Confidentiality and System Accountability

Summary

Confidentiality plays a pivotal role in child abuse proceedings. In order for the system to work, mandated reporters need to feel secure in making allegations, children need to be protected from subsequent abuse and families need to be shielded from unwarranted public scrutiny. However, blanket provisions for confidentiality do not always promote the best interests of child victims and their families. Child protective agencies, medical providers, law enforcement agencies and even schools routinely report having problems in getting information from one another about the children they are jointly serving.

What Policy Can Do

Abused and neglected children can benefit from an environment of openness and a system that provides for thorough sharing of all information potentially relevant to the child or case at issue, including but not limited to records that might otherwise be considered confidential. Under the Child Abuse Prevention and Treatment Act (“CAPTA”), states must provide otherwise confidential child abuse and neglect information to “any Federal, State, or local government entity, or any agent of such entity, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect” and to child abuse citizen review panels. CAPTA also requires states to disclose information about child fatalities or near fatalities that resulted from abuse or neglect to child fatality review panels and to the public upon request.

According to a 2010 report by the United States Senate Committee on Health, Education, Labor, and Pensions, not all states were in compliance with CAPTA’s mandatory child fatality and near fatality disclosure requirements. State compliance with these provisions is important because public disclosure of child fatality and near fatality information increases the accountability of Child Protective Services and can drive necessary reform. Also to that effect, court hearings and records related to child abuse and neglect should be open whenever possible. CAPTA allows states to have open court policies so long as the policies protect the safety of the children and families involved in the hearing. : Currently, only 22 states permit open courts – Alaska, Arizona, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Utah and Washington.

Legislative Objectives to Benefit Children

  • Promote Open Courts
    Child dependency courts should conduct open proceedings with judicial discretion to close any hearing or a portion of a hearing if circumstances exist that would jeopardize the safety of the children and families involved in the court proceeding or other good cause is shown.
  • Provide Information to Advocates
    Specifically, provide attorneys and others representing children unrestricted access to court records; give attorneys and others representing a child timely access to the child’s records; and encourage child advocates in each state to develop standards for open records.
  • Provide Information to Parents and Providers
    Make records available to parents, foster parents, agencies, and attorneys and others representing, protecting and serving the child with no intrastate or interstate barriers to sharing information.
  • Permit Agency Access to Information
    Assure that information affecting the child’s safety is provided to the child protection agency with no intrastate or interstate barriers to sharing information.
  • Promote Public Accountability With Information
    Assure that information is used to analyze the performance of child protection agencies and promote reform through public education.
  • Eliminate Barriers to Information Posed by HIPAA
    Local misconstruing of HHS privacy rules under the Health Insurance Portability and Accountability Act (HIPAA) – and failure of the rules to have clear exceptions for child protection case situations – hinders information access for advocates, courts and service providers.
  • Confidentiality, Accountability and Information Sharing in Cases of Child Abuse and Neglect
  • I. Any court, agency or individual with legal responsibility for the care of a child with an open child abuse/neglect case has a right to information about services provided to the child and family, the progress made as a result of those services, and the prognosis for their achieving successful functioning.
  • II. Juvenile court hearings in child abuse/neglect cases should be presumptively open, with judicial discretion to close based on the best interests of the child or the child’s family. Twenty-two (22) states now permit such “open courts.” The media shall follow professional standards of ethics to ensure the privacy of juveniles and their families involved in these proceedings, including the withholding of identifying information.


Foster Youth Financial Security Act

First Star, and the Child Advocacy Institute (CAI) support this initiative.  Thorough background information is found in the full text of The Fleecing of Our Foster Children.

This bill is a re-introduction of H.R. 6193 (111th) (Sep. 23, 2010). It has been referred to a congressional committee on September 25, 2011, which will consider it before possibly sending in on to the House or Senate as a whole.

Children in foster care have already suffered abuse or neglect at the hands of their parents. While in foster care, many children are again victims of identity theft or credit fraud that impairs their ability to gain housing or employment after transitioning out of care. In addition, youth transitioning out of care often lack the most basic documents and tools necessary to achieve independence. To strengthen the financial security of foster youth and to empower them to make responsible financial decisions as adults, the Foster Youth Financial Security Act contains the following provisions:

Protection against Identity Theft & Credit Fraud. Foster children are disproportionately victims of identity theft because their personal information passes through many hands, increasing the chances that someone will open an account in their name or use their Social Security number (SSN). This bill would require that all foster children have their credit reports reviewed, and cleared if there is an inaccuracy, prior to leaving care. It would also end the use of a child’s SSN as an identifier. Currently, there is no available data on how many children have been affected by identity theft; this legislation will track the number of stolen identities by state. The bill allows the states to obtain assistance from both the Department of Health and Human Services and Federal Trade Commission to protect their foster youth against this fraud.

Toolkits for Financial Success. There are a number of basic tools that every person needs to get started in life as an adult — copies of their birth certificate, a driver’s license or state-issued ID, a bank account, health and auto insurance, and perhaps a student loan. Foster children often leave care without these important documents and tools that they need to begin their lives and follow their dreams. This bill would ensure that they leave foster care with the necessary documents. It also will help them apply for state benefits and financial aid, will educate them about obtaining health and auto insurance, and will provide them and any interested caretakers with financial literacy courses.

Creating Individual Development Accounts. Individual Development Accounts (IDAs) are savings accounts to help low-income families and other vulnerable groups save for specified purposes. Certain states and nonprofit organizations have set up IDAs specifically for foster youth, but this practice is not uniform. This bill would provide modest financial seed money to set up IDAs for foster youth so they leave care with a small nest egg to cover the first costs of specific items such as housing, education, and job training.

One mechanism to coordinate and deliver assistance post-18 is the creation of trusts by the juvenile courts who have served as the parents of these kids to that point. Under a plan such as the Transition Life Coach proposal of the Children’s Advocacy Institute,118 state assistance could combine with existing resources to produce the average $50,000 that private parents provide to their post-18 adult children; such an option allows the court as parent to stay involved, monitor progress and issue orders to third parties if necessary and appropriate. It also allows the youth to have a say in the plan authorized by the trust (the trust agreement), allows personal mentoring by the appointed trustee and allows for coordination with all of the other sources of assistance to maximize self-sufficiency. Like the support offered by typical private parents, assistance under such a plan need not stop at age 21. D. Budget and Deficit Reduction Considerations During 2011, the Congress is expected to contemplate cutting benefits and scaling back funding for programs that impact foster youth and youth aging out back to 2008 levels or worse. While these developments pose new challenges, advocates can take action to fight for the rights and security of foster youth through coalitions and with effective grassroots advocacy. Now, more than ever, advocates for children across the country must come together to fight any proposed cuts to services that benefit foster children and work towards helping these children, our children, more towards a future full of possibility.


Legislative Updates

113th Congress

S.1754 – Higher Education Access and Success for Homeless and Foster Youth Act

  • A bill to amend the Higher Education Act of 1965 to improve the financial aid process for homeless children and youths and foster children and youth.
  • Sponsor: Senator Patty Murray; Co-sponsors (2)
  • Introduced November 21, 2013
  • Referred to the Senate Committee on Health, Education, Labor and Pensions

H.R.102 – Rehab and Ahmed Amer Foster Care Improvement Act of 2013

  • Sponsor: Rep Conyers, John, Jr. [MI-13] (introduced 1/3/2013)      Cosponsors (2)
  • Latest Major Action: 1/3/2013 Referred to House committee. Status: Referred to the House Committee on Ways and Means.

SUMMARY AS OF:  1/3/2013–Introduced.

Rehab and Ahmed Amer Foster Care Improvement Act of 2013 – Amends part E (Foster Care and Adoption Assistance) of title IV of the Social Security Act to revise requirements that states must follow to contact the adult relatives of a child removed from the custody of his or her parents.

Requires the state, within 90 days after making a placement decision, to provide notice of the decision and the reasons for it to each parent of the child, each relative who has expressed an interest in caring for the child, the guardian, and other specified parties.
Requires the state to establish procedures to: (1) allow a person who receives such a notice to request documentation of the reasons for the decision involved, (2) allow the attorney for the child to petition the court involved to review the decision, and (3) require the court to commence such a review on the record after receiving such a petition.

H.R.225 – National Pediatric Research Network Act of 2013

  • Sponsor: Rep Capps, Lois [CA-24] (introduced 1/14/2013)      Cosponsors (10)
  • Latest Major Action: 2/7/2013 Referred to Senate committee. Status: Received in the Senate and Read twice and referred to the Committee on Health, Education, Labor, and Pensions

SUMMARY AS OF:  2/4/2013–Passed House without amendment. 

National Pediatric Research Network Act of 2013 – Amends the Public Health Service Act to authorize the Director of the National Institutes of Health (NIH), in carrying out the Pediatric Research Initiative, to act through the Director of the Eunice Kennedy Shriver National Institute of Child Health and Human Development to provide for the establishment of a National Pediatric Research Network.

