/Facilitator: should be aware of law Children/youth: should participate if age-approp Timing: Should not be delayed; short-term decisions can be made; confidential but not a place to reveal info that might be discovered Effectiveness of ADR in CW: settlements at all stages, gives place to "be heard" and more likely to be in compliance Advs: share resp, empower parents, incl others, facilitates understanding and compliance; avoid conflict and delay; reduces judicial congestion; avoids lenghty litig Legal rights and safety concerns - parents should be repped, MI's voice heard, child's rep must be able to veto agreements that compromise child safety; judges and sups must be able to review; must clearly state how to enforce and promote permanency

Constitutional Status of Long-Term Foster Parents

Might have some right but any right is secondary to family right and more likely to win if issue is transfer between homes

Immigration & Child Custody

Mixed families are common cts use immigration consideration in custody disputes w/o reason, status says nothing abot a parent' fitness or BI of child

Physical abuse and culture

Most physical abuse begins as punishment that goes too far. Likelihood of crossing the line: lashing out in anger, mental illness, substance use, extreme stress, parent who was physically abused and didn't view conduct as abusive more likely to physically abuse Cultural origins - expecations of children, beliefs about acceptable behavior & methods of discipline

DV & Protective Orders

Most states allow children to be included, civil court can restrict contact but can't increase contact where juvenile court order exists; most recent order enforce

Guardianships as alternative to CPS

Most states allow; less invasive but issue with understanding: parents' rights and LG services

Pre-trial discovery & motion practice

Most states' rules of civ pro apply, some have extra rules/local rules for juvenile court

Battered Child Syndrome

Multiple fractures in different stages of healing

CPS Process - Progress & Closing Case

Must be a case plan capable of completion in a reasonable time. Ask: have parents engaged? meaningful process? MI can be returned when there is risk reduction, case closed when risk elimination. Shouldn't happen at the same time

DP - requirement for trial

Must be trial on state's allegations of unfitness - if no unfit parent, no basis to intervene in family life SC hasn't ruled on what is a fair trial, but states have codified 32+DC = PEO; 18 = C&C

Rapport building

Narrative practice building during rapport building lead to more detailed responses

Emphathy & parenting

Necessary for parent to empathize about child's needs/developmental stages to avoid unrealistic expectations (eg, crying, toilet training). Much abuse stems from parental triggers such as crying, toilet training, or feeding difficulties that parent w/o empathy takes as personal or deliberate

Safety plans

Necessary when child is unsafe (see above) Criteria to meet: controls/manages threats, immediate effect, people and services must be accessible and available; concrete; action-oriented; Can be range: goal to control threats in least intrusive manner (in or out of home)

Child Testimony - Suggestibility - How to reduce

Negative stereotypes and accusatory atmosphere: avoid it, co-witness info (sayingw hat others said) in response to questions leads to similar response Lowering suggestibility: instructions - OK not to know, understand, etc; tell us what "really happened." "If I ask more than once, you don't have to change your answer. I might not remember that I already asked" Listen to what is being asked, no guessing, etc.

Child neglect and culture

Neglect doesn't require fault Poverty itself is not neglect but often usually occur together Usually chronic but not always Challenge of providing care in new land for immigrants/refugees Cultures meet children's needs in different ways

Does the state have a constitution duty to protect children?

No DP right fo rstate protection of a child from a family unless already in state custody

Rights of caregivers other than parents

No SC holding but cases suggest that non-parent CTs may benefit from same protections as parents. See Moore v. City of Cleveland - grandparent

SIJS Factor 2: Viability of FR

No viability of FR with one or both parents, does not require TPR or determination that FR is never possible.

Hearsay Exception - Fresh complaint of rape or sex abuse

Nor in FRE or in state evid codes but most have codified in statutes; not admitted for TOMA so not hearsay; admissible in state's case in chief, victim must testify before fresh complaint admittedl evidence limited to stmt of complaint not details

Stress/toxic stress

Not all stress is bad and children have to learn to cope with stress. When stress is too overwhelming & prolonged, it becomes toxic and child becomes hyperaroused, overreactive, difficult to sooth

Reqs for IEP

Not all who struggle need IEP. eligibility = disability + req specialized instruction School eval w/in 60 days of consent by IDEA parent, free copy, if not appropriate can ask for eval and DP hearing if school disagrees; re-eval min every 3 years. Elements: levels, affect of disability, measurable goal, how progress is measured, services to be provided, modification, staff supports, accomoodations,

