Chapter 3
Specific Standards For Representation
In Juvenile Dependency Cases



STANDARD 3.1
Prerequisites For Representation

Counsel should be proficient in applicable substantive and procedural juvenile law and should have appropriate experience, skill and training for the type of representation required.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

Prerequisites for Court Appointment in Dependency Court

1. The attorney should have a solid familiarity with and receive ongoing training on the Welfare and Institutions Code statutory requirements, the Evidence Code, local and state court rules, court policies, relevant case law, the practice guidelines set forth in this document and the substantive, ethical and procedural issues unique to practice in Dependency Court. The attorney should keep current with changes in statutory and case law.

2. Attorneys should receive training on the representation of children, including, but not limited to, statutory and case law.

3. The Attorney should be familiar with and receive ongoing training on the structure and functioning of the Juvenile Court, the Child Advocates Program, the Department of Children's Services, including Emergency Response and family preservation, reasonable efforts, placement, and adoption.

4. Attorneys new to Dependency Court should:

a. observe and/or participate in each type of dependency hearing prior to accepting an appointment in Dependency Court;

b. work and consult with an assigned mentor for the first three months; and

c. visit two types of placement centers, a shelter care, foster home, or group home;

Guidelines for Continued Appointment in Dependency Court

The Attorney should be familiar with and receive ongoing training in the following areas:

1. The Psychological and medical aspects relating to dependency court matters, particularly in the areas of physical, emotional and sexual abuse, child development stages, and patters of child growth related to neglect and non-organic failure to thrive.

2. Interviewing techniques for children.

3. Child developmental stages, including the child's cognitive, emotional and social growth stages and language skills.

4. Child development as it relates to children as witnesses and the impact of the court process on the child.

5. Reasonable efforts, treatment resources and family preservation services available and the problems they are designed to address.

6. The various types of minute orders which the Dependency Court can issue.

7. The types of placement and treatment available to children.

8. Cultural and ethnic differences as they relate to child rearing.

9. Educational, mental health, medical treatment, and other resources available to children.

10. Government benefits available to assist families involved in the dependency system.

11. Medical status examinations and their effect on children.

12. Psychotropic drugs, their use and effect on children and resources for determining the appropriateness of their use.

13. Resources for the treatment and recognition of they physical and psychological aspects of physical abuse, sexual abuse, emotional abuse and the non-organic failure to thrive.

14. Patterns of child growth as related to neglect.

15. Immigration law issues, consequences and resources related to parents and children in Dependency Court.

16. The Indian Child Welfare Act, Native American families and children and appropriate resources.

17. Emancipation laws, procedures, and resources.

18. substance abuse and resources for substance abusing families.

19. Domestic violence and appropriate resources.

20. Family dynamics and cultural aspects of families.

21. Transitional aspects of placement and child's return home.

22. Other areas of the law that occasionally cross over into dependency cases such as tort actions, probate, and family law.

Qualification Standards for Court Appointed Counsel to Represent Indigent Persons at State Expense (Oregon Judicial Department Policy Statement)

Section G. Juvenile Cases, Including Delinquency, Remand Hearings, Neglect, Abuse, Other Dependency Cases, Status Offenses and Termination of Parental Rights

An attorney is qualified for appointment to juvenile cases, under ORS Chapter 419, if he or she:

1. For all cases, has knowledge of juvenile justice statutes, case law, standards, and procedures; has observed at least one contested juvenile court case; is generally familiar with services available to children and parents in the juvenile system; and has reviewed and is familiar with the following materials:

a. ORS, Chapter 419, Oregon Juvenile Code.

b. ORS, Chapter 417, Interstate Compact on Juveniles and the Community Juvenile Services Act.

c. ORS, Chapter 418, Child Welfare Services and Reporting of Child Abuse.

d. ORS, Chapter 420, Juvenile Training Schools and Youth Care Centers.

e. Oregon State Bar, Juvenile Law (1994, Supp. 1995).

f. Pub. L. 95-272, Adoption Assistance and Child Welfare Act of 1980.

g. Pub. L. 95-608, Indian Child Welfare Act of 1978, 25 USC sections 1901-1963 (1982).

h. Education of the Handicapped Act of 1975, 20 USC sections 1400-1485 (1982, Supp. 1987).

i. Pub. L. 93-112, Title V section 504, Rehabilitation Act of 1973, as amended, 29 USC section 794 (1982).

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

1. Requirements Prior to Representation. Prior to being appointed to represent any party in a dependency matter, all attorneys should:

a. Be familiar with dependency law and related areas.

b. Review any available videos of sample 300 hearings and other proceedings as required by the presiding juvenile court judge.

c. Visit a shelter/emergency foster home/juvenile detention center.

d. 'Actively participate' in at least 3 dependency actions from detention through disposition.

2. Continuing Educational Requirements Similar to OSB Task Force on Indigent Defense II Standard 3.1

3. The attorney must, first and foremost, strive to acquire and develop basic advocacy skills such as client interviewing, case investigation, negotiation and trial practice.

4. The child's attorney should be especially aware of statutory or case law that pertains particularly to children who are the subject of dependency actions or their attorneys.

5. The following are examples of issues that may arise in the course of representing children. Knowledge in these areas will enhance the attorney's ability to advise and represent child clients.

a. Guardianship

b. Emancipation

c. Mental Health

d. Education/School Discipline

e. Wardships

f. Community Resources - therapy, recreation, shelter, etc.