Authorizes the Director of the Institute to award funding to public or private nonprofit entities for: (1) planning, establishing, or strengthening pediatric research consortia; and (2) providing basic operating support for such consortia, including to meet unmet needs for pediatric research through basic, clinical and behavioral translational research and the training of researchers in pediatric research techniques. Authorizes the Director of NIH to make awards for not more than 20 pediatric research consortia, which must be formed from a collaboration of cooperating institutions, be coordinated by a lead institution, agree to disseminate scientific findings, and meet requirements prescribed by the Director of NIH. Allows such support to be for a period of five years, with additional extensions at the discretion of the Director of NIH.

H.R.286 – To amend the Internal Revenue Code of 1986 to exclude from gross income certain State foster care program payments made to the biological parents of disabled children.

  • Sponsor: Rep Green, Gene [TX-29] (introduced 1/15/2013)      Cosponsors (None)
  • Latest Major Action: 1/15/2013 Referred to House committee. Status: Referred to the House Committee on Ways and Means

SUMMARY AS OF: 1/15/2013–Introduced.

Amends the Internal Revenue Code to allow biological parents of handicapped children to exclude from their gross incomes difficulty of care payments made to them under a state or local foster care program.

H.R.393 – To consolidate, improve and reauthorize programs that support families and victims in the Justice system affected by domestic violence.

  • Sponsor: Rep Honda, Michael M. [CA-17] (introduced 1/23/2013)   Cosponsors (None)
  • Latest Major Action: 1/23/2013 Referred to House committee. Status: Referred to the House Committee on the Judiciary

SUMMARY

Amends the Internal Revenue Code to allow biological parents of handicapped children to exclude from their gross incomes difficulty of care payments made to them under a state or local foster care program.

S. 3 – Strengthen Our Schools and Students Act

  • Introduced by Sen. Harry Reid on 1-22-13
  • Referred to the Committee on Health, Education, Labor and Pensions

SUMMARY – Strengthen our Schools and Students Act – Expresses the sense of the Senate that Congress should:

  • Strengthen early learning programs to better prepare children for success in school;
  • Ensure that all students have equitable access to a high-quality, well-rounded education that prepares them to succeed in college and a career;
  • Continue efforts to make high education more affordable and to improve student access and success;
  • Provide all teachers with the support they need to ensure student success, including by creating a national Science, Technology, engineering, and Mathematics (STEM) Master Teacher Corps; and
  • Support states and local educational agencies to ensure that schools have safe and successful learning conditions

S. 47 – Violence Against Women Reauthorization Act of 2013

  • Introduced by Sen. Patrick Leahy. Coauthored by Sen. Mike Crapo and Sen. Patrick Leahy
  • Passed Congress February 28, 2013. Signed into law March 7, 2013.

SUMMARY

Reauthorizes the landmark Violence Against Women Act law that was enacted more than 20 years ago, strengthens and improves existing programs that assist victims and survivors of domestic violence, dating violence, sexual assault, and stalking.

The Leahy-Crapo VAWA bill seeks to protect all victims including those victims who are students, racial minorities, tribal members, immigrants and members of the LGBT community. The bill includes almost all of last year’s bipartisan measure, including campus safety provisions and important all-state minimum funding formulas for key grant programs to ensure that small, rural states like Vermont have access to the victim services grants authorized under VAWA. Added to this year’s measure is the SAFER Act, a bill also approved by the Senate last year that provides for audits of untested rape kits.  The improved version now also provides law enforcement the tools they need to help reduce the backlog of rape kits throughout the country.

The Violence Against Women Act was reauthorized in 2000 and again in 2005, each time with bipartisan support.  The law expired in September 2011.  The Violence Against Women Reauthorization Act will provide a five year authorization for VAWA programs, and reduce authorized funding levels by more than $135 million, or 17 percent, from the law’s 2005 authorization.

112th Congress

Signed into Law in the 112th Congress

Protect OUR Kids Act S.1984/H.R.3653 – Signed by President Obama on January 14, 2013

12/13/2011 Referred to Senate committee. Status: Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
Co- Sponsors: Senators John Kerry, Susan Collins Rep. Lloyd Doggett, Joseph Crowley

SUMMARY

Protect Our Kids Act of 2012 – Establishes the Commission to Eliminate Child Abuse and Neglect Fatalities to:
(1) study the use of child protective services and child welfare services under titles IV and XX (Block Grants to States for Social Services) of the Social Security Act (SSA) to reduce fatalities from child abuse and neglect;
(2) develop recommendations to reduce such fatalities for federal, state, and local agencies, and private sector and nonprofit organizations, including recommendations to implement a comprehensive national strategy for such purpose; and
(3) develop guidelines for the type of information that should be tracked to improve interventions to prevent such fatalities.

Requires any federal agency affected by a recommendation to report to Congress its response and plans to address it.

Amends SSA title IV part A (Temporary Assistance for Needy Families) (TANF) to make an adjustment to the Contingency Fund for State Welfare Programs with respect to deposits for FY2013-FY2014, reserving a specified amount for Commission activities.
Protect Our Kids Act of 2012 – Establishes the Commission to Eliminate Child Abuse and Neglect Fatalities to:
(1) study the use of child protective services and child welfare services under titles IV and XX (Block Grants to States for Social Services) of the Social Security Act (SSA) to reduce fatalities from child abuse and neglect;
(2) develop recommendations to reduce such fatalities for federal, state, and local agencies, and private sector and nonprofit organizations, including recommendations to implement a comprehensive national strategy for such purpose; and
(3) develop guidelines for the type of information that should be tracked to improve interventions to prevent such fatalities.
Requires any federal agency affected by a recommendation to report to Congress its response and plans to address it.
Amends SSA title IV part A (Temporary Assistance for Needy Families) (TANF) to make an adjustment to the Contingency Fund for State Welfare Programs with respect to deposits for FY2013-FY2014, reserving a specified amount for Commission activities.
Protect Our Kids Act of 2012 – Establishes the Commission to Eliminate Child Abuse and Neglect Fatalities to:
(1) study the use of child protective services and child welfare services under titles IV and XX (Block Grants to States for Social Services) of the Social Security Act (SSA) to reduce fatalities from child abuse and neglect;
(2) develop recommendations to reduce such fatalities for federal, state, and local agencies, and private sector and nonprofit organizations, including recommendations to implement a comprehensive national strategy for such purpose; and
(3) develop guidelines for the type of information that should be tracked to improve interventions to prevent such fatalities.
Requires any federal agency affected by a recommendation to report to Congress its response and plans to address it.
Amends SSA title IV part A (Temporary Assistance for Needy Families) (TANF) to make an adjustment to the Contingency Fund for State Welfare Programs with respect to deposits for FY2013-FY2014, reserving a specified amount for Commission activities.

S. 3472: Uninterrupted Scholars Act – Signed by President Obama on January 14, 2013

Uninterrupted Scholars Act (USA) – Amends provisions of the Family Educational Rights and Privacy Act of 1974 that prohibit the Department of Education from funding educational agencies or institutions that release student educational records (or personally identifiable information other than certain directory information) to any individual, agency, or organization without written parental consent.

Expands the list of organizations exempt from such prohibitions (thereby permitting the educational agencies or institutions participating in a Department of Education program to release records or identifiable information to such organizations without parental consent) to include an agency caseworker or other representative of a state or local child welfare agency or tribal organization authorized to access a student’s case plan when such agencies or organizations are legally responsible for the care and protection of the student.

Sets forth conditions including that:
(1) the education records, or the personally identifiable information contained in such records, will not be disclosed by such agency or organization, except to an individual or entity engaged in addressing the student’s education needs and authorized by such agency or organization to receive such disclosure; and
(2) such disclosures be consistent with applicable student record confidentiality laws of states and tribes.

Permits the release of such records and information without additional notice to parents and students when a parent is a party to a court proceeding involving child abuse and neglect or dependency matters and a court order has already been issued in the context of that proceeding.


Federal Child Welfare Policy

Considering that children’s issues only made their debut on the nation’s political stage a few decades ago, the federal government has made important strides in protecting vulnerable children – although there remains much work to be done. The 1960s and 1970s marked the inception of child policy making, as the federal and state governments assumed greater responsibility for social welfare programs via funding and administration. In particular, 1974 was a watershed for children’s wellbeing with the creation of the first Federal Office for Child Support Enforcement and the passage of the Child Abuse Prevention and Treatment Act (CAPTA). In the years since, the area of children’s protection services have evolved substantially.

Child Abuse Prevention and Treatment Act

The Child Abuse Prevention and Treatment Act of 1974 was the first national legislation Congress passed in regard to child maltreatment. CAPTA was created to bring a federal focus to preventing and responding to child abuse and neglect in the United States by offering funding to states and non-profit organizations for programs that address this important issue. Currently, all fifty states and the District of Columbia accept CAPTA funding for “prevention, assessment, investigation, prosecution, and treatment activities” related to child abuse and neglect. CAPTA also requires the Department of Health and Human Services (“HHS”) to establish a national clearinghouse for child abuse information. HHS created the Child Welfare Information Gateway which contains a wide range of information and statistics on child abuse and neglect.