Repping children - conflicts between siblings

Not per se conflict. ABA MR 1.7(a): 1. directly adverse or 2. different outcomes and rep of one will 'materially affect your ability to rep the other' ABA MR 1.7(b): even if conflict, may rep if atty beleives competent and diligent rep to client, rep not prohibited by law, rep does not invovle assertion of one against another, consent n writing

Timing of reunification

Note importance of time for secure attachment - time is of the essence; moving children can be harmful, needs clear safety reason or diagnostic purpose Safety - first issue; if safety has been addressed, reunification must encompass need for continued support

Parenting & intellectual ability

Note lack of evidence connecting intellectual disability to parenting ability

Systemic Issues and their Influences

Note that some circumstances and difficulties faces are due to systemic factors (racism, discrimination, poverty, isolation) and a family's situation can look very different based on these factors. Ex: family rendered homeless due to predatory lending or family fleeing war in Syria - their lives and actions (homeless, excessively protective of daughter) look different now from before the change in circumstances

Most difficult parents to treat

Note that this is based on research from 1980s 1. families will not change, don't want to 2. deny despite evidence 3. have will to change but can't, sometimes due to resources 4. can change but not in time for the child's developmental needs but might change for next child 5. other factors: severe childhood abuse, persistent denial of behavior, severe personality disorder (inability to recognize and respond to needs other than their own), schizoid or antisocial personality) 6. dual-diagnoses **Note that some parents fail to respond to one treatment and will succeed with another

Special Ed - Dispute resolution

Notice: of refusal or proposed change Mediation: free, voluntary, impatrial mediator w/ written agreement. DP hearing: file complaint, violation no more than 2 years prior, med req'ed before, trial-like w/ evidence and witnesses; result can be services requested, comparable services, atty fees; foster child gets lawyer b/c agency usually has one Complaint of DOE: parent or agency can file complaint alleging violation, money or comparable educ; 60 days to decide State/Fed action: challenge admin hearing outcome - POE and great weight to admin

Child Development - Goals

One major goal of child welfare is to reduce minimize impact of adverse childhood experience and maximize potential of achieving appropriate milestones. Attys should be aware of milestones and affect of adverse experience on same.

Deliquency & Privacy

Only a few states keep juvenile court records completely private. Some states have automatic expungement, others have a long, complicated process. As atty, look for ways to do seal/expunge

Parental rights of unwed fathers

Only some unwed fathers have constitutional rights as parents. "Biology plus" - bio connection + involvement = rights (Lehr)

Permanency - post-adoption contract

Open adoptions: allows for voluntary contact, usually for older children, special needs Post-adopt Ks State laws - in writing, enforceable, outlines frequency and form of contact (BPs or relatives); 28 states & DV have open/cooperative adoption laws, APs must agree; CA limits to adoption by relatives; several states req consent of child Benefits: passage of ethnic/heritage; medical info; emo ties Pitfalls: BPs were abusive, no real ties with BPs, BPs can take child Is it appropriate: only if it will meet child's needs; not for convenience Elements of success: all agree that contact should occur and type, manner, frequency Enforcement: approved by ct w/ jdx, BI of child; terminated if parents agree or not in BI; 9 states + DC req. mediation before term

Best practices for repping children

Org structure: better if there is admin structure w/ accountability (like CLC) for support, continuing ed, training, etc, which is not the norm Multi-disciplinary approach: lawyer + social worker; significant impacts include quicker resolutions for some cases and better preservation of family ties Certification

"Child savers"

Origins of the child welfare. Believed they could save children from life of destitution by taking them from poor families, but many grew up in harsh environments, without family and there was no due process. Hx of child savers teach us that we need sympathy but that we also need fair processes

Emergency removal/detention

P/F to detain, can be ex parte & hearing required w/in 24-72 hours; some states allow relatives to intervene, some only for palcement; state has duty to make reasonable efforts to prevent or eliminate removal, case plan w/in 60 days

Adjudication

PEO (C&C for ICWA). person to be appt for child Tho not required by fed law, most states provide attorneys for indigent parents

DP & non-offending parents

Parental custody factored even by non-custodial parent In re DS: parental presumption applies at dispo and ct could not place a fit parent's children in FOCA over objection unless C&C that BI would be served by placement elsewhere States have different rules

Prince v. Massachusetts

Parents do not have the right to harm children in the name of religion

FERPA (Family Educational Rights and Privacy Act)

Parents have access to children's records; others do not w/o proper authorization. Parents can disclose. Rights transfer to student at 18th bday

Meyer, Pierce & Prince together

Parents have fundamental liberty interest in how they raise their children, which is protected by the 14th DP clause; state may infringe only for compelling reason and only insofar as the infringement is necessary to pritect the state's interst

Educational neglect

Parents must send kids to school, home school OK - but note different laws in different jurisdictions

Constitutional right to counsel?