Commentary:

Standards of Practice for Representing Children (Ann M. Haralambie)

'A properly trained child's attorney should have the information, or ability to acquire information and consultation, which will permit a professional and objective assessment of what the child's position should be, incorporating any input the child client is capable of providing, in those cases where the child is not sufficiently mature to form and express a reasoned position.'

Independent Counsel for Children, Shannan L. Wilber, Family Law Quarterly

'Attorneys can be trained as to how to represent young children. Additionally, an attorney should be specially trained to establish an effective attorney-client relationship with abused and neglected children. Attorneys who had undergone such training have been found to be more effective advocates for the children, resulting in more specific court orders for treatment and assessment and an accelerated court process. This training should focus on the causes and dynamics of child abuse and neglect, identify aspects of child development relevant to determining an abused and neglected child's psychological needs at various ages, and provide information concerning local intervention programs designed to assist families at risk.'

Resources Guidelines: Improving Court Practice in Child Abuse and Neglect Cases (National Council of Juvenile and Family Court Judges)

'Before becoming involved in an abuse and neglect case, attorneys should have the opportunity to assist more experienced attorneys in their jurisdiction. The should also be trained in, or familiar with:

Legislation and case law on abuse and neglect, foster care, termination of parental rights, and adoption of children with special needs.

The causes and available treatment for child abuse and neglect.

The child welfare and family preservation services available in the community and the problems they are designed to address.

The structure and functioning of the child welfare agency and court systems, the services for which the agency will routinely pay, and the services for which the agency either refuses to pay or is prohibited by state law or regulation from paying.

Local experts who can provide attorneys with consultation and testimony on the reasonableness and appropriateness of efforts made to safely maintain the child in the home.

America's Children At Risk: A National Agenda for Legal Action (American Bar Association Presidential Working Group on the Unmet Legal Needs of Children and Their Families)

'Children, simply by virtue of being children, are denied legal rights that adults take for granted. Many children routinely appear in court without benefit of legal counsel in situations where any adult who had the resources or know-how would retain a lawyer. Many children involved in legal proceedings concerning child abuse and neglect, custody, visitation disputes, status offenses, delinquency, and other important matters are unrepresented from the beginning to the end of their cases. The lack of legal counsel is particularly devastating to children, who often cannot express their own views and may not fully understand the choices they are making . . .'

'Even when children are represented, the representation they receive is sometimes inadequate . . . Children's cases are often 'processed,' not advocated, and too frequently children's interests are poorly represented . . . Meaningful protection of children's rights requires that children be represented by highly skilled counsel at critical stages of critical proceedings that involve children is vital in a system where decisions about children's rights and liberties and those of their parents are decided.'

Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, Rebecca H. Heartz, Family Law Quarterly

'Four different models have been identified as the most common methods of representation. In the first model, an attorney is required although a volunteer may also be appointed. In the second model, both an attorney and a volunteer are required. In the third model, either an attorney or a volunteer may be appointed as GAL. In the last model, the volunteer may be appointed as GAL.

Twenty-three states require that the GAL be an attorney. Another twenty-three states have statutes for the appointment of either an attorney or a volunteer; the local judge makes the appointment. In a small number of states, GAL representation may be provided by social workers, probation officers, or court counselors. When attorneys are appointed as GALs, the may be private attorneys chosen from a list provided to the judge. In other jurisdictions, staff attorneys, like public defenders or legal aid attorneys, represent the child. Some jurisdictions rely on a combination of private and staff attorneys.'

Juvenile Law (Oregon State Bar Continuing Legal Education) Section 12.1

'A child who is the subject of a juvenile court proceeding is neither plaintiff nor a defendant in the traditional sense that those terms are used in legal actions. Such a child is often a victim, having more at stake in a dependency proceeding than the typical victim has in a criminal case. By statute, a child is a party to a juvenile court dependency proceeding.'

Juvenile Law (Oregon State Bar Continuing Legal Education) Section 12.25

'While trial skills, such as knowledge of the evidence code and the ability to cross-examine expert witnesses, can be as crucial in dependency cases as in any other litigation, the client benefits from a lawyer who knows or becomes familiar with the workings of the unique system through which the case is moving. The special and often complex issues raised by Indian children, or putative fathers, if unrecognized or ignored, can cause substantial delays in cases. Attorneys who are not familiar with the juvenile system may fail to realize that a dependency case exists in an environment heavily influenced by social workers.'


STANDARD 3.2
General Duties And Responsibilities Of Counsel To Client;
Avoiding Conflict Of Interests

Counsel or counsel associated in practice should not represent two or more clients who are parties to the same or consolidated juvenile dependency cases unless it is clear there is no conflict of interest between the parties. Counsel should act in a professional manner in zealously advocating the client's position.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should make inquiries necessary to determine at the outset of the proceedings whether a conflict exists in the representation of a party.

2. Attorneys should avoid ex parte communication regarding pending cases with the judicial officer before whom the case is pending.