Each state that accepts CAPTA funding must establish programs that comply with several CAPTA requirements. States accepting CAPTA funding must:

  • Enforce child abuse reporting laws
  • Investigate reports of abuse and neglect
  • Ensure the safety of children who are victims of abuse or neglect
  • Educate the public about abuse and neglect
  • Provide a guardian ad litem (GAL) to every abused or neglected child whose case is subject to a court proceeding.
  • Maintain confidential records of child abuse or neglect reports and investigations. States must be prepared to release the information to federal, state, and all other government offices in need of the information. States must also release reports of child abuse or neglect that led to the death or near death of a child to the public.
  • Expunge public records of unsubstantiated used for employment or background checks of unsubstantiated and false reports of abuse and neglect.

Although CAPTA set national standards for what child abuse means, each state has the freedom to set its own specifications, and these can vary across the spectrum. While respecting the states’ need for flexibility, Congress has indicated a desire to become increasingly involved in shaping child protective services. To this end, six additional pieces of legislation were passed between 1980 and 2001 that dealt with concerns ranging from ending foster care drift to the inclusion of community agencies in protective service delivery. CAPTA was most recently amended by the CAPTA Reauthorization Act of 2010.

Adoption Assistance and Child Welfare Act

The Adoption Assistance and Child Welfare Act of 1980 created Title IV-E of the Social Security Act and established the first federal rules to govern child welfare case management, permanency planning, and foster care placement reviews. The act requires courts to review child welfare cases more regularly and mandates that states make “reasonable efforts” to keep families together via prevention and family reunification services. States were also required to develop reunification and preventative programs for foster care and assure that children in non-permanent settings were seen at least every six months.

Family Preservation and Family Support Services Program

The Family Preservation and Family Support Services Program was passed by Congress in 1993 to provide flexible funding for community-based services that focused on child abuse prevention and/or helping parents whose children were at risk of being removed. It is authorized through Title IV-B, subpart 2 of the Social Security Act. This legislation also created the Court Improvement Program, which enabled state courts to assess innovative methods of improving family court performance.

Child Welfare Waiver Program

In 1994, Congress authorized a Child Welfare Waiver program similar to the Court Improvement Program that would enable state agencies to test new approaches to delivering and financing child welfare services. The U.S. Department of Health and Human Services grants waivers annually to states through its discretionary grants program.

Adoption and Safe Families Act

The Adoption and Safe Families Act of 1997 was created in response to criticisms that inadequate resources were devoted to adoption as a permanent placement option for abused children, that the child welfare system was more concerned with family preservation than with child protection, and that too many children languished indefinitely in the foster care system. ASFA’s guidelines were meant to increase the number of adoptions, to encourage states to expedite permanency decisions for children in foster care, to establish performance standards and implement a fiscally punitive state accountability system; and to expand the waiver program explained above. It also expanded the Family Preservation and Family Support Services Program, now called Promoting Safe and Stable Families, to provide additional funding for adoption promotion and support activities and for time-limited family reunification services.

Strengthening Abuse and Neglect Courts Act

In 2000, Congress passed the Strengthening Abuse and Neglect Courts Act. Under this law state courts can apply for federal grants that must be used toward a) reducing the backlog of abuse and neglect cases and/or b) automating case-tracking and data-collection systems.

Promoting Safe and Stable Families Amendments

The Promoting Safe and Stable Families Amendments of 2001 increased the authorization level from $305 million to $505 million for PSSF. However, the mandatory funding level was held at $305 million, meaning that any funding amount above that figure is entirely discretionary. The funding is used for four core purposes: family preservation, community-based family support services, time-limited reunification services, and adoption promotion and support services. In FY 2008, the program funding was approximately $404 million. The Act gave the Promoting Safe and Stable Families program new authority to fund a voucher program for the postsecondary education and training of children who have aged out of the foster care system. The Act also allowed the Promoting Safe and Stable Families program to support mentorship programs for children of incarcerated parents.

Sources:

  • Edward Zigler and Nancy Hall, Child Development and Social Policy (Englewood Cliffs, N.J.: Prentice-Hall, 2000), p. 42.
  • http://www.acf.hhs.gov/programs/cb/laws_policies/cblaws/capta03/index.htm
  • http://www.cwla.org/advocacy/budgetdetails09.htm
  • Child Welfare Information Gateway (2011) About CAPTA: A legislative history 1 .Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.
  • The Child Abuse Prevention and Treatment Act, Pub. L. No. 111-320, § 5104.
  • U.S. Congressional Research Service. The Child Abuse Prevention and Treatment Act (CAPTA): Background, Programs, and Funding (R40899; 1, November 4, 2009), by Emile Stoltzfus.


Federal Child Welfare Oversight

The U.S. Department of Health and Human Services (HHS) is the principal federal agency that regulates and funds federal child welfare initiatives. The Administration for Children and Families (ACF), an operating division of HHS, is responsible for federal programs that promote the economic and social well being of families, children, individuals and communities.

Within the ACF, the Administration on Children, Youth, and Families (ACYF) administers the major Federal programs supporting social services promoting growth and development of children and their families, protective services for children in at-risk situations, and adoption for children with special needs. The United States and its territories are divided into 10 geographic regions, each with an office responsible for administering some of ACYF’s programs within that region.

The Children’s Bureau (CB), one of two bureaus within the Administration on Children, Youth, and Families, works in conjunction with state and local agencies to deliver child welfare services and develop programs that focus on preventing the abuse of children in troubled families. With an annual budget of over $7 billion, the CB provides grants to states, tribes and communities for services related, child protection services, family preservation and support, foster care, adoption and independent living.

The Children’s Bureau administers ten state grant programs and eight discretionary grant programs. Each of the state grant programs has its own legislatively mandated matching requirement and formula for allocation, but all require that funds be administered only by the state child welfare agency (or in some programs, Indian Tribes or Tribal organizations). The state agency is then authorized to contract with other public agencies and with private agencies for the direct provision of appropriate services. ACF policy requires a match from the grantees for all discretionary grant projects other than research.

The Children’s Bureau is also responsible for the collection and dissemination of child welfare statistics, the administration of child welfare information systems, and general oversight of the states’ child welfare systems.

Federal Reporting Systems

Systems administered by the Children’s Bureau collect data from the states as well as aid the states in collection of data. The systems administered by CB are:

  • Adoption and Foster Care Analysis and Reporting System (AFCARS): AFCARS collects case-level information on all children in foster care for whom state child welfare agencies have responsibility for placement, care or supervision and on children who are adopted under the auspices of the state’s public child welfare agency. AFCARS also includes information on foster and adoptive parents.
  • National Child Abuse and Neglect Data System (NCANDS): NCANDS collects and analyzes annual data on child abuse and neglect submitted voluntarily by the states and the District of Columbia. Data from the states are used systematically to measure the impact and effectiveness of CPS through performance outcome measures. NCANDS collects case-level data on all children who receive an investigation or assessment by a CPS agency. States that are unable to provide case-level data submit aggregated counts of key indicators.
  • Statewide Automated Child Welfare Information System (SACWIS): The SACWIS functions as the electronic case file for children and families served by the states’ child welfare programs. Through federal funding, each state is encouraged to implement its own comprehensive automated case management tool. These state systems produce the data that are sent to the Children’s Bureau systems such as AFCARS. Currently, most states and the District of Columbia are at some stage of SACWIS planning, development, implementation, or operations.
  • National Youth in Transition Database (NYTD): NYTD will collect case-level information on youth in care including the services paid for or provided by the State agencies that administer the Chafee Foster Care Independence Program (CFCIP), as well as the outcome information on youth who are in or who have aged out of foster care.

The Child and Family Service Review

The Child and Family Service Review is the Department of Health and Human Service’s mechanism for monitoring state compliance with federal child welfare requirements established by titles IV-B and IV-E of the Social Security Act (SSA). The CFSR measures outcomes and results by examining case file documentation, and allows states to undertake corrective action if they are not found in substantial conformity with the law.

The CFSR takes place in two phases, consisting of a Statewide Assessment and an onsite review of child and family service outcomes and program systems. First, the Children’s Bureau prepares and transmits to the State the data profiles that contain aggregate data on the State’s foster care and in-home service populations. The data profiles allow each State to compare certain safety and permanency data indicators with national standards determined by the Children’s Bureau.

Secondly, a joint Federal-State team performs an onsite review of the State child welfare program. The onsite portion of the review includes: 1) case record reviews, 2) interviews with children and families engaged in services, and 3) interviews with community stakeholders, such as the courts and community agencies, and caseworkers and service providers.

At the end of the onsite review, States determined not to have achieved substantial conformity in all the areas assessed are required to develop and implement Program Improvement Plans (PIPs) addressing the areas of nonconformity. The Children’s Bureau supports the States with technical assistance and monitors implementation of the plans.