Parents: no but most states provide it Children: no

Legal Framework for MH Commitment

Parham v. JR: GA statute allowed child to be admitted for observation and diagnosis; if hosp superintendant found evidence of mental illness and suitable for treatment, could be kept as long as law allowed. Parents have dominant/substantial role in decisions absent neglect or abuse, presumption that parents act in BI of child Holding: 14A does not require a ct hearing prior to parents or the state committing a child to psychiatric hospital

Bruce Perry and the Childhood Trauma Academy (Neurosequential Model)

Part of the brain the controls physical life functions develops first, then emotions, then cognitive

Testimonial Competence - BOP

Person challenging has the burden to prove incompetence, must make timely objection, failure to object timely results in waiver unless plain error; if in jx where child is presumed incompetent, burden is on proponent

Indicators of developmental issues

Physical easier to measure. Not absolute: kids develop at different rates and there are some cultural differences, but should be aware of when dev. milestones aren't reached (not responding to sounds, not smiling, not walking, speaking at certain ages etc.)

ICWA - Adoptions

Placement preferences apply - extended family, tribe, other Indian families

Permanency - Subsidized Guardianship

Poss unused due to lack of funding; FCA provides funds to rel LG like the adoption subsidies & medical Eligibility: 6 consec months in home, strong attachment, return not approp, BI, adoption not approp LG best when: 14+, not w/ relative, BI, parent cannot care but TPR not desired

Context of child welfare

Poverty = higher risk of poor outcomes; 21% but higher considering cost of living Race: overrepresented, more negative outcomes

Child abuse & poverty

Poverty associated w/ physical abuse and neglect more strongly than sexual abuse; sexual abuse reported from all classes

Bellotti v. Baird (1979)

Pregnant girls cannot be reuqired to obtain parent consent for an abortion without providing girls a hearing as to maturity to make decision w/o consent.

Risk factors for abuse

Present in combination in most confirmed cases of abuse, but note that observations are clinical rather than from controlled research - issues re how parent was cared for - crises in the home - feature or behavior of the child that triggers the parent or falls short of expectation - isolation from support

Title IV-B

Preventing and responding to child maltreatment (i.e. before removal) Coordinate w/ community based agencies Protect & promote welfare, prevent abuse, support at-risk families Agency must show substantial, ongoing, and meaningful collab w/ state courts in implementing plans

Family Group Decision-Making Processes

Principles: - children best raised in families - primary resp to care for child is w/ family - family grps can make safe decisions & are experts on themselves - family empowerment = self-determination - prof share decision-making authority w/ fam - core elements: independent coordinator, family as key decision-maker; family can meet on its own and preference given to family's plan when concerns are addressed Structure: - coordinator decides to hold FGC - Planning - Conference - Writing/implementation of plan

Hearsay Exception - Prior Inconsistent Stmts

Prior inconsistent stmt: different story prior to testifying, admissible as impeachment; for TOMA only if prior stmt made under penalty of perjury

Hague Abduction Convention & ICARA

Procedures and remedies for obtaining the return of a child who has been wrongfully removed from or retained in a country other than the state of habitual residence; addresses which country has the right to make orders re custody, not the custody issues Countries provide counsel for aggrieved parents Must file w/in 1 yr to prserve remedy of automatic return

Agency Representation - Prosecutorial Model

Prosecutorial: the client is the people/state; attorney is DA or similar, usually elected. Has discretion to initiate an action on hehalf or of request of agency Cons: community should not decide these issues; agency w/o a voice; lack of specialized knowledge; no atty-client privilege Pros: checks & balances, atty doesnt' have to take all direction from agency

Qualified Immunity & CPS Workers

QI if CPS performing discretionary functions of their job and conduct doesn't violate clearly est statutory or constitutional rights

child maltreament - fault

Question is not fault but whether parent has competency to provide minimally adequate care for the child & focus should not be on the underlying crisis but on parent's response (not mental illness itself but how parent reponds)

