| Specific Standards For Representation In Juvenile Dependency Cases |
This Chapter pertains to representation of children and parents in juvenile
dependency cases. These cases are primarily civil in nature and procedure,
but are often referred to as 'quasi-criminal' because of the significance
of the rights and deprivations involved. At stake for children is their
liberty, their right to membership in their family of origin and their
right to be safe, healthy and protected. At stake for parents is their
right to raise their children as they think best without state interference,
and ultimately, the absolute and final termination of their parental rights.
Practice in juvenile dependency cases is unique and challenging, requiring
continual training to assure the best legal representation of clients.
Juvenile dependency cases may be as different and varied as the children
and families involved in them. These training and practice standards are
intended to help attorneys better meet the needs of their clients in juvenile
dependency cases, and to improve the level of practice in these cases.
The participation of counsel on behalf of all parties subject to juvenile
and family court proceedings is essential to the administration of justice
and to the fair and accurate resolution of issues at all stages of those
proceedings. These Standards recognize the importance of independent representation
for children in juvenile dependency cases, and advocate for counsel to
represent the child's articulated position in all but the exceptional
case. STANDARD 3.1 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. Implementation 1. Every dependency case is different and varied approaches may be
required in the legal representation of a child or parent. Effective
legal practice in dependency cases requires a wide variety of skills
unique to this practice. 2. In addition to meeting the requirements for experience and training
contained in Standard 1.1, supra, counsel for children, parents
or guardians in dependency cases should: a. meet the requirements of the QUALIFICATION STANDARDS FOR COURT-APPOINTED
COUNSEL TO REPRESENT INDIGENT PERSONS AT STATE EXPENSE, Oregon Judicial
Department (1990), Standard 3.1 G, which provides, inter alia,
that an attorney is qualified for appointment to juvenile cases, under
ORS Chapter 419, if he or she: i. 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: 1) Oregon Revised Statutes, Chapter 419, Oregon Juvenile
Code. 2) Oregon Revised Statutes, Chapter 417, Interstate Compact
on Juveniles and the Community Juvenile Services Act. 3) Oregon Revised Statutes, Chapter 418, Child Welfare
Services and Reporting of Child Abuse. 4) Oregon Revised Statutes, Chapter 420, Juvenile Training
Schools and Youth Care Centers. 5) Oregon State Bar, Juvenile Law (1984, Supp. 1988).
6) Pub. L. 96-272, Adoption Assistance and Child Welfare Act
of 1980. 7) Pub. L. 95-608, Indian Child Welfare Act of 1978, 25 USC secs.
1901-1963 (1982). 8) Education of the Handicapped Act of 1975, 20 USC secs. 1400-1485
(1982, Supp. 1987). 9) Pub. L. 93-112, Title V, sec 504, Rehabilitation Act of 1975,
20 USC sec. 794 (1982). b. be familiar with: i. the causes and available treatment for child abuse and neglect;
ii. the child welfare and family preservation services available
through State Offices for Services to Children and Families (formerly
Children's Services Division (CSD) referred to hereinafter as SOSCF)
and available in the community and the problems they are designed
to address; iii. the basic structure and functioning of SOSCF and the juvenile
court, including court procedures, the functioning of the Citizen
Review Boards (hereinafter referred to as CRB) and Court Appointed
Special Advocates (hereinafter referred to as CASA) programs. c. Counsel new to dependency cases are encouraged to work with a
mentor for the first three months and at a minimum should observe
or co-counsel each type of dependency hearing from shelter care through
review of permanent plan prior to accepting appointments. d. In termination of parental rights cases, counsel for children
or parents must meet the standards for dependency cases and have handled
dependency cases for a minimum of six months as a full-time juvenile
defender or must have handled at least 25 juvenile dependency cases
that have gone past the jurisdictional phase. 3. Counsel should develop a basic knowledge of child development and
adequate communication skills to communicate with child clients and
witnesses. a. Interviewing techniques should be age appropriate and take into
consideration the type of abuse the child is alleged to have suffered.