States that do not achieve their required improvements sustain penalties as prescribed in the Federal regulations. All 50 States, the District of Columbia, and Puerto Rico completed their first review by 2004. No State was found to be in substantial conformity in all of the seven outcome areas or seven systemic factors. Since that time, States have been implementing their PIP’s to correct those outcome areas not found in substantial conformity.

As of July 2, 2012, all 50 States, the District of Columbia, and Puerto Rico have completed the round 1, 2-year PIP implementation period. The Children’s Bureau has completed its evaluation of all 52 of the round 1 PIPs and determined that 43 states achieved all of their PIP goals and implemented all required PIP activities; penalties were assessed for 9 States; of those 9 States, penalties were rescinded in 7 States, and on-going penalties are being assessed annually for the remaining 2 States.


Federal Funding

State child welfare systems receive funding from a variety of federal sources, the majority of which stem from the U.S. Department of Health and Human Services.

Title IV-E is the largest source of federal funding. It is a permanently authorized, open-ended entitlement that provides reimbursement to states for every eligible child placed in a licensed foster home or institution or adopted from foster care. Under Title IV-E, states are reimbursed for (1) monies provided to foster and adoptive families that cover the cost of food, shelter, and clothing, (2) the cost incurred by the state agency through placement and administrative duties, and (3) training for staff and foster or adoptive parents. It is important to note that the process of determining which families meet eligibility requirements and filing appropriate paperwork is itself a drain on state resources. Furthermore, the standards set in 1996 have not been adjusted for inflation, leaving fewer and fewer children eligible for federal reimbursement. In FY 2008, federal IV-E foster care expenditures are estimated at $4.6 billion.

Title IV-B provides more flexible funding in comparison to Title IV-E because it does not contain any eligibility restrictions regarding which families can receive aid with these funds; however, it is also a much smaller resource, representing only 5 percent of all federal child welfare spending in SFY 2000. Because it is a combination of capped entitlement monies and discretionary funding, Title IV-B’s overall funding level is subject to the annual appropriations process. Title IV-B accounted for $692 million in federal child welfare spending in FY 2008. There are two important subparts to this amendment. The first, known as the Child Welfare Services Program, provides for matching grants to states for a variety of child welfare services predominantly but not exclusively targeted at enabling children to remain in their homes whenever possible. The second, called Promoting Safe and Stable Families, is a capped state entitlement that can be used for prevention, family preservation, time-limited family reunification, or adoption promotion and support.

Title XX, also known as the Social Services Block Grant (SSBG), is a capped entitlement that cannot exceed $2.8 billion and has not even come close to this level in recent years. In FY 2008, Title XX received $1.7 billion in funding. It is estimated that Title XX will receive $1.2 billion in 2009. Moreover, as it is not indexed for inflation its true value continues to shrink, dropping 56.6 percent between 1977 and 1993 . States are given considerable flexibility in determining which programs and individuals are to be served with this funding and therefore many states allocate money from this grant to child protection rather than to other child welfare programs.

TANF, the Temporary Assistance for Needy Families block grant, was established as part of the welfare overhaul in 1996. States use TANF funds to provide parenting classes, mental health counseling, or substance abuse treatment — programs which fall under the federal guideline of providing assistance to families so that children may be cared for in their own homes. States are also permitted to allocate TANF money for kinship care payments. The TANF block grant is a capped state entitlement for which states must meet a “maintenance-of-effort” spending requirement. In 2008, it was authorized at $16.5 billion.

Funding Challenges

The current financing system has been widely criticized for its inflexibility. The vast majority of dedicated federal funding requires that a child be removed from their biological families. Oftentimes, the provision of basic services to a family has to be forgone because funding is exclusively designated for children placed in foster care. Open-ended federal funding sources that specifically target the prevention of child abuse and neglect are relatively limited; for these efforts, states often depend on money designated for child welfare programs, including foster care and adoption. Thus, states are restricted in terms of their choices regarding aid for a child who has been a victim of abuse or neglect. Finally, in order to maximize federal aid for child protection programs, states must expend a considerable administrative effort that not only slows the entire funding process but also diverts resources from direct service provision.

Sources:


Preamble

Every child in every child welfare proceeding, including foster care and dependency proceedings, should be provided with competent independent legal counsel. The safety, stability and well being of children involved in these proceedings are highly dependent upon competent legal representation of all parties, including the young people whose lives are at issue. The following principles are designed to promote the safety, stability and well being of children through the provision of high quality legal services for child clients.

Principles

I. Legal representation provided by an attorney trained in child law and practice allows the child equal access to justice. Children, like adults, are deserving of and entitled to representation that protects their interests, expresses their wishes, and gives them meaningful access to the courts. Only lawyers sufficiently trained and financially supported to represent children can provide effective assistance of counsel to their clients.

II. A child has a fundamental liberty interest in his or her own safety, health and well-being as well as in maintaining the integrity of the family unit and in having a relationship with his or her biological parents. A child in state custody continues to have these fundamental liberty interests as well as a right to safe living conditions and services necessary to ensure protection from physical, psychological and emotional harm and to secure permanency in a safe, loving family. These fundamental liberty interests are separate and distinct from the interests of parents, guardians, or the state.

III. A child’s right to due process and equal protection must be guaranteed in order to protect the child’s fundamental liberty interests and improve upon the integrity and effectiveness of the judicial, child welfare and foster care systems.

IV. “Competent legal counsel” for a child is a lawyer trained in child law and advocacy who is capable, by means of a manageable caseload, available time, resources and support, and adequate compensation, to ensure effective assistance of counsel. Independent counsel owes the child client the same duties of zealous representation, undivided loyalty and confidentiality ethically required of counsel for adults. “Adequately compensated” means remuneration sufficient to the complexity of the case, comparable to state attorneys and paid in a timely manner.

V. A child involved in a child protective, foster care or dependency proceeding shall be considered a party to that proceeding, having the right to pursue legal remedies, to initiate legal proceedings in a court of competent jurisdiction and to express him- or herself, with the assistance of counsel, to the court or hearing officer.

VI. A child’s opinion regarding his or her circumstances is of paramount importance to insure any judicial understanding of that circumstance. Prior to any judicial disposition, a child shall have the opportunity to express his or her views and wishes to the court, personally or through a lawyer.

VII. Every child is presumed competent and entitled to contribute to his or her representation to the fullest extent feasible given the child’s cognitive and developmental capacities, absent a showing that he or she is unable to comprehend or make adequately considered decisions in connection with the representation after being counseled by his or her attorney. If the child’s attorney determines that it is necessary to substitute judgment for the child, the attorney must continue to maintain an attorney-client relationship with the child, to the fullest extent feasible given the child’s cognitive and developmental capacities, as well as inform the court of the child’s wishes.

VIII. Attorneys representing children are required to counsel the client to the fullest extent feasible given the child’s cognitive and developmental capacities with regard to every aspect of the case, including potential ramifications of the client’s choices, in order to ensure that the child is expressing his or her counseled wishes. Attorneys are ethically required to bring the fullness of their experiences to representing their child clients. This includes counseling the client against the particular outcome desired by the client where the attorney believes that outcome to be contrary to the interests of the client.

IX. Any attorney with legal responsibility for the representation of a child who has an open child welfare case must have full access to all information that bears upon the safety and well being of the child including services being provided to the child and family, the permanency plan, and steps being taken to secure permanency for the child, consistent with state and federal law.

X. Court-appointed special advocates (CASA) and lay Guardians Ad Litem (GAL) can be valuable sources of support for children in maltreatment and dependency proceedings but cannot substitute for independent counsel for the child.

XI. Attorneys representing children, parents and guardians and agencies in child welfare cases, as well as judicial officers presiding over those cases, can be assisted by guidelines for such case practice such as those standards set by the American Bar Association, the National Association of Counsel for Children and the National Council of Juvenile and Family Court Judges. Encouraging application of rules of practice nationally through such measures as fiscal incentives may contribute to heightened adherence to desired standards of practice.

Action Principles

1. Congress should encourage the development of national and state professional standards to ensure that attorneys representing children in maltreatment and dependency cases are trained in child law and provide effective representation to their child clients. National uniform standards for practice, such as the American Bar Association’s Standards of Practice For Lawyers Who Represent Children In Abuse and Neglect Cases (1996) and the National Association of Counsel for Children’s Recommendations for Representation of Children in Abuse and Neglect Cases and accompanying “Needs Checklist” (2001), should be further developed and their adoption strongly encouraged by federal law to the full extent possible.

2. The National Conference of Commissioners on Uniform State Laws should adopt and enact its proposed model rule on the “Uniform Representation of Children in Abuse, Neglect and Custody Proceedings Act” (2004), and therein require, inter alia, that:

A child at issue in a maltreatment or dependency case be presumed competent and entitled to contribute to his or her representation absent a showing that he or she is unable to do so.
Appointment of traditional, client-directed representation for a child in a maltreatment or dependency proceeding be mandatory and occur prior to any adversary hearing.