Parent Atty - Review Hearings

Read info, contact providers for update in writing, ask for return when risk eliminated - child not vulnerable or parent has protective capactiies; focus on progress. RE

People v Jackson

Recognized battered child syndrome as medical diagnosiss and legal syndrome

Sex abuse & religion

Religion can create settings where offenders can hide their acts and abuse can occur over time, unchallenged. Isolation or boarding school can also make children feel like they have no one to confide in

Physical abuse and religion

Religious texts sometimes used to justify abuse (getting rid of evil). Victims of religious-based abuse suffer higher levels of psych symptoms (depression, anxiety, hostility, paranoid ideation)

Appeals - Oral argument

Request: allows persuasion, clarification, answering Qs How to prepare: research judges to help frame arg, read everything again, schedule moot ct session How to present effective arg: short, catchy intro; no new facts; address bad facts; listen; don't pospone answering; admit not knowing and offer to research; focus on 1-2 args; answer question then transition back to arg; end strongly After oral arg: get decision and share w/ contact; consider reconsideration if incorrectly reached decision, misconstrued an arg, made mistake

ADA

Requires that public bodies make reasonable efforts to accomodate people w/ disabilities. As it doesn't direcly apply to CW, does not bar proceedings to TPR, but some courts have held that reasonable efforts = reasonable accommodations

Prince v. Massachusetts (Religion)

Right to practice religion freely does not include liberty to expose the child or the community to communicable disease or child to ill health or death

Safety vs. Risk

Risk: structure tool, looks at strenght and unmet needs Safety: current danger - "here and now"

Jehovah's Witness in State of Washington v King County

SC - constitution does not forbid finding of medical neglect when the parents' religiously motivated failure to provide medical care seriously endangers the child

Special Need & Self-Sufficiency Trusts

SNTs-for disabled use when assets from employment or inheritence exceed SSA limit; can be created by parent, LG, CT for anyone under 65 and must repay medicaid SSTs - don't require disability or mental illness; ct sup and trustee appt

Frye Test

Scientific evidence is admissible if based on theory that is generally accepted in its field, and mental health testimony is usually readily admitted, but this is problematic in CW because there are generally accepted assumptions that aren't scientific (MH = dangerous) **Note that states can adopt Frye/Daubert

Child sex abuse & culture

Secrecy, grooming, shame universal & in no cultura is sex abuse normalized, but cultural factors affect chances of being discovered, disclosed, and how it's treated

4A - Exigent Need Exception

Seizure allowed if rsbl cause to eblieve immediate danger

Mandatory Reporting

Set by state law: some states require anyone to report regardless of profession, some states incl. retalives as mandated reports Liability for false reports: tort action in some states

Treatment for parents in sex abuse cases

Signs of poor prognosis: pedophelia, violent sexual fantasies, lack of empathy or failure to see child's needs or sexual desires separate from own, failure to thrive, vaginal or anal intercourse, sadism

Emergency protective custody during investigation

Some states allow this. 24-96 hours for judicial review; manyt allow CP and LE to enter home if imminent danger and to interview child at school w/o parents notice

Child safety - threats of danger

Specific family situation or behavior that is: i. specific, can be observed, described ii. out of control iii. immediate or soon iv. severe Factors to consider: would threats exist if returned? who are parents/family? would threats exist if absent abuser returns

Meyer v. Nebraska (1923)

Stand for idea that parents' family rights are fundamental liberty interest and entitled to constitutional protection. Parents had constitutionally protected interest in educating their children as they see fit (in this case, teaching them German)

Do children have a constitutional right to live with their parents?

State & lower federal courts suggeste that children have right to live w/ parents and cannot be removed w/o DP DC Cir. said that children and parents enjoy reciprocal rights to one another's compansion and another case says children ahve fundamental liberty interest at stake in TPR

DeShaney v. Winnebago County Social Services

State doesn't have a duty to protect a child not in its custody. 14A doesn't require state to protect citizens from private conduct that is not attributable to agency employes. Duty to pritect arises not from knowledge of predicament or intent to help, but from limitation it has imposed. Here, no liability when agency was observing MI in home and MI was then beaten

Prince v. Massachussets (1944)

State has wide range of power for limiting parental freedom and authority in things affecting childrne's welfare - law prohibiting girls under 18 from selling magazines in a public place upheld over religious liberty challenge by aunt