b. Communicating with a child client, especially with regard to legal
matters, may require efforts beyond those normally required for effective
communications with adult clients. Counsel for children should therefore
be especially sensitive to the child's stage of development, including:
i. cognitive, emotional and social growth stages; ii. level of education; iii. cultural context; and iv. degree of language acquisition. c. Knowledge of the basic stages of child development will help counsel
develop sensitivity and age-appropriate communication skills. d. As with any client, counsel may advise the child client about
their position in the case, but counsel should recognize that the
child client may be more susceptible to intimidation and manipulation,
and should ensure that the client's ultimate decision actually reflects
the child's actual desires. 4. Counsel for children, parents or guardians in dependency cases should
also visit at least two of the following: a. a shelter home or facility; b. a foster home; c. a group home; d. a residential treatment facility; e. the Oregon State Hospital Child or Adolescent Psychiatric Ward;
or f. an outpatient treatment facility for children. 5. All attorneys representing children, parents or guardians in dependency
cases should average at least 15 hours of Continuing Legal Education
(CLE) each year, at least 8 hours of which should relate to the practice
of juvenile law. a. Counsel are encouraged to seek training in the subject areas listed
in Implementation 2, 3 and 4 supra. b. Counsel are also encouraged to seek training in the following
areas: i. substance abuse and resources for substance abusing families;
ii. cultural and ethnic differences as they relate to child rearing;
iii. government benefits available in dependency cases, such as
Social Security payments including non-needy relative grants, AFDC
and AFDC-FC, Adoption Assistance Programs, and crime victims programs;
iv. Independent Living Programs; v. emancipation laws and programs; vi. Family Preservation Services; vii. resources for the diagnosis and treatment of sexual abuse,
physical abuse, and emotional abuse; viii. patterns of child growth as related to neglect; ix. resources for the treatment and recognition of non-organic
failure to thrive; x. Educational, mental health and other resources for special needs
children; xi. the use and appropriateness of psychotropic drugs for children;
xii. domestic violence, its effect on children and appropriate
resources; xiii. immigration law issues in juvenile court; xiv. transitional aspects of placement and the child's return home;
xv. the importance of placing siblings together when appropriate;
xvi. the appropriateness of various types of placement; xvii. the efforts that should be made to ensure a smooth, timely
transition; xviii. the effect of the placement on visitation by parents, siblings
and other relatives; xix. the effect of the placement on the service needs of the child;
xx. the transracial, transcultural and language aspects of the
placement; xxi. risk assessment prior to reunification; xxii. the basics of case planning; xxiii. accessing private insurance for services; xxiv. consolidated cases in the family court; xxv. the Indian Child Welfare Act, Native American families and
appropriate resources; xxvi. the Uniform Child Custody Jurisdiction Act (UCCJA); xxvii. the Parental Kidnapping Protection Act; xxviii. the Interstate Compact for the Placement of Children; xxvix. the Interstate Compact on Juveniles; xxx. guardianships; xxxi. adoption placement preferences. STANDARD 3.2 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. Implementation 1. Counsel should comply with Standard 1.2, Implementation 5, supra.
Counsel should be especially cautious when accepting representation
of more than one parent, guardian or child. Counsel should avoid representing
both parents in dependency cases and should never represent both parents
in cases that involve allegations of sexual, physical or emotional abuse,
or when the interests of the parents may be adverse. Counsel should
avoid representing multiple siblings when their interests may be adverse
and should never represent siblings where it is alleged that one sibling
has physically or sexually abused another sibling. Child clients may
not be capable of consenting to multiple representation even after full
disclosure. 2. Counsel should preserve the attorney-client privilege and not disclose,
without the client's permission or as otherwise provided by law, confidential
information. Counsel should try to avoid publicity connected with the
case. Counsel should be cognizant of the emotional nature of these cases,
the confidential nature of the proceedings and the privacy needs of
the client. 3. Counsel should initiate and answer all correspondence and telephone
calls which are necessary to the effective representation of the client.
4. Counsel should avoid ex parte communication regarding pending cases
with the judicial officer before whom the case is pending. 5. Counsel should maintain professional decorum when appearing before
the juvenile court. Counsel should identify for the record any person
who is present in the courtroom on behalf of a client. 6. Counsel may not contact represented parties without the consent
of their counsel. STANDARD 3.3 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. Implementation 1. In determining whether a child is capable of considered judgment,
counsel should consider: a. the child's chronological and intellectual age; b. the child's developmental stage; c. the child's sophistication and experience; d. whether the child is articulating a position concerning the issues
of the case; and e. the presence of undue influence. 2. Whether a child is capable of considered judgment and able to contribute
to a determination of their position in the case depends on the context
and circumstances at the time the position must be determined. A child
may be able to determine some positions in the case but not others.