3. Congress should amend CAPTA and the Social Security Act (specifically those amendments titled the “Adoption and Safe Families Act” (ASFA) to require that:

Every child in every proceeding at which that child’s interests are at stake be afforded the opportunity to make his or her opinions and wishes known to the court through his or her representative, effectively and with zealous attention to the child’s stated interests.
At minimum, the child must be appointed an independent, trained attorney at any child welfare hearing implicating the child’s fundamental liberty interests, including adjudication of dependency, custody, adoption, TPR, foster care or residential placement.
Every child shall be entitled, to the fullest extent possible given the child’s cognitive and developmental capacity, to contribute his or her voice to the proceedings through independent counsel.

4. Congress should amend CAPTA to require that:

No person in any representative capacity, be it CASA, GAL, AAL or attorney, represent a child in any proceeding without proper training in child advocacy law as determined by the individual states. Training requirements must also be met by attorneys representing state and local child protective service and social service systems.
Lawyers be trained and practice in accordance with the standards arrived at by the American Bar Association.
Each state report on its current representation model and standards, stated goals for the representation of children, and steps being taken towards their implementation.
Strict penalties should attach for states that delay in complying with such standards to protect children.

5. Further, Congress should:

Reject any proposed legislation that weakens a state or federal position on the need for competent, trained legal advocates working for abused, neglected and dependent children.

First Star, and the Child Advocacy Institute (CAI) support this initiative.  Thorough background information is found in the full text of The Fleecing of Our Foster Children.

For children with disabilities and those who have lost one or both of their parents, the Foster Children Self Support Act requires states serving as representative payee to use the Social Security benefits of those children for their immediate and future needs rather than as a state revenue source. According to the Congressional Research Service, over $150 million in federal benefits, including OASDI benefits that children are entitled to because their deceased parent paid into the Social Security system, are intercepted by child welfare agencies each year.116 As explained previously, states do a poor job of using children’s funds in a manner that truly serves the children’s best interests. Many children (and their attorneys or GALs) have no knowledge that they are eligible for or receiving these federal benefits; the agency simply applies on their behalf and starts receiving the funds as the child’s representative payee. As a result of how the benefits of these vulnerable children are used, scarce assets that belong to the child are not available to them as they transition to adulthood and try to achieve independence.

The Foster Children Self Support Act will safeguard some of these children’s Social Security benefits, creating a basic safety net for when they age out of foster care. Just as parents work hard to raise children who will become self sufficient, we should work hard to prepare foster youth to have the same capabilities. Key provisions of this bill would:

  • Require that all foster children are screened for Social Security (both Title II and XVI) eligibility while in care, and require child welfare agencies to notify the child’s attorney and/or guardian ad litem;
  • Require child welfare agencies to notify the child’s attorney or guardian ad litem (and the child if he/she is 14 or older) of the child’s eligibility and receipt for Social Security benefits while in care;
  • Develop and implement a “Plan for Achieving Self Support” that is specific to each child receiving Social Security benefits. The plan will be designed in collaboration with the agency, the child (on an age-appropriate basis), and the child’s advocates with the goal of using the child’s Social Security benefits to meet the child’s current and future needs;
  • Create an Individual Development Account for each child receiving benefits, so that these Social Security assets will be conserved to assist the youth secure housing, education, or job training after they emancipate from care;
  • Restrict state agencies from using a child’s benefits as a general revenue source;
  • Exclude conserved funds as well as personal earnings, inherited assets, and civil judgments from the $2,000 resource limit under the SSI program.


Summary

Depending on the jurisdiction or state, children in dependency proceedings are regularly accompanied by a Court Appointed Special Advocate (CASA), Attorney ad litem (AAL) or Guardian ad litem (GAL) as required by the Child Abuse Prevention and Treatment Act. This “guaranteed” legal counsel advocates for the child’s best interest in abuse, neglect, dependency, and custody hearings. To date, federal legislation has not mandated minimum education requirements for the GAL, and no caseload restrictions are in place to ensure that every child receives a fundamental standard of care.

Attorney representation allows the child equal access to justice and to have his or her own voice heard in a court of law. In situations where a child’s expressed interests do not coincide with his or her best interests, the presiding judge may also assign a GAL to the case. In other circumstances a child’s wishes may not be heard by the court at all.

What Policy Can Do

In 1974, Congress provided the first representatives for children in abuse and neglect cases through the Child Abuse Prevention and Treatment Act. The Keeping Children and Families Safe Act of 2003 amended CAPTA by requiring that States receiving CAPTA grants provide “training appropriate to the role,” to any individual appointed by the court to represent children in abuse, neglect, and dependency hearings.The CAPTA Reauthorization Act of 2010 amended CAPTA by requiring GALs to be trained in early childhood, child, and adolescent development.

Legislative Objectives to Benefit Children

  • Guarantee Attorneys for Children
    Require any state receiving federal funds to guarantee trained attorneys for all children in child abuse, neglect, and dependency cases.
  • Adopt Standards of Practice
    Require any state receiving federal funds to adopt standards of practice for such attorneys.
  • Federal Grant Programs for Legal Representation
    Create a new federal grant program to support establishment of a multidisciplinary curricula to elevate the quality of legal representation in child abuse neglect, and dependency proceedings.
  • Case Load Limits
    Require that states using federal money maintain reasonable limits on the number of children each attorney is assigned to represent.
  • Adequate Compensation
    Provide a program of federal matching funds to support adequate and appropriate compensation for attorneys in child abuse, neglect, and dependency cases, conditioned on compliance with mandated standards of practice, caseload controls, and representation at all hearings.
  • Cost and Benefits of Quality Legal Representation
    Provide new federal support for longitudinal studies of cost and benefits of legal representation for children, including the relationship between effective representation in cases of abuse, neglect, and dependency, and the prevention of delinquency.


ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings [1]

SECTION 1. DEFINITIONS. In this [act]:
(a) “Abuse and neglect proceeding” means a court proceeding under [cite state statute] for protection of a child from abuse or neglect or a court proceeding under [cite state statute] in which termination of parental rights is at issue.[1] These proceedings include:
(1) abuse;
(2) neglect;
(3) dependency;
(4) child in voluntary placement in state care;
(5) termination of parental rights;
(6) permanency hearings; and
(7) post termination of parental rights through adoption or other permanency proceeding.
(b) A child is:
(1) an individual under the age of 18; or
(2) an individual under the age of 22 who remains under the jurisdiction of the juvenile court.
(c) “Child’s lawyer” (or “lawyer for children”) means a lawyer who provides legal services for a child and who owes the same duties, including undivided loyalty, confidentiality and competent representation, to the child as is due an adult client, subject to Section 7 of this Act.[2]
(d) “Best interest advocate” means an individual, not functioning or intended to function as the child’s lawyer, appointed by the court to assist the court in determining the best interests of the child.
(e) “Developmental level” is a measure of the ability to communicate and understand others, taking into account such factors as age, mental capacity, level of education, cultural background, and degree of language acquisition.[3]

Legislative Note: States should implement a mechanism to bring children into court when they have been voluntarily placed into state care, if such procedures do not already exist. Court action should be triggered after a specific number of days in voluntary care (not fewer than 30 days, but not more than 90 days).

Commentary:

Under the Act, a “child’s lawyer” is a client-directed lawyer in a traditional attorney-client relationship with the child. A “best interests advocate” does not function as the child’s lawyer and is not bound by the child’s expressed wishes in determining what to advocate, although the best interests advocate should consider those wishes.

The best interest advocate may be a lawyer or a lay person, such as a court-appointed special advocate, or CASA. The best interests advocate assists the court in determining the best interests of a child and will therefore perform many of the functions formerly attributable to guardians ad litem, but best interests advocates are not to function as the child’s lawyer. A lawyer appointed as a best interest advocate shall function as otherwise set forth in state law.

SECTION 2. APPLICABILITY AND RELATIONSHIP TO OTHER LAW.
(a) This [act] applies to an abuse and neglect proceeding pending or commenced on or after [the effective date of this act].
(b) The child in these proceedings is a party.

SECTION 3. APPOINTMENT IN ABUSE OR NEGLECT PROCEEDING.
(a) The court shall appoint a child’s lawyer for each child who is the subject of a petition in an abuse and neglect proceeding. The appointment of a child’s lawyer must be made as soon as practicable to ensure effective representation of the child and, in any event, before the first court hearing.
(b) In addition to the appointment of a child’s lawyer, the court may appoint a best interest advocate to assist the court in determining the child’s best interests.
(c) The court may appoint one child’s lawyer to represent siblings if there is no conflict of interest as defined under the applicable rules of professional conduct.[4] The court may appoint additional counsel to represent individual siblings at a child’s lawyer’s request due to a conflict of interest between or among the siblings.
(d) The applicable rules of professional conduct and any law governing the obligations of lawyers to their clients shall apply to such appointed lawyers for children.
(e) The appointed child’s lawyer shall represent the child at all stages of the proceedings, unless otherwise discharged by order of court.[5]
(f) A child’s right to counsel may not be waived at any court proceeding

Commentary:

This act recognizes the right of every child to have quality legal representation and a voice in any abuse, neglect, dependency, or termination of parental rights proceeding, regardless of developmental level. Nothing in this Act precludes a child from retaining a lawyer. States should provide a lawyer to a child who has been placed into state custody through a voluntary placement arrangement. The fact that the child is in the state’s custody through the parent’s voluntary decision should not diminish the child’s entitlement to a lawyer.