Lehr v. Robinson (1983)

Statute allowed unwed FAs to acquire legal rights and object to adoption by signing up on putative FAs registry. Upheld bc FA had ample opportunity to put himself in a position to be noticed & didn't

Caban v. Mohammad (1979)

Statute requiring only MO's but not FA's consent to adoption of a child born out of wedlock violated EP clause. FA was entitled to notice & hearing but to prevent adoption had to show it was in MI's BI. Distinguisable from Quilloin bc of FA's involvement with MI H: if FA involved in children's upbringing, const right and parents treated equally

Expert Testimony - Qualifications

Sufficient knoweldge, skill, expertise, training or education - unless clearly unqualfiied, deficiencies go to weight, not admissibility State v Best: Expert need not be expert in every aspect of a field Deese v. State: Pediatrician offered opinion as to cause of death. Ct held that admission of the testimony OK when expert, altho not specialist, nevertheless could assist the jury in light of the witnesses's formal ed, prof'l training, personal observations, actual experience

Daubert Standard

Superseded Frye Test in fed ct: expert testimony admitted based on whether the methodology behind it is scientifically valid and can be reliably applied to the facts - focus more on reliability and validity than general acceptance **Note that states can adopt Frye/Daubert

Syndrome Evidence

Syndrome = set of symptoms which occur together, may have "diagnostic value" (pts w/ some degree of certainty to a particular cause or etiology); ability to reason backwards from symptoms to etiology is "diagnostic value." **Nearly all psych syndromes that we deal with in child maltreatment lack diagnostic value

Permanency - Guardianship

TPR not needed Judicially created permanent rel b/t child and CT; self-sustaining; LG has rights of protection, ed, care, custody, control, decision-making Lgs should be ppl not agencies and ct should JT unless subsequent motions to consider CA, DC, MI, RI: judge in CW case can order (create) LG Parents retain obligation to support if they can; parental rights in fact and can ask to modify or term LG

Wisconsin v. Yoder (1972)

The Court ruled that Wisconsin could not require Amish parents to send their children to public school beyond the eighth grade because it would violate long-held religious beliefs.

Cultural competence

The ability to understand world views, experiences, and needs of people from other cultures and adapt our work accordingly

Definition of emotionaal/psychological abuse

The habitual harassment of a child by disaparagement, criticism, threat, and ridicule

Michael H. v. Gerald D. (1989)

The right of a potential natural father to assert parental rights over a child born into a woman's existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Dealt w/ CA evidence code that chidlren of wife cohabitating w/ husband are conclusively presumed to be child of marriate

Repping children - ethical responsibility

The same as to an adult, unless the state provides an exception

Assessing vulnerability

Threat + vulnerable = unsafe Consider: age, cognitive abilities, developmental status, emotional security, family loyalty Characteristics: inability to self-protect, suspecpitibility, 0-6, disabled, isolated, inability to judge danger, provokes, poor health, fraily, emotional vulnerability, impact of prior maltreatment, feelings toward parent, attachment, ability to articulate danger

Hearsay Exception - Impeachment by Contradiction

Tiggers rehab w/ PCS especially when fabrication implied

Investigating Child Maltreatment

Time frame: based on priority, 1-24 hours for high priority; lower priority several days; under 3 usually higher priority Risk & safety assessment Investigation: collect info, pictures, interviews "Founded" vs "unfounded" labels not that useful - can be different reasons for label, like family not found or not enough evidence. Different standards in different states

Admin Appeals - Benefits

Title IV-E - "fair hearing before the state agency to any indiv whose claim for benefits...is denied or not acted upon w/ rsbl promptness. Also applies to IV-B funding Hearing for: failure to provide pre-pcmt preventative services, FR, not placing child in most family-like setting close to parents, parents not informed of rights, denied service request, terms of adoption agreement Res judicata applies and issues not raised are waived

Transportation to School/Stability

Title VI-E allows money for transport to SOO ESSA requires local ed agencies to have plan for keeping kids in SOO and if not, how transp will be arranged and funded. Uninterrupted Scholars Act - access to records

FCA - Extended Foster Care

Title VI-E funds for 18-21 if: high school or equivalent, college or vocational ed, program to gain employment, employed, or can't do the above due to medical conditions