Qualification Standards for Court Appointed Counsel to Represent Indigent Persons at State Expense (Oregon Judicial Department Policy Statement) Standard 2.1 Attorney Case Loads

Attorneys appointed to represent indigent persons at state expense must provide each client the time and effort necessary to ensure competent and adequate representation. Neither defender organizations nor assigned counsel should accept work loads that, by reason of their excessive size or complexity, interfere with rendering competent and adequate representation or lead to the breach of professional obligations.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

1. All attorneys appearing in dependency actions have the same general mandate: to vigorously represent their clients' interests within applicable legal and ethical boundaries. This includes:

a. investigating the allegations

b. advising clients of risks and benefits of possible courses of action

c. determining clients' interests

d. representing those interests vigorously to the court and other parties

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.2.

Commentary

Juvenile Law (Oregon State Bar Continuing Legal Education) Section 12.23

'The conflict inherent in being retained by an adult to represent a child is more easily resolved. The attorney owes no duty to the person who pays for the representation, and has no confidential relationship with that person. The child is the client. DR 5-108(A)-(B).'


STANDARD 3.3
Role Of Counsel

It is the duty of counsel to determine whether a child client is capable of considered judgment. If counsel determines that the child is not capable of considered judgment, counsel should advocate what is in the client's best interests. When representing parents and children capable of considered judgment, counsel should seek the lawful objectives of the client and should not substitute counsel's judgment in those case decisions that are the responsibility of the client.

Related Standards and Guidelines

American Bar Association Center for Professional Responsibility, Model Rules of Professional Conduct (1983)

Rule 1.14 requires attorneys, insofar as is possible, to maintain a normal attorney-client relationship with a client whose ability to make adequately considered decisions is impaired.

Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings (American Academy of Matrimonial Lawyers)

1. Determination of 'impaired or 'unimpaired' children

There is a rebuttable presumption that children age 12 and above are unimpaired. There is a rebuttable presumption that children below the age of 12 are impaired. Under this standard, the child's counsel, rather than the judge, is to make the judgment whether the child is impaired.

2. Representing 'Unimpaired' Children

a. Unless controlling law expressly indicates otherwise, counsel's role in representing an unimpaired child client is the same as when representing an unimpaired adult client.

b. Unimpaired clients, regardless of age, have the right to set the goals of representation. Counsel for an unimpaired client should discuss the case with the child and counsel him or her with regard to the objectives of representation. Counsel is obliged to seek to attain the objectives of representation set by the client.

c. When representing an unimpaired child, counsel should take appropriate measures to protect the child from harm that may be incurred as a result of the litigation by striving to expedite the proceedings and encouraging settlement in order to reduce trauma that can be caused by the litigation.

3. Representing 'Impaired' Children

a. When a child client, by virtue of his or her impairment, is unable to set the goals of representation, the child's lawyer shall not advocate a position with regard to the outcome of the proceeding or issue contested during the litigation.

b. To the greatest extent feasible, counsel for an impaired child should maintain a normal attorney-client relationship. This should include, whenever possible, advising the client of counsel's role and informing the client of all significant developments in the case. When communicating with the child client, counsel should use terms and concepts comprehensible to a child of the client's age and intellect.

c. When representing an impaired child, counsel should take appropriate measures to protect the child from harm that may be incurred as a result of the litigation by striving to expedite the proceedings and encouraging settlement in order to reduce trauma that can be caused by the litigation.

d. Counsel for an impaired child should use all appropriate procedures to adduce, develop and communicate facts which the decision-maker should consider in deciding the case and which otherwise would not be brought to the decision-maker's attention.

e. Unless the child requests otherwise, counsel should take appropriate steps to make the court aware of the child's preferences.

f. At the conclusion of a trial or hearing, counsel for an impaired child shall not make closing argument or submit a memorandum to the court.

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

Representing Children:

1. The attorney should use understandable language and questioning techniques, and should make all reasonable efforts to ensure that the client understands the court process and proceedings and the outcome of the proceedings. Special efforts should be taken to ensure that the client fully understands any court-approved case plan and that the case plan accurately reflects the court's orders.

2. The child's attorney should assist, and attempt to protect, the child in his or her role as a witness, including, if appropriate, requesting that testimony be taken in chambers.

3. The child's attorney should request, recommend and/or advocate for needed services for the child and make his or her best effort to see that those services are provided. This is particularly critical in cases of children with 'special needs' and children approaching emancipation.

Representing Parents:

1. A parent's attorney has an ethical obligation to zealously represent the client's interests. This entails vigilant protection of the parents' right to raise their children as they think best without state interference.

2. Once the state has intervened, the law mandates family preservation and reasonable efforts and services to keep the family together. If desired by the client, the parent's attorney should advocate for appropriate reasonable services to preserve and reunify the family.

3. Where necessary and appropriate to protect the parents' interests, the parent's attorney should pay insist on formal court processes, and the attorney should pay scrupulous attention to procedural and evidentiary rules.

4. It is important that the attorney involve the parent in the decision-making process at each stage of the proceedings. At each stage the attorney should fully advise the parent of all the immediate and long-term consequences of any decision made.

5. The attorney should fully explain the case plan and court orders to the client and encourage timely compliance.

6. The attorney should be sensitive to any literacy and language limitations of the parents, and utilize interpreters where necessary.

7. Upon request, the attorney should provide legal assistance in accessing services.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

Communication skills/knowledge of child development

1. Communicating with a child client may require efforts beyond those normally required for effective communications with adult clients.