A best interest advocate does not replace the appointment of a lawyer for the child. A best interest advocate serves to provide guidance to the court with respect to the child’s best interest and does not establish a lawyer-client relationship with the child. Nothing in this Act restricts a court’s ability to appoint a best interest advocate in any proceeding. Because this Act deals specifically with lawyers for children, it will not further address the role of the best interest advocate.

The child is entitled to conflict-free representation and the applicable rules of professional conduct must be applied in the same manner as they would be applied for lawyers for adults. A lawyer representing siblings should maintain the same lawyer-client relationship with respect to each child.

SECTION 4. QUALIFICATIONS OF THE CHILD’S LAWYER.
(a) The court shall appoint as the child’s lawyer an individual who is qualified through training and experience, according to standards established by [insert reference to source of standards].
(b) Lawyers for children shall receive initial training and annual continuing legal education that is specific to child welfare law. Lawyers for children shall be familiar with all relevant federal, state, and local applicable laws.
(c) Lawyers for children shall not be appointed to new cases when their present caseload exceeds more than a reasonable number given the jurisdiction, the percent of the lawyer’s practice spent on abuse and neglect cases, the complexity of the case, and other relevant factors.

Legislative Note: States that adopt training standards and standards of practice for children’s lawyers should include the bracketed portion of this section and insert a reference to the state laws, court rules, or administrative guidelines containing those standards.[6]
Jurisdictions are urged to specify a case limit at the time of passage of this Act.

Commentary:

States should establish minimum training requirements for lawyers who represent children. Such training should focus on applicable law, skills needed to develop a meaningful lawyer-client relationship with child-clients, techniques to assess capacity in children, as well as the many interdisciplinary issues that arise in child welfare cases.

The lawyer needs to spend enough time on each abuse and neglect case to establish a lawyer-client relationship and zealously advocate for the client. A lawyer’s caseload must allow realistic performance of functions assigned to the lawyer under the [Act]. The amount of time and the number of children a lawyer can represent effectively will differ based on a number of factors, including type of case, the demands of the jurisdiction, whether the lawyer is affiliated with a children’s law office, whether the lawyer is assisted by investigators or other child welfare professionals, and the percent of the lawyer’s practice spent on abuse and neglect cases. States are encouraged to conduct caseload analyses to determine guidelines for lawyers representing children in abuse and neglect cases.

SECTION 5. ORDER OF APPOINTMENT.
(a) Subject to subsection (b), an order of appointment of a child’s lawyer shall be in writing and on the record, identify the lawyer who will act in that capacity, and clearly set forth the terms of the appointment, including the reasons for the appointment, rights of access as provided under Section 8, and applicable terms of compensation as provided under Section 12.
(b) In an order of appointment issued under subsection (a), the court may identify a private organization, law school clinical program or governmental program through which a child’s lawyer will be provided. The organization or program shall designate the lawyer who will act in that capacity and notify the parties and the court of the name of the assigned lawyer as soon as practicable.[7] Additionally, the organization or program shall notify the parties and the court of any changes in the individual assignment.

SECTION 6. DURATION OF APPOINTMENT.
Unless otherwise provided by a court order, an appointment of a child’s lawyer in an abuse and neglect proceeding continues in effect until the lawyer is discharged by court order or the case is dismissed.[8] The appointment includes all stages thereof, from removal from the home or initial appointment through all available appellate proceedings. The lawyer may, with the permission of the court, arrange for supplemental or separate counsel to handle proceedings at an appellate stage.[9]
Commentary:
As long as the child remains in state custody, even if the state custody is long-term or permanent, the child should retain the right to counsel so that the child’s lawyer can deal with the issues that may arise while the child is in custody but the case is not before the court.

SECTION 7. DUTIES OF CHILD’S LAWYER AND SCOPE OF REPRESENTATION.
(a) A child’s lawyer shall participate in any proceeding concerning the child with the same rights and obligations as any other lawyer for a party to the proceeding.
(b) The duties of a child’s lawyer include, but are not limited to:
(1) taking all steps reasonably necessary to represent the client in the proceeding, including but not limited to: interviewing and counseling the client, preparing a case theory and strategy, preparing for and participating in negotiations and hearings, drafting and submitting motions, memoranda and orders, and such other steps as established by the applicable standards of practice for lawyers acting on behalf of children in this jurisdiction;
(2) reviewing and accepting or declining, after consultation with the client, any proposed stipulation for an order affecting the child and explaining to the court the basis for any opposition;
(3) taking action the lawyer considers appropriate to expedite the proceeding and the resolution of contested issues;
(4) where appropriate, after consultation with the client, discussing the possibility of settlement or the use of alternative forms of dispute resolution and participating in such processes to the extent permitted under the law of this state;[10]
(5) meeting with the child prior to each hearing and for at least one in-person meeting every quarter;
(6) where appropriate and consistent with both confidentiality and the child’s legal interests, consulting with the best interests advocate;
(7) prior to every hearing, investigating and taking necessary legal action regarding the child’s medical, mental health, social, education, and overall well-being;
(8) visiting the home, residence, or any prospective residence of the child, including each time the placement is changed;
(9) seeking court orders or taking any other necessary steps in accordance with the child’s direction to ensure that the child’s health, mental health, educational, developmental, cultural and placement needs are met; and
(10) representing the child in all proceedings affecting the issues before the court, including hearings on appeal or referring the child’s case to the appropriate appellate counsel as provided for by/ mandated by [inset local rule/law etc].

Commentary:

The national standards mentioned in (b)(1) include the ABAStandards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases.

In order to comply with the duties outlined in this section, lawyers must have caseloads that allow realistic performance of these functions.

The child’s lawyer may request authority from the court to pursue issues on behalf of the child, administratively or judicially, even if those issues do not specifically arise from the court appointment.[11] Such ancillary matters include special education, school discipline hearings, mental health treatment, delinquency or criminal issues, status offender matters, guardianship, adoption, paternity, probate, immigration matters, medical care coverage, SSI eligibility, youth transitioning out of care issues, postsecondary education opportunity qualification, and tort actions for injury, as appropriate.[12] The lawyer should make every effort to ensure that the child is represented by legal counsel in all ancillary legal proceedings, either personally, when the lawyer is competent to do so, or through referral or collaboration. Having one lawyer represent the child across multiple proceedings is valuable because the lawyer is better able to understand and fully appreciate the various issues as they arise and how those issues may affect other proceedings.

(c) When the child is capable of directing the representation by expressing his or her objectives, the child’s lawyer shall maintain a normal client-lawyer relationship with the child in accordance with the rules of professional conduct. In a developmentally appropriate manner, the lawyer shall elicit the child’s wishes and advise the child as to options.

Commentary:

The lawyer-client relationship for the child’s lawyer is fundamentally indistinguishable from the lawyer-client relationship in any other situation and includes duties of client direction,[13] confidentiality,[14] diligence,[15] competence,[16] loyalty,[17] communication,[18] and the duty to provide independent advice.[19] Client direction requires the lawyer to abide by the client’s decision about the objectives of the representation. In order for the child to have an independent voice in abuse and neglect proceedings, the lawyer shall advocate for the child’s counseled and expressed wishes.[20] Moreover, providing the child with an independent and client-directed lawyer ensures that the child’s legal rights and interests are adequately protected.

The child’s lawyer needs to explain his or her role to the client and, if applicable, explain in what strictly limited circumstances the lawyer cannot advocate for the client’s expressed wishes and in what circumstances the lawyer may be required to reveal confidential information. This explanation should occur during the first meeting so the client understands the terms of the relationship.

In addition to explaining the role of the child’s lawyer, the lawyer should explain the legal process to the child in a developmentally appropriate manner as required by Rule 1.4 of the ABA Model Rules of Professional Conduct or its equivalent.[21] This explanation can and will change based on age, cognitive ability, and emotional maturity of the child. The lawyer needs to take the time to explain thoroughly and in a way that allows and encourages the child to ask questions and that ensures the child’s understanding. The lawyer should also facilitate the child’s participation in the proceeding (See Section 9).

In order to determine the objectives of the representation of the child, the child’s lawyer should develop a relationship with the client. The lawyer should achieve a thorough knowledge of the child’s circumstances and needs. The lawyer should visit the child in the child’s home, school, or other appropriate place where the child is comfortable. The lawyer should observe the child’s interactions with parents, foster parents, and other caregivers. The lawyer should maintain regular and ongoing contact with the child throughout the case.