Parent Attorney - Responsibilities at Trial

Traditional trial practice: prep client for testimony, decide whether will testify (consid whether criminal case pending), present theory of case and preserve issues for appeal Theory of case: tell a story, address good and bad facts, will guide tactical decisions Preserve for appeal: know matter of right and extraodrinary writs, write MILs

Types of forces

Transverse/greenstick: bending or direct impact from hand or other blunt object spiral/oblique: twisting/torsion metapheseal: shaking/pulling at end of limb **most common for abuse: metaphyseal, ribs, battered child syndrom

Issues for parents counsel

Trust: difficult to develop - disadvantaged pop, hostile/confrontational bc of accusations, appt by same ct that approved removal & atty thought to be part of the same establishment - make sure to explain loyalties to client, relationships w/ other attys, listen, validate, open-ended questions, ask about family, meet away from court Goals: Help est realistic short/long-term goals, must provide objective advice, decide if focus is past (allegations) or future (reunification) will determine tactics; explain that it is in parents' interest to work with CSW Agency burden **Parent attorney must advocate for parents' position, not "what's best."

UN Conventions & Protocols

UN protocol to prevent, suppress, and punish trafficking in person

RIghts of Juveniles to Waive Rights, Make Med Decisions

US SC: juveniles can waive const rights, "mature minor" can make med decisions w/o parental consent. attorney should explain consequences of waiver Capacity MR 1.14: balance ability to articulate reasons for decision, appreciate consequences, fainress, consistency; can be in consultation w/ doctor If child is old enough to understand confidentiality, should be included in consent

UN Convention on the RIghts of the Child

US Signed in 1995, not ratified yet, includes rights of children

Parham v. J.R. (1979)

Upheld a Georgia statute allowing parents to commit a minor child to a mental institution for treatment in the absence of a formal or quasi-formal hearing to safeguard the child from arbitrary commitment. Didn't address whether FOCA kids needed more protection because they didn't have parent advocating for them

Case plans - evaluating progress

Use safety criveria: behavioral, emotional, and MH changes Judges must consider: what do parties know, status of threats, protective capacities, differences in opinions, whether conditions for return are met; in-home safety plan can be revised to be less intrusive

Interviewing in Court

Use same strategies; questions not related to allegations can be useful in assessing competency and credibility, though open-ended questions run risk of irrelevant or prejudicial answers Facilitators (uh huh, ok) increase productivity

Initiating Court Action

Usually initiated by agency. Some states allow private agencies or individuals to file on behalf of a child

Psychological abuse - proof

Varies by jx some states focus on physical manifestation (Shane T - stomach twisting) some states require testimony by physician or psychologist

Methods of physical discipline and abuse

Vary by race, culture, religion, national origin AA: whips - electrical cord, belt, switch white: paadles, wooden spoon, open hand to bottom Latina/Asian/African: Kneel on rice Children born into cultures that were victimized by colonialism/slavery often face severe punishments bc parents have inherited a cultural tradition that prepared them to face the harshness of their master's/colonizer's rule

Confidentiality of Health Records & HIPAA

Violation of HIPAA has substantial consequences. New release needed after expiration date; if no new release, need court order and show that rsbl efforts to notify where made before subpoena or court order; Exceptions: disclosure of disease, covered entity may use PHI for payment, court orders

Vulnerable Child & Safety

Vulnerable child is safe when: no threats of danger w/in family, parents possess sufficient protective capacity Child is unsafe when: 1. Threat of danger exists 2. Children vulnerable to such threats 3. parents possess insufficient protective capacity Conclusion about safety means: 1. how soon may something occur? 2. how severe would consequences be? 3. how out of control are the conditions?

Reunification

What are the conditions for return and how are we going to get there? Standard to return is higher than for initial removal. Central issues: program completion and no safety threats NOT necssary before return. look at: is there change in threats, circumstances, protective capacity?

M.L.B. v. S.L.J. (1996)

When indigent parent appeals TPR, 14A requires that parent be provided record of sufficient completeness to permit proper appellate consideration of her claims (MO could not pay $3000 for record)

Safety plans - out of home

When out of home, parties must inform the court of why in-home safety plan cannot work as part of demonstrating reasonable efforts. Visitation: immediate contact b/t child & family, not cookie cutter Components of visitation: face-to-face at least weekly; at least monthly w/ sibs Conditions of return: clear objectives, reviewed every 6 months

Sex abuse - evidence

When physical evidence does exist, can be abrasions, lacerations, STDs, but can be no physical evidence and can have no psychological trauma due to child not understanding Lack of physical evidence not probative but existence of such evidence is probative. Accidental injuries will be to more exposed body parts