2. Attorneys for children should be especially sensitive to the child's background and stage of development. a. Knowledge of the basic stages of child development will help the attorney develop that sensitivity and age-appropriate communication skills.

3. An attorney for a child age four or older should interview the child to determine the child's wishes and assess the child's well-being.

4. Knowledge of child development will help the attorney to assess the need to seek expert assistance in a particular case and to understand the clinical evaluations that are so often a factor in dependency cases.

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.3.

Commentary

Juvenile Law (Oregon State Bar Continuing Legal Education) Section 12.23

'The conflict between advocating a child's best interests and advocating a child's expressed wishes defies application of simple rules. In general, an infant's attorney advocates as would a guardian ad litem or a CASA. The infant's attorney defines the best interests of the child and advocates for that position. However, barring competency problems, the attorney representing a 17-year-old is in a traditional attorney-client relationship. Between these two clear situations are many cases in which the factors involved in that unique case defy an obvious resolution of the conflict.'

Standards of Practice for Representing Children (Ann M. Haralambie)

It is suggested that the following principles be incorporated into any new standards:

1. The attorney's subjective view of the child's best interests in an inappropriate standard upon which to base a client's position.

2. A child capable of forming a reasonable position should be able to have that position advocated - otherwise nobody is presenting the child's position from the child's perspective.

3. The child's attorney should discuss the child's position and counsel the child about his or her position.

4. When the child's position would be dangerous for the child, and the attorney cannot dissuade the child from the position, the attorney should be authorized to take the minimally intrusive protective action.

5. When the child cannot form a reasonable position (which is not the same as a position the attorney thinks is in the child's best interests), the attorney should advocate a position based on an objective assessment of the child's best interests.

6. regardless of the position advocated, the child's expressed wishes should always be communicated to the court if the child wants them to be.

The following 'presumptions and assumptions' should inform decisions regarding children's needs:

1. provision of basic needs;

2. provision and maintenance of nurturance, stability and contiguity, and the avoidance of unnecessary disruptions that can interfere with the child's growth and development;

3. freedom from abuse or neglect;

4. maintenance of the family - this includes retaining ties among siblings and maintaining ties with biological fathers. In certain circumstances, it also includes at least considering the strong emotional bonds that may exist between a child an a nonbiological caretaker.

Further sources of information on which an attorney may make an informed, objective determination of children's needs:

1. evidence of the child's current desires;

2. opinions by persons such as teachers, counselors, baby-sitters, and neighbors about what the child will desire;

3. evidence of what similarly situated mature people wish had been advocated;

4. the child's separation behaviors when leaving each parent;

5. the child's pattern of asking for a particular person when the child is hurt, afraid, or in trouble;

6. expertise of appropriately qualified medical, mental health, and social work professionals to inform their position.

pp. 207-208. Primary debate since 1966 is whether attorney should decide what was in the child's best interests and advocate that, or whether attorney should be guided by the child's expressed views, even if the attorney felt they were not in the child's best interests.

pp. 211-215.-Proposed Paradigm Shift in Representation Standards. The author states that the attorneys subjective view of the child's best interests in an inappropriate standard upon which to base a client's position. The author sets forth objective criteria by which a child's position can be determined.

Independent Counsel for Children, Shannan L. Wilber, Family Law Quarterly

'[I]ndependent counsel should be appointed to represent children in any proceeding affecting their custody, placement or treatment. As a general rule, the attorney should advocate the wishes of the child-even if the attorney questions the correctness of the child's view. Only when the child is unable to articulate a reasoned preference should the attorney substitute a judgment for that of the client . . . The child's attorney is more than just a 'mouthpiece' for her client. The attorney provides additional functions which further undermine the notion that she is merely an extraneous figure. One critical function is the protection of the child from any unnecessary harm that may flow from the proceedings themselves. Parents engaged in a bitter custody battle or a protracted child abuse proceeding, for example, are often blind to the child's need for a prompt, harmonious resolution. Counsel for the child can oppose unnecessary continuances, move to quash frivolous motions, or request a court order providing counseling or other supportive services for the child.'


STANDARD 3.4
Obligations Of Counsel Regarding Pre-trial Placement

When a child has been removed from the parent's home and placed in shelter care, counsel should advocate for the placement order and other temporary orders the client desires, unless the client is a child incapable of considered judgment, in which case, counsel should advocate for the placement order and other temporary orders that are in the best interests of the child.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should participate actively in the detention or shelter hearing.

2. Prevention of trauma to the child through needless separation from his/her family should be a goal of the child's attorney where appropriate.

Commentary

Standards of Practice for Representing Children (Ann M. Haralambie)

'The child's attorney should be creative in fashioning and considering the options available to the child. In most litigated cases the child's true best interests are not included among the available options. All available choices are usually less than ideal for the child, leaving the attorney to choose the 'least detrimental alternative.' The attorney should not be bound by the options suggested by other parties but should instead make an affirmative effort to fashion alternatives that will best suit the child's needs. The child's attorney is often the best person to propose a middle ground that will be acceptable to the parties.'