The child’s lawyer helps to make the child’s wishes and voice heard but is not merely the child’s mouth piece. As with any lawyer, a child’s lawyer is both an advocate and a counselor for the client. The lawyer should, without unduly influencing the child, advise the child by providing options and information to assist the child in making decisions. The lawyer should explain the practical effects of taking various positions, the likelihood that a court will accept particular arguments, and the impact of such decisions on the child, other family members, and future legal proceedings.[22] The lawyer should investigate the relevant facts, interview persons with significant knowledge of the child’s history, review relevant records, and work with others in the case.
(d) The child’s lawyer shall determine whether the child has diminished capacity pursuant to the Model Rules of Professional Conduct. {STATES MAY CONSIDER INSERTING THE FOLLOWING TWO SENTENCES:} [Under this subsection a child shall be presumed to be capable of directing representation at the age of ___. The presumption of diminished capacity is rebutted if, in the sole discretion of the lawyer, the child is deemed capable of directing representation.] In making the determination, the lawyer should consult the child and may consult other individuals or entities that can provide the child’s lawyer with the information and assistance necessary to determine the child’s ability to direct the representation.
When a child client has diminished capacity, the child’s lawyer shall make a good faith effort to determine the child’s needs and wishes. The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client and fulfill the duties as outlined in Section 7(b) of this Act. During a temporary period or on a particular issue where a normal client-lawyer relationship is not reasonably possible to maintain, the child’s lawyer shall make a substituted judgment determination. A substituted judgment determination includes determining what the child would decide if he or she were capable of making an adequately considered decision, and representing the child in accordance with that determination. The lawyer should take direction from the child as the child develops the capacity to direct the lawyer. The lawyer shall advise the court of the determination of capacity and any subsequent change in that determination.

Commentary:

A determination of incapacity may be incremental and issue-specific, thus enabling the child’s lawyer to continue to function as a client-directed lawyer as to major questions in the proceeding. Determination of diminished capacity requires ongoing re-assessment. A child may be able to direct the lawyer with respect to a particular issue at one time but not another. Similarly, a child may be able to determine some positions in the case, but not others. For guidance in assessing diminished capacity, see the commentary to Section (e). The lawyer shall advise the court of the determination of capacity and any subsequent change in that determination.

In making a substituted judgment determination, the child’s lawyer may wish to seek guidance from appropriate professionals and others with knowledge of the child, including the advice of an expert. A substituted judgment determination is not the same as determining the child’s best interests; determination of a child’s best interests remains solely the province of the court. Rather, it involves determining what the child would decide if he or she were able to make an adequately considered decision.[23] A lawyer should determine the child’s position based on objective facts and information, not personal beliefs. To assess the needs and interests of this child, the lawyer should observe the child in his or her environment, and consult with experts.[24]

In formulating a substituted judgment position, the child’s lawyer’s advocacy should be child-centered, research-informed, permanency-driven, and holistic.[25] The child’s needs and interests, not the adults’ or professionals’ interests, must be the center of all advocacy. For example, lawyers representing very young children must truly see the world through the child’s eyes and formulate their approach from that perspective, gathering information and gaining insight into the child’s experiences to inform advocacy related to placement, services, treatment and permanency.[26] The child’s lawyer should be proactive and seek out opportunities to observe and interact with the very young child client. It is also essential that lawyers for very young children have a firm working knowledge of child development and special entitlements for children under age five.[27]

When determining a substituted judgment position, the lawyer shall take into consideration the child’s legal interests based on objective criteria as set forth in the laws applicable to the proceeding, the goal of expeditious resolution of the case and the use of the least restrictive or detrimental alternatives available. The child’s lawyer should seek to speed the legal process, while also maintaining the child’s critical relationships.

The child’s lawyer should not confuse inability to express a preference with unwillingness to express a preference. If an otherwise competent child chooses not to express a preference on a particular matter, the child’s lawyer should determine if the child wishes the lawyer to take no position in the proceeding, or if the child wishes the lawyer or someone else to make the decision for him or her. In either case, the lawyer is bound to follow the client’s direction. A child may be able to direct the lawyer with respect to a particular issue at one time but not at another. A child may be able to determine some positions in the case but not others.
(e) When the child’s lawyer reasonably believes that the client has diminished capacity, is at risk of substantial 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 protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a best interest advocate or investigator to make an independent recommendation to the court with respect to the best interests of the child.
When taking protective action, the lawyer is impliedly authorized under Model Rule 1.6(a) to reveal information about the child, but only to the extent reasonably necessary to protect the child’s interests.[28] Information relating to the representation of a child with diminished capacity is protected by Rule 1.6 and Rule 1.14 of the ABA Model Rules of Professional Conduct. [OR ENTER STATE RULE CITATION]

Commentary:

Consistent with Rule 1.14, ABA Model Rules of Professional Conduct (2004), the child’s lawyer should determine whether the child has sufficient maturity to understand and form an attorney-client relationship and whether the child is capable of making reasoned judgments and engaging in meaningful communication. It is the responsibility of the child’s lawyer to determine whether the child suffers from diminished capacity. This decision shall be made after sufficient contact and regular communication with the client. Determination about capacity should be grounded in insights from child development science and should focus on the child’s decision-making process rather than the child’s choices themselves. Lawyers should be careful not to conclude that the child suffers diminished capacity from a client’s insistence upon a course of action that the lawyer considers unwise or at variance with lawyer’s view.[29]

When determining the child’s capacity the lawyer should elicit the child’s expressed wishes in a developmentally appropriate manner. The lawyer should not expect the child to convey information in the same way as an adult client. A child’s age is not determinative of diminished capacity. For example, even very young children are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.[30]

Criteria for determining diminished capacity include the child’s developmental stage, cognitive ability, emotional and mental development, ability to communicate, ability to understand consequences, consistency of the child’s decisions, strength of wishes and the opinions of others, including social workers, therapists, teachers, family members or a hired expert.[31] To assist in the assessment, the lawyer should ask questions in developmentally appropriate language to determine whether the child understands the nature and purpose of the proceeding and the risks and benefits of a desired position.[32] A child may have the ability to make certain decisions, but not others. A child with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the child’s own well-being such as sibling visits, kinship visits and school choice and should continue to direct counsel in those areas in which he or she does have capacity. The lawyer should continue to assess the child’s capacity as it may change over time.

When the lawyer determines that the child has diminished capacity, the child is at risk of substantial harm, the child cannot adequately act in his or her own interest, and the use of the lawyer’s counseling role is unsuccessful, the lawyer may take protective action. Substantial harm includes physical, sexual and psychological harm. Protective action includes consultation with family members, or professionals who work with the child. Lawyers may also utilize a period of reconsideration to allow for an improvement or clarification of circumstances or to allow for an improvement in the child’s capacity.[33] This rule reminds lawyers, among other things, that they should ultimately be guided by the wishes and values of the child to the extent they can be determined.[34]

“Information relating to the representation is protected by Model Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to this section, the lawyer is impliedly authorized to make necessary disclosures, even when the client directs the lawyer to the contrary.”[35] However the lawyer should make every effort to avoid disclosures if at all possible. Where disclosures are unavoidable, the lawyer must limit the disclosures as much as possible. Prior to any consultation, the lawyer should consider the impact on the client’s position, and whether the individual is a party who might use the information to further his or her own interests. “At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client.”[36] If any disclosure by the lawyer will have a negative impact on the client’s case or the lawyer-client relationship, the lawyer must consider whether representation can continue and whether the lawyer-client relationship can be re-established. “The lawyer’s position in such cases is an unavoidably difficult one.”[37]

A request made for the appointment of a best interest advocate to make an independent recommendation to the court with respect to the best interests of the child should be reserved for extreme cases, i.e. where the child is at risk of substantial physical harm, cannot act in his or her own interest and all protective action remedies have been exhausted. Requesting the judge to appoint a best interest advocate may undermine the relationship the lawyer has established with the child. It also potentially compromises confidential information the child may have revealed to the lawyer. The lawyer cannot ever become the best interest advocate, in part due to confidential information that the lawyer receives in the course of representation. Nothing in this section restricts a court from independently appointing a best interest advocate when it deems the appointment appropriate.