Parents involvement in treatment of abuse

When possible and clinically indicated, parents should be involved in treatment for children - TF-CBT, CPP, PCIT (2-7), AF-CBT (Alternative for Families: A Cognitive Behavioral Therapyt) (5-17)

Child Testimony - Suggestibility - Authority Figures

When questioned by authority figures, greater risk of child going along with the suggestion

ICWA placement preferences

When state courts retain jurisdiction they must follow ICWA placement preferences, which are: (1) members of child's extended family, (2) other member of child's tribe, then (3) other Indian families. If deviates, must be for good cause and C&C of diligence search

4A - Consent

Whether consent is valid depends on facts. Threats or arrest and removal can be coersion; can also be issues with scope of consent - interviews vs. home search

Transitioning youth to post-secondary

Youth engagement critical Ensure participation in extra curriculars, etc. FCA - reimburse state for cost of placement & services for 19-21 (state decides) - in school, working or in program to remove barriers, incl. dorms, apts. etc if age appropr FCIA:tuition, tutoring, ed planning, financial aid, expenses ETVs: $5K for post-secondary ed/training College Cost Reduction Act: foster children considered indep for financial aid purposes Higher Ed Opportunity Act: fost kids automatically eligible for TRIO programs - talen search, Upward Bound, GEAR-UP

Role of Parents' Counsel

Zealous advocate, loyalty, rsb diligence and promptness, confidentiality, joint decision-making. Parent has ultimate authoruty to determine goals but atty decides how to accomplish

Post-TPR Review Hearings

adequate services to the child, realistic placement pursued, ed stability, sib contact

Another Planned Permanent Living Arrangement - APPLA

agency must document compelling reason for this plan bc least favored; must be planned and permanent (not the same as FOCA, which is not stable or permanent; not same as emancipation, which is disfavored); must meet child's needs now and in future

Uninterrupted Scholars Act

allows disclosure of ed rights by institution to agency w/o parent consent if for the care and protection of the student Also allows school to provide docs to agency/tribal rep if addressing ed needs

funnel technique

asking general questions before specific questions in order to obtain unbiased responses 1. Ask child to tell story from start to finish w/o interruptions 2. open-ended questions to clarify & fill in (repeat child's words, avoid negatives) 3. Direct attention to specific facts for further clarification

Agency Atty Responsibility - Con law

atty must advise of limits in intervening with famil life, responsible for agency's compliance. Agency should consult w/ lawyer before removal to consider alternatives, RE, etc., given 14A rights of parents

Child's role in case assessment

be transparent about role w/ client legal interest v BI Determine child's position 1. open-ended questions 2. interview sibs separately

Failure to thrive

born w/ normal weight, does not gain weight or develop normally. parents must seek medical attention and follow through

Repping Children - Waiver of Rights

children may not be competent to sign and waive conflicts and privileges, state law not developed in this area. Law suggests that no one can enter a waiver on behalf of the child but ct can appoint GAL to make sure waiver is approp - no bright-line test for determining capacity - US SC has held that juveniles may have capacity to waive con rights in delinquency context - Critical question: Does the child understand the consequences of the waiver?

Appeals - State Supreme Court

consider if significant issue, split in case law, issues of first impression; consider US SC petition for writ of cert if don't prevail at state level or state SC won't hear it, but must present Q of fed law

ICWA - TPR

continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Must QEW and AE

Chafee Foster Care Indep Act of 1999

extended assistance until 21; programs (job placement, HS, vocational training), financial, housing, counseling, educ for fmr foster youth up to 21; extended medicate

TPR

fed law requires TPR for kids in FOCA for 15 of 22 most recent months, abandoned infants, parent killed sib, egregious situations State can choose no TRP if child w/ relative, compelling reason that not in BI

Abusive Head Trauma (Shaken baby syndrome)

head injury from violent shaking expert should be able to describe other diagnoses considered, why ruled out, and why final diagnosis of abuse was given

Parenting capacity eval - limits

i. MH diagnosis cannot support conclusions about parenting abilities ii. cannot compare to universal standard iii. no conclusions about psych measures that don't directly affect parenting iv. cannot rule out environmental factors v. cannot predict future behavior w/ certainty vi. cannot answer questions not asked by referral source