STANDARD 3.5
Initial Client Interview And Client Contact

Establishing and maintaining a relationship with the client is the foundation of the attorney-client relationship. Counsel should conduct an initial interview of the client within 72 hours and maintain regular contact with the client throughout the case.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney, or his/her staff, should conduct thorough and complete interviews with the client, and at every stage of the proceedings should ensure that the attorney receives all new information from the client. In order to maintain an accurate assessment of the case, the attorney should conduct follow-up interviews and phone calls to check on progress or changes of circumstance. The attorney, or his/her staff, should regularly phone or write the client in order to prepare the case and to help resolve problems which occur between hearings.

2. The attorney should initiate and answer all correspondence and telephone calls which are necessary to the effective representation of the client.

3. The attorney or his/her staff should interview the child, when developmentally appropriate, to ascertain the child's wishes, needs, and background. It is the attorney's responsibility to ascertain the child's version of the incident.

4. Interviews should be done in an atmosphere where the child feels comfortable and privacy is insured.

5. At the initial interview, where possible, the attorney should inform the child, in language the child can comprehend, of the nature of the proceedings, the role of a lawyer, the child's rights and confidentiality aspects where appropriate.

6. The attorney should attempt to remain on the case until termination of jurisdiction to insure continuity of representation.

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

C-1. Meet with Child

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.5.

Commentary:

Standards of Practice for Representing Children (Ann M. Haralambie)

'There are very few circumstances in which it would not be imperative to meet with the child, and I cannot think of any circumstances where it would hurt . . . Older children may be able to articulate their own needs quite accurately. Younger children may demonstrate their needs more through their behavior or emotions. Unless the child's attorney spends adequate time with the child on an ongoing basis, those needs may never be shown. It may be necessary to touch base with the parents or professionals involved with the child again after talking to the child. Therapists are particularly helpful resources in interpreting the child's behaviors and statements . . . Children, unlike adults, are not used to talking with people they do not know well. An attorney must establish at least some level of relationship with the child before the child is likely to say anything at all that will be useful. Major adjustments are necessary in one's usual interviewing techniques when children are involved. A good start is to begin thinking about 'talking with,' rather than 'interviewing,' the child . . . An attorney can do several things in the first meeting to convey important information to the child. First, the attorney should explain who he or she is and what the attorney's role in the case is. Young children in particular are not likely to remember and may have been told erroneous information about your role by other people.'


STANDARD 3.6
Independent Investigation

Counsel should conduct a thorough, continuing and independent review and investigation of the case, including obtaining information, research and discovery in order to prepare the case for trial. Counsel should not rely solely on the report of the caseworker.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should have a complete familiarity with the facts of the case. This may involve reviewing the court file and other case-related documents, bringing discovery motions, interviewing witnesses, procuring experts and otherwise conducting an independent investigation.

2. The attorney, or his/her staff, is responsible for obtaining information regarding the parents' and Department of Children's Services' view of the case.

3. The complete legal file, whether an old or recently active case, should be reviewed.

4. Counsel shall investigate the interests of the minor beyond the scope of the juvenile proceeding and report to the court other interests of the minor that may need to be protected by the institution of other administrative or judicial proceedings.

5. The attorney should investigate what services were offered to the family to maintain the child in the home or prevent removal of the child from the home or to reunify the child with the family.

6. The attorney should consider whether a home visit to the client is appropriate and feasible.

7. The attorney should review relevant records and reports such as school records, medical records, court ordered evaluations and supplemental materials as soon as possible.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

All attorneys should investigate as necessary to ascertain the facts, including interviewing of witnesses. Attorneys should not rely solely on the report of the social worker.

1. The attorney should determine the following from the client:

a. Extent of contact agency has had with parent/child prior to removal.

b. What services would have been helpful in avoiding removal.

c. If client is a parent or child, client's goals and concerns about placement and whether there are relatives or close family friends who would be willing to take child.

d. If client is a parent and incarcerated, offense, length of incarceration, parent's plans after release, parenting/counseling and other programs available at prison; arrangements necessary to get parent to hearings.

e. If the client is a child, the attorney should:

i. Meet with child away from court setting and try to provide continuity and develop a trusting relationship. Explain, in age-appropriate language, the nature of the attorney-client relationship.

ii. Visit child in his/her home and observe child and child's interactions with others in the home. Assess the severity of the injuries and the child's general health and condition.

iii. Ask about and investigate resources that the child can think of, including relatives or friends.

iv. Regardless of the child's age, attempt to interview or at least observe the child. Observations are helpful in determining the accuracy of the petition and court report, or the statements of witnesses or parties.

v. Investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may be protected by other administrative or judicial proceedings.

2. The attorney should determine the following from the Agency Social Worker:

a. family's prior contacts with DSS

b. who made decision to remove child: child welfare worker or police

c. basis for removal, specific harms which removal was designed to prevent

d. alternatives to removal such as in-home services or removal of the perpetrator, and whether these services were considered prior to removal

e. contacts agency has made with parent and child since child was removed.

3. The attorney should interview the following witnesses:

a. representatives of other agencies with whom the family has been involved, either through DSS referral or on the family's own initiative

b. persons who have had significant contact with the child and may have relevant information about the child.

4. The attorney should obtain and review the agency's records. Where necessary, attorneys for parents and children should determine and utilize available discovery procedures. The attorney should look for:

a. Case plan

b. Services provided or requested by the family prior to the child's removal

c. Arrangements for visitation

d. Projected date of the child's return.

5. The attorney should obtain and review all court pleadings, supporting documents, and necessary and relevant records (including medical, psychological, school, etc.).