3. Ideally, a guardian ad litem should be appointed in every case in
which the child is incapable of considered judgment. These standards
suggest, but do not require such appointments because of the expense
associated with such appointments and the long-term practice in Oregon
courts of not appointing guardians ad litem in juvenile court cases.
a. Where a guardian ad litem has been appointed, primary responsibility
for determination of the posture of the case rests with the guardian
ad litem and the child. b. Where a guardian ad litem has not been appointed, counsel should
consider asking that one be appointed and consideration should be
given to appointment of an appropriately trained CASA or other qualified
volunteer as guardian ad litem. 4. When representing parents and children capable of considered judgment,
decisions that are ultimately the client's to make include whether to:
a. admit the allegations of the petition; b. agree to jurisdiction, wardship and temporary commitment to SOSCF;
c. accept a conditional postponement; or d. agree to specific services or placements. 5. Counsel should advise the client concerning the probable success
and consequences of adopting any posture in the proceedings. It is the
duty of counsel to give the client the information necessary to make
an informed decision, including advice and guidance, but to not overbear
the will of the client. Counsel may not advocate a position contrary
to the client's expressed position. 6. When representing parents and children capable of considered judgment,
counsel is bound by and should advocate for the client's definition
of his or her interests, and may not substitute counsel's judgment for
the client's, nor ignore the client's wishes because they are perceived
not to be in the best interests of the child. 7. If the client is not capable of considered judgment and a guardian
ad litem has not been appointed, counsel should inquire thoroughly into
all circumstances that a careful and competent person in the child's
position should consider in determining the child's best interests with
respect to the proceeding. After consultation with the child, the parents
(where their interests do not appear to conflict with the child's),
and any other family members or interested persons, such as the caseworker
or child's therapist, counsel shall advocate what counsel determines
to be the best interests of the child. 8. Where there is a conflict between what counsel has determined would
be in the best interests of a child who is not capable of considered
judgment, and the child's stated desires, counsel must to the greatest
extent possible resolve the conflict by working with the young client,
although this sensitive issue cannot always be avoided or completely
resolved. If unable to resolve the conflict, counsel should communicate
the child's wishes to the court but advocate for what counsel determines
to be the best interests of the child. 9. Unless inconsistent with the client's interests, counsel should
cooperate with other parties to the case. STANDARD 3.4 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.
Implementation 1. Counsel should be familiar with statutory and case law that requires
SOSCF to make reasonable efforts to prevent removal of a child and that
removal is only allowed in cases of imminent danger. 2. Counsel should be familiar with the types of placements available
to children and placement issues including: a. the necessity of placement; b. alternatives to placement; c. relative placement; 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. efforts that can be made to ensure a smooth transition to a new
placement; h. the effect of the placement on visitation; i. the effect of the placement on service needs of the child or
family; and j. the transracial, transcultural and language aspects of the placement.
3. At the shelter care hearing, counsel should: a. obtain copies of all relevant documents; b. take time to talk to the client, asking for a recess or continuance
if necessary; c. assist the client in exercising his or her right to an evidentiary
hearing to demonstrate to the court that the child can be returned
home without further danger of suffering physical injury or emotional
harm, endangering or harming others, or not remaining within the reach
of the court process prior to adjudication; d. where appropriate, present facts and arguments regarding: i. jurisdictional sufficiency of the petition; ii. adequacy of notice provided to parties, particularly if they
are not present; iii. the necessity of shelter care; iv. why continuation of the child in the home would be contrary
to the child's welfare or why it is in the best interest and for
the welfare of the child that the child be removed from home or
continued in care; v. whether reasonable efforts were made to prevent removal; vi. whether reasonable and available services can prevent or eliminate
the need to separate the family; vii. whether the placement proposed by SOSCF is the least disruptive
and most family-like setting that meets the needs of the child;
viii. the possibility of placement with appropriate non-custodial
parents and relatives; ix. a plan for release of the child prior to the jurisdictional
hearing; x. if the child remains in shelter care, arrangements for visits
and alternatives to shelter care to be explored such as relative
placement, intensive in-home services and mediation. e. propose return to parents or placement that is the least restrictive
with regard to the client. 4. If a child is returned to parents or placed in shelter care or
other state placement, counsel for the child should assure that the
child's needs for safety and right to receive treatment are met by the
child's caretakers or agencies responsible for the child's care. Counsel
should inform the Court, SOSCF and the caretakers for the child about
any medical, psychiatric, or security needs of the client. 5. Counsel should request any temporary orders which the client desires
or, if representing a child not capable of considered judgment, which
are in the best interests of the child, including: a. temporary restraining orders including orders expelling an allegedly
abusive parent from the home; b. orders governing future conduct of the parties, i.e. remaining
clean and sober while the child is present, etc.; c. orders for any services agreed upon prior to adjudication; d. visitation orders that are reasonable and flexible and take into
consideration the parties' work and counseling schedules and available
transportation and that specify the terms and conditions of visitation;
e. orders for the parent(s) to pay child support if appropriate;
f. orders for SOSCF to investigate relatives and friends of the family
as potential placements, or to place sibling groups together; and
g. Orders for the agency to provide appropriate treatment for the
child. 6. Counsel should inform the client of the possibility for rehearing
of the shelter care order or appeal from a shelter care order of a referee
to a judge and the possibility of pursuing a writ of habeas corpus.
7. If the court sets conditions of the child's placement, counsel