Burns - signs of abuse

inflicted burns are more severe and more distinct for accidental, will have severe burn at point of impact and then less so, more likely to be on face, arms, upper trunk, underside of chin & armpit. Other burns indicative of abuse immersion burn: "donut" pattern, where parts of body not burned because held against cooler areas

Definition of sexual abuse

involvement of dependent, developmentally immature children and adolescents in sexual activiites they do not fully understand and which they are unable to consent

Sex abuse - defined

involvement of dependent, developmentally immature children and adolescents in sexual activities they don't understand, unabe to give informed consent, violate social taboos re family

Camreta v. Greene (2011)

issue where child was interviewed at school about sex abuse, kept for 2 hours and pressured into agreeing w/ allegs. Child retracted when interview over

Recovery from Trauma

keys: safety, supportive adult, self-regulation skills, strength-building

FCA Case Study: CA

largest foster youth pop in country AB12 - Fostering Connections to Success Before 2010, Court could extend services past 21 if BI but never used Eligility same as FCA 18+ = NMDs and can choose to stay Re-entry allowed SILPs - counties have discretion as to what qualifies; dorms don't need pre-approval & out of state OK; monthly F2F if no ICPC in place THP-Plus-FC provides more services than sSILP, outlined in TILP (for kids not ready for SILP) Phased on - started w/ 19 in 2012 and up to 21 in 2014 Issues: large participation, delayed due to licensing, lack of financial literacy, needs of EPY and issues w/ complying w/ AB12. predatory post-second institutions

Cultural literacy

learning about groups of people who differ from us and trying to understand their perspectives; giving up the color blind notion and instead adapting to the needs of a particular client

Prenatal drug use

most immediate: addiction and withdrawal in babies long term: deformities, developmental, behavioral FAS: unknown how much alcohol causes it; diagnosis based on physical features and developmental abnormalities

Psychiatric hospitalization & foster children

must be least restrictive, most family-like setting, close to parents' home, amendments to case plan req court approval, notice, and hearing CA requires child consent for locked facility

Adoptive Couple v. Baby Girl

non-custodial parent who has abandoned child or never had custody, not due AE or heightened standard of evidence to TPR

Definition of physical abuse

nonaccidental injury as a result of CT acts, incl. shaking, slapping, punching, beating, kicking, biting, burning

Fostering Connections Act

promotes attendance and stability, agency has to incl. in case plan how ed will be stable, agency commitment to consider school proximity to placement. Drawback is that only the agency was accountable

Federal Fostering Connections to Success & Increaing Adoptions Act (FCA)

provided uncapped matching funds to states that choose to extent FOCA eligibility past 18; 5 categories of participation (HS, college, work, program to remove barriers, incapable), payment for indep living settings (states decide what counts), can pay all or part directly to youth

State Children's Health Insurance Program

provides medical care for children whjo are ineligible for Medicaid b/c family income is too high but lack insurance

open-ended questions

questions that allow respondents to answer however they want - ex: What happened? Tell me more" Pros: - elicit more details - lead to multiple-word answers and can help interviewer detect incomprehension - minimizes suggestiveness - reduces incomprehension bc children are using their own words Rule of thumb: what and how questions are more useful than questions that as for descriptions

Psychological abuse - defined

repeated pattern of damaging interactions b/t parents & child that becomes typical of the relationship and occurs when they perp conveys to victim worthless, unloved, etc, or only value is in meeting others' needs.

IDEA (Individuals with Disabilities Education Act) - records

subject to FERPA, parents have the right to inspect and review IDEA records and consent to release. Parent = natural, adoptive, foster, guardian, acting parent, surrogate parent

Co-factors in abuse

substance abuse, severe parental mental illness (untreated & severe post-partum depression is particular area of concern given significant risk to baby)

Standby Guardianship

terminally ill parent can transfer decision-making authority, designated person steps in when "triggering event" occurs (death, mental incapacity, debilitation, consent)

Temporary Assistance to Needy Families (TANF)

time-limited cash assistance to low-income families w/ chidlren - work requirements, some school supports

Case plans

w/in 60 days, new fed law req 14+ kids to be participate, child can have 2 members of case team participate Must address needs of child & deficits of parents

Treatment for abuse - evidence-based practices

well-developed treatment manuels, established training protocols for clinicians, ongoing assessment of clinical fidelity, tied to specific treatment goals But note that lable of EBP does not mean it will fix problems and lack of EBT label doesnt automatically mean that an intervention is without merit