6. Attorneys should be familiar with local experts who can provide attorney with consultation and testimony on the reasonableness and appropriateness of efforts made to maintain the child in the home.

7. The child's attorney should investigate as many placement alternatives as possible, appropriate to the child's situation and discuss these possibilities with the child.

a. Knowledge of community and other resources independent of the child's social worker will be helpful in this regard.

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

C-2. Investigate

(1) Review child's social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, and other records relevant to the case.

(2) Review court files of child and siblings, case-related records of the social service agency and other service providers.

(3) Contact lawyers for other parties and nonlawyer guardians ad litem or court-appointed special advocates (CASA) for background information.

(4) Contact and meet with the parents/legal guardians/caretakers of the child, with permission of their lawyer.

(5) Obtain necessary authorization for the release of information.

(6) Interview individuals involved with the child, including school personnel, child welfare case workers, foster parents and other caretakers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses.

(7) Reviewing relevant photographs, video or audio tapes and other evidences.

(8) Attending treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences or staffings concerning the child as needed.

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.6.

Commentary

Standards of Practice for Representing Children (Ann M. Haralambie)

'Where the child's attorney is permitted to conduct discovery on behalf of the child, he or she should consider using all available discovery tools, both to obtain information not voluntarily provided and to limit the issues to be litigated. Often the parties will voluntarily provide documents and permit interviews without formal discovery. However, formal discovery may be necessary with some professionals and with uncooperative parents.'


STANDARD 3.7
Pretrial Motions

Counsel should research, prepare, file and argue appropriate pretrial motions or responses whenever there is reason to believe the client is entitled to relief. Counsel should file briefs or memoranda in support of such motions or responses.

Related Standards and Guidelines

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

C-3. File Pleadings. Requested relief may include:

(1) A mental or physical examination of a party or the child;

(2) A parenting, custody or visitation evaluation;

(3) An increase, decrease, or termination of contact or visitation;

(4) Restraining or enjoining a change of placement;

(5) Contempt for non-compliance with a court order;

(6) Termination of the parent-child relationship;

(7) Child support;

(8) A protective order concerning the child's privileged communications or tangible or intangible property;

(9) Request services for child or family; and

(10) Dismissal of petitions or motions.

C-4. Request Services. Consistent with the child's wishes, the child's attorney should seek appropriate services (by court order if necessary). These services may include;

(1) Family preservation-related prevention or reunification services;

(2) Sibling and family visitation;

(3) Child support;

(4) Domestic violence prevention, intervention, and treatment;

(5) Medical and mental health care;

(6) Drug and alcohol treatment;

(7) Parenting education;

(8) Semi-independent and independent living services;

(9) Long-term foster care;

(10) Termination of parental rights action;

(11) Adoption services;

(12) Education;

(13) Recreational or social services; and

(14) Housing.

C.-5. Child with Special Needs. Consistent with the child's wishes, the child's attorney should assure that a child with special needs receives appropriate services to address the physical, mental, or developmental disabilities. These services may include, but should not be limited to:

(1) Special education and related services;

(2) Supplemental security income (SSI) to help support needed services;

(3) Therapeutic foster or group home care; and

(4) Residential/in-patient and out-patient psychiatric treatment.

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should timely and appropriately file and respond to motions which would be important in the effective representation of the client. Before filing such motions, counsel must discuss with opposing counsel to resolve the issues.


STANDARD 3.8
Negotiating A Settlement

Counsel should participate in settlement negotiations to seek expeditious resolution of the case and to obtain petition and disposition terms favorable to the client.

Related Standards and Guidelines

Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings (American Academy of Matrimonial Lawyers)

1. As a general rule, counsel for an impaired child should encourage settlement and should not undermine settlement efforts by the parties. In exceptional cases, where counsel reasonably believes that the court would not approve the settlement if it were aware of certain factors, counsel should bring those facts to the court's attention.

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. Counsel should be familiar with available mediations services. 2. Counsel should promptly communicate all terms and conditions of any offers of settlement to the client.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

Jurisdiction Hearing: Adjudication Without Trial

1. If the attorney concludes, after full investigation and preparation, that the petition will probably be sustained, the attorney should so advise client and request consent to discuss settlement of case.

2. The attorney should keep client advised of all settlement discussions and communicate all proposals made by other parties.

3. The attorney should explore options to removal of child such as informal supervision, mediation, and intensive in-home services.

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

C-6 Negotiate Settlements. The child's attorney should participate in settlement negotiations to seek expeditious resolution of the case, keeping in mind the effect of continuances and delays on the child. The child's attorney should use suitable mediation resources.

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.8.

Commentary:

Standards of Practice for Representing Children (Ann M. Haralambie)

'The child's attorney can conduct negotiation with the parents and their attorneys effectively by focusing on the needs of the child . . . In abuse cases, the child's attorney's recommendation of particular types of treatment (generally proposed initially by the therapist or evaluator in the case) as a means of regaining more time with the child and building a better parent-child relationship in the long-term may get the parent refocused on the child's needs in a positive way.'


STANDARD 3.9
Hearings

Counsel should be prepared before and during hearings to provide quality representation and advocacy for the client.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should be prepared to effectively argue the client's case in court including preparing for direct and cross examination, opening and closing arguments and, when appropriate, filing supporting trial briefs and points and authorities.