SECTION 8. ACCESS TO CHILD AND INFORMATION RELATING TO THE CHILD.
(a) Subject to subsections (b) and (c), when the court appoints the child’s lawyer, it shall issue an order, with notice to all parties, authorizing the child’s lawyer to have access to:
(1) the child; and
(2) confidential information regarding the child, including the child’s educational, medical, and mental health records, social services agency files, court records including court files involving allegations of abuse or neglect of the child, any delinquency records involving the child, and other information relevant to the issues in the proceeding, and reports that form the basis of any recommendation made to the court.
(b) A child’s record that is privileged or confidential under law other than this [act] may be released to a child’s lawyer appointed under this [act] only in accordance with that law, including any requirements in that law for notice and opportunity to object to release of records. Nothing in this act shall diminish or otherwise change the attorney-client privilege of the child, nor shall the child have any lesser rights than any other party in regard to this or any other evidentiary privilege. Information that is privileged under the lawyer-client relationship may not be disclosed except as otherwise permitted by law of this state other than this [act].
(c) An order issued pursuant to subsection (a) shall require that a child’s lawyer maintain the confidentiality of information released pursuant to Model Rule 1.6. The court may impose any other condition or limitation on an order of access which is required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding.
(d) The custodian of any record regarding the child shall provide access to the record to an individual authorized access by order issued pursuant to subsection (a).
(e) Subject to subsection (b), an order issued pursuant to subsection (a) takes effect upon issuance.[38]

SECTION 9. PARTICIPATION IN PROCEEDINGS.
(a) Each child who is the subject of an abuse and neglect proceeding has the right to attend and fully participate in all hearings related to his or her case.
(b) Each child shall receive notice from the child welfare agency worker and the child’s lawyer of his or her right to attend the court hearings.
(c) If the child is not present at the hearing, the court shall determine whether the child was properly notified of his or her right to attend the hearing, whether the child wished to attend the hearing, whether the child had the means (transportation) to attend, and the reasons for the non-appearance.
(d) If the child wished to attend and was not transported to court the matter shall be continued.
(e) The child’s presence shall only be excused after the lawyer for the child has consulted with the child and, with informed consent, the child has waived his or her right to attend.
(f) A child’s lawyer appointed under this [act] is entitled to:
(1) receive a copy of each pleading or other record filed with the court in the proceeding;
(2) receive notice of and attend each hearing in the proceeding [and participate and receive copies of all records in any appeal that may be filed in the proceeding];
(3) receive notice of and participate in any case staffing or case management conference regarding the child in an abuse and neglect proceeding; and
(4) receive notice of any intent to change the child’s placement. In the case of an emergency change, the lawyer shall receive notice as soon as possible but no later than 48 hours following the change of placement.
(g) A child’s lawyer appointed under this [act] may not engage in ex parte contact with the court except as authorized by the applicable rules of professional conduct, court order, or other law.
(h) Subject to court approval, a party may call any best interest advocate as a witness for the purpose of cross-examination regarding the advocate’s report, even if the advocate is not listed as a witness by a party.
[(i) In a jury trial, disclosure to the jury of the contents of a best interest advocate’s report is subject to this state’s rules of evidence.][39]

Commentary:

Courts need to provide the child with notification of each hearing. The Court should enforce the child’s right to attend and fully participate in all hearings related to his or her abuse and neglect proceeding.[40] Having the child in court emphasizes for the judge and all parties that this hearing is about the child. Factors to consider regarding the child’s presence at court and participation in the proceedings include: whether the child wants to attend, the child’s age, the child’s developmental ability, the child’s emotional maturity, the purpose of the hearing and whether the child would be severely traumatized by such attendance.

Lawyers should consider the following options in determining how to provide the most meaningful experience for the child to participate: allowing the child to be present throughout the entire hearing, presenting the child’s testimony in chambers adhering to all applicable rules of evidence, arranging for the child to visit the courtroom in advance, video or teleconferencing the child into the hearing, allowing the child to be present only when the child’s input is required, excluding the child during harmful testimony, and presenting the child’s statements in court adhering to all applicable rules of evidence.

Courts should reasonably accommodate the child to ensure the hearing is a meaningful experience for the child. The court should consider: scheduling hearing dates and times when the child is available and least likely to disrupt the child’s routine, setting specific hearing times to prevent the child from having to wait, making courtroom waiting areas child friendly, and ensuring the child will be transported to and from each hearing.

The lawyer for the child plays an important role in the child’s court participation. The lawyer shall ensure that the child is properly prepared for the hearing. The lawyer should meet the child in advance to let the child know what to expect at the hearing, who will be present, what their roles are, what will be discussed, and what decisions will be made. If the child would like to address the court, the lawyer should counsel with the child on what to say and how to say it. After the hearing, the lawyer should explain the judge’s ruling and allow the child to ask questions about the proceeding.

Because of the wide range of roles assumed by best interest advocates in different jurisdictions, the question of whether a best interest advocate may be called as a witness should be left to the discretion of the court.

SECTION 10. LAWYER WORK PRODUCT AND TESTIMONY.
(a) Except as authorized by [insert reference to this state’s rules of professional conduct] or court rule, a child’s lawyer may not:
(1) be compelled to produce work product developed during the appointment;
(2) be required to disclose the source of information obtained as a result of the appointment;
(3) introduce into evidence any report or analysis prepared by the child’s lawyer; or
(4) provide any testimony that is subject to the attorney-client privilege or any other testimony unless ordered by the court.

Commentary:

Nothing in this act shall diminish or otherwise change the lawyer-work product or attorney-client privilege protection for the child, nor shall the child have any lesser rights than any other party with respect to these protections.
If a state requires lawyers to report abuse or neglect under a mandated reporting statute, the state should list that statute under this section.

SECTION 11. CHILD’S RIGHT OF ACTION.
(a) The child’s lawyer may be liable for malpractice to the same extent as a lawyer for any other client.
(b) Only the child has a right of action for money damages against the child’s lawyer for inaction or action taken in the capacity of child’s lawyer.

SECTION 12. FEES AND EXPENSES IN ABUSE OR NEGLECT PROCEEDINGS.
(a) In an abuse or neglect proceeding, a child’s lawyer appointed pursuant to this [act] is entitled to reasonable and timely fees and expenses in an amount set by [court or state agency to be paid from (authorized public funds)].[41]
(b) To receive payment under this section, the payee shall complete and submit a written claim for payment, whether interim or final, justifying the fees and expenses charged.
(c) If the court, after a hearing, determines that a party whose conduct gave rise to a finding of abuse or neglect is able to defray all or part of the fees and expenses set pursuant to subsection (a), the court shall enter a judgment in favor of [the state, state agency, or political subdivision] against the party in an amount the court determines is reasonable.[42]

SECTION 13. EFFECTIVE DATE. This [act] takes effect on __________.

[1] This Model Act was drafted under the auspices of the ABA Section of Litigation Children’s Rights Litigation Committee with the assistance of the Bar-Youth Empowerment Program of the ABA Center on Children and the Law and First Star. The Act incorporates some language from the provisions of the NCCUSL Representation of Children in Abuse, Neglect and Custody Proceedings Act.

[1] NCCUSL, 2006 Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings, Sec. 2(2) [Hereinafter NCCUSL Act]
[2] Id., Sec. 2(6); American Bar Association, Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases, Part I, Sec A-1, 29 Fam. L. Q. 375 (1995). The standards were formally adopted by the ABA House of Delegates in 1996. [Hereinafter ABA Standards].
[3] ABA Standards, Part I, Sec A-3.
[4] NCCUSL Act, Sec. 4(c); see also ABA Standards, Part I, Sec B-1
[5] ABA Standards, Sec D-13; F-1-5; see generally La. Sup. Ct. R. XXXIII, Standard 1; see generally Ariz. R. Proc. Juv. Ct. R. 39(b).
[6] ABA Standards, Part II, Sec L-1-2.
[7] NCCUSL Act, Sec. 9
[8] Id., Sec. 10(a)
[9] ABA Standards, Part I, Sec D-13; F-1-5; see generally La. Sup. Ct. R. XXXIII, Standard 1.; see generally Ariz. R. Proc. Juv. Ct. R. 39(b).
[10] NCCUSL Act, Sec. 11 Alternative A..
[11] ABA Standards, Part I, Section D-12.
[12] Id.
[13] ABA Model Rules of Professional Responsibility (hereinafter M.R.) 1.2
[14] M.R. 1.6
[15] M.R. 1.3
[16] M.R. 1.1
[17] M.R. 1.7
[18] M.R. 1.4
[19] M.R. 2.1
[20] ABA Standards, commentary A-1
[21] M.R. 1.4
[22] M.R. 2.1
[23] Massachusetts Committee For Public Counsel Services, Performance Standards Governing The Representation Of Children And Parents in Child Welfare Cases, Chapter Four: Performance Standards and Complaint Procedures 4-1, Section 1.6(c) (2004).
[24] Candice L. Maze, JD, Advocating for Very Young Children in Dependency Proceedings: The Hallmarks of Effective, Ethical Representation, ABA Center on Children and the Law, October, 2010.
[25] Id.
[26] Id.
[27] Id.
[28] M.R. 1.14(c)
[29] Restatement (Third) of the Law Governing Lawyers Sec. 24 c. c (2000).
[30] M.R. 1.14 cmt. 1
[31] M.R. 1.14, cmt. 1
[32] Anne Graffam Walker, Ph.D. Handbook on Questioning Children: A Linguistic Perspective 2nd Edition ABA Center on Children and the Law Copyright 1999 by ABA.
[33] M.R. 1.14 cmt. 5
[34] M.R. 1.14 cmt. 5
[35] M.R. 1.14, cmt. 8
[36] M.R. 1.14, cmt. 8
[37] M.R. 1.14, cmt 8
[38] NCCUSL Act, Sec. 15
[39] NCCUSL Act, Sec. 16
[40] American Bar Association Youth Transitioning from Foster Care August 2007; American Bar Association Foster Care Reform Act August 2005
[41] N.C. Gen. Stat. Ann. § 7B-603.
[42] NCCUSL Act, Sec. 19.