2. The attorney should evaluate what discovery is needed at each stage of the proceedings.

3. The attorney should request appropriate court orders at all hearings.

4. The attorney should determine if the child wishes to be present in court, and whether the child wishes to address the court in or out of the presence of other parties.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

1. All attorney should be aware of the statutory requirements regarding time limits and continuances. They should also inquire into local hearing practices.

2. Where circumstances warrant, the attorney should promptly make any motions material to the protection of the client's rights, such as motions to dismiss the petition, to suppress evidence, or for mental examination. Such motions should ordinarily be made in writing and should be scheduled for hearing prior to the jurisdiction hearing.

3. Detention Hearings All attorneys should:

a. Obtain copies of all relevant documents

b. Interview the client

c. Present facts and arguments regarding:

i. Jurisdictional sufficiency of allegations in petition

ii. The necessity of detention and whether reasonable efforts were made to prevent removal

iii. A plan for release of child prior to jurisdictional hearing or, if child remains in placement, arrangements for visits

d. Explore options to detention of child such as informal supervision, mediation, and intensive in-home services.

4. Contested Jurisdiction Hearing

a. Present all evidence relevant to the allegations in the petition obtained during the attorney's pretrial investigation.

b. Attorneys should be familiar with those statutes that deal with children as witnesses. These may include statutes regarding:

i. excluding parents from the courtroom

ii. support persons in the courtroom for young children

iii. reasonable periods of relief from testifying

iv. age-appropriate questions and restriction of unnecessary repetition of questions

v. permission for leading questions in cases of child molestation

vi. exceptions to rules of evidence

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

D-1 Court Appearances The child's attorney should attend all hearings and participate in all telephone or other conferences with the court unless a particular hearing involves issues completely unrelated to the child.

D-2 Client Explanation The child's attorney should explain to the client, in a developmentally appropriate manner, what is expected to happen before, during and after each hearing.

D-3 Motions and Objections. The child's attorney should make appropriate motions, including motions in limine and evidentiary objections, to advance the child's position at trial or during other hearings.

D-4 Presentation of Evidence The child's attorney should present and cross examine witnesses, proffered exhibits, and provide independent evidence as necessary.

D-5 Child at Hearing In most circumstances, the child should be present at significant court hearings, regardless of whether the child will testify.

D-6 Whether Child Should Testify The decision on whether to call the child as a witness should include consideration of the child's need or desire to testify, any repercussions of testifying, the necessity of the child's direct testimony, the availability of other evidence or hearsay exceptions which may substitute for direct testimony of the child, and the child's developmental ability to provide direct testimony and withstand possible cross-examination. Ultimately, the child's attorney is bound by the child's direction concerning testifying.

D-7 Child Witness The child's attorney should prepare the child to testify. This should include familiarizing the child with the courtroom, court procedures, and what to expect during direct and cross-examination and ensuring that testifying will cause minimum harm to the child.

D-8 Questioning the Child The child's attorney should seek to ensure that questions to the child are phrased in a syntactically and linguistically appropriate manner.

D-9 Challenges to Child's Testimony/Statements The child's attorney should be familiar with the current law and empirical knowledge about children's competency, memory, and suggestibility and, where appropriate, attempt to establish the competency and reliability of the child.

D-10 Jury Selection If a jury trial is possible, the child's attorney should participate in jury selection and drafting jury instructions.

D-11 Conclusion of Hearing If appropriate, the child's attorney should make a closing argument, and provide proposed findings of fact and conclusions of law. The child's attorney should ensure that a written order is entered.

D-12 Expanded Scope of Representation The child's attorney 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. For example:

(1) Child support

(2) Delinquency or status offender matters

(3) SSI and other public benefits

(4) Custody

(5) Guardianship

(6) Paternity

(7) Personal injury

(8) School/education matters, especially for a child with disabilities

(9) Mental health proceedings

(10) Termination of parental rights; and

(11) Adoption


STANDARD 3.10
Disposition

Counsel should be prepared to present a disposition plan on behalf of the client, as well as to respond to inaccurate or unfavorable information presented by other parties, ensuring that all reasonably available mitigating and favorable information is presented to the court and obtaining all appropriate orders to protect the client's rights and interests.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. The attorney should try to familiarize herself/himself with the available resources for assisting clients in overcoming the problems which led to the Dependency Court proceeding or at least be able to insure that the client receives guidance in this area.

2. The child's attorney should independently evaluate the disposition plan and, where appropriate, offer alternative plans to the court.

3. The attorney should explore the possibility of placement with appropriate non-custodial parents and relatives.

4. When placement is an issue, the attorney should be aware of issues related to placement, including but not limited to:

a. the necessity of placement;

b. alternatives to placement;

c. relative placements;

d. the impact of removal and placement on the child;

e. the importance of placing siblings together when appropriate;

f. the appropriateness of the placement;

g. the efforts made to ensure a smooth, timely and appropriate transition to a new placement;

h. the effect of the placement on visitation by parents, siblings and other relatives;

i. the effect of placement on the service needs of the child;

j. the transracial, transcultural and language aspects of placement.

5. When siblings have been separated, the attorney should, when appropriate, advocate for reunification in order to reduce trauma and to keep part of the family intact.

6. When returning the child to the parent's home, the attorney should consider efforts to ensure a smooth, timely and appropriate transition.

7. The attorney should explore and argue for appropriate visitation orders between the child, parents, siblings and other relatives or significant persons.

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

Dispositional Hearing

1. The attorney should be familiar with dispositional alternatives and community services that might be useful in the formation of a dispositional plan.

2. The attorney should investigate all sources of evidence that will be presented at the hearing and interview material witnesses. The attorney also has an independent duty of investigate the client's circumstances, including such factors as previous history, family relations, economic condition and any other information relevant to disposition.

3. The attorney should seek to secure the assistance of psychiatric, psychological, medical or other expert personnel needed for purposes of evaluation, consultation or testimony with respect to formation of a dispositional plan. The attorney should inquire into local procedures for retention and appointment of experts.

4. Counseling of client prior to disposition:

a. The attorney should explain to the client the nature of the hearing, the issues involved, and the alternatives open to the court. He should also explain fully the nature, obligations and consequences of any proposed dispositional plan.

b. When psychological or psychiatric evaluations are ordered or arranged by the attorney prior to disposition, the attorney should explain the nature of the procedure and encourage the client's cooperation.

c. The attorney should examine fully any witness whose evidence is damaging to the client's interests and challenge the accuracy, credibility and weight of any reports or other evidence before the court.

d. When a dispositional decision has been reached, it is the attorney's duty to explain the nature, obligations and consequences of the disposition to the client, and the need for the client to cooperate with the dispositional orders.

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

D-13 Obligation after Disposition The child's attorney should seek to ensure continued representation of the child at all further hearings, including at administrative or judicial actions that result in changes to the child's placement or services, so long as the court maintains its jurisdiction.

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.10.


STANDARD 3.11
Post-disposition

The lawyer's responsibility to the client does not end with dismissal of the petition or entry of a final dispositional order. Counsel should be prepared to counsel the client and provide or assist the client to secure appropriate legal services in matters arising from the original proceeding.

Related Standards and Guidelines

Los Angeles County Issues Guidelines for Court Appointed Attorneys in Dependency Court

1. Attorneys should check on the timely implementation of orders for visitation, special needs services, counseling or other services.

2. If a child's attorney feels that a court's determination is contrary to the child's interests, a notice of rehearing or appeal should be considered to assure that the child's rights are protected.

Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995)

E-1 Review of Court's Order The child's attorney should review all written orders to ensure that they conform with the court's verbal orders and statutorily required findings and notices.

E-2 Communicate the order to child

E-3 Implementation the child's attorney should monitor the implementation of the court's orders and communicate to the responsible agency and, if necessary, the court, any non-compliance.

See American Bar Association Juvenile Justice Standards: Counsel for Private Parties under Standard 2.11.


STANDARD 3.12
Review Permanent Planning And Termination Of Parental Rights Hearings

Counsel's role is most critical at the review, permanent planning and termination of parental rights hearings, where decisions of whether the family will be reunited or permanently severed are made. Counsel should be fully prepared to represent the client at all reviews and must provide the most zealous and meticulous representation at the termination of parental rights stage of the proceedings.

Related Standards and Guidelines

Practice Guidelines for Attorneys Practicing Dependency Law in Alameda, San Francisco, and Santa Clara Counties

Review Hearings

1. Planning for the hearing

a. All attorneys should confer periodically with their client and the social worker and review:

i. service plan

ii. extent of compliance with the plan

iii. continued appropriateness of plan

b. In monitoring the provision of dispositional services, the attorney should return the matter to court if necessary to protect the client's interests.

c. Attorneys should make sure they receive a supplemental report and a notice of the hearing from the social worker or probation officer at least 10 calendar days before the hearing.

2. At all review hearings, attorneys for all parties should present evidence relevant to the appropriateness of the child's continued dependency and placement, including but not limited to evidence regarding the provision of reasonable services and ensure that appropriate findings are made.

Rehearings

1. Orders of a referee may be reviewed by a judge of the juvenile court upon application by the child or parents or guardians.

2. A judge may also order a rehearing on the judge's own motion.

WritsAppeals

1. All attorneys should advise their clients of their right to seek further judicial review by means of a writ or by appeal.

Commentary:

Standards of Practice for Representing Children (Ann M. Haralambie)

The child's attorney in a child abuse/neglect case frequently can be the most effective in advocating for the child outside of the trial or review hearing process.

The attorney should play an integral role in the case management or case review team, which is typically compose of at least the social worker and all professionals treating the family members. Multidisciplinary teams, either standing groups or groups convened for each particular case, are clearly the best way to treat child abuse/neglect cases in the legal system. If such a team is not already in place, the child's attorney should propose or convene one to assist with the case. A multidisciplinary team, with its members' varying experience and expertise, is necessary to fully appreciate the family dynamics and the needs of the child and his or her family and to fully explore placement and treatment options.

Especially if the child is in an out-of-home placement, the attorney should insist on thorough review of the child's case and speedy creation and implementation of a case plan to provide services that will enable the child to be returned home as soon as possible or a permanent plan for out-of-home care if return home is not feasible . . .

Caseworkers are almost always overburdened, and the attorney who actively advocates for services for a child client, being the squeaky wheel, stands a good chance of moving the client's case higher on the caseworker's priority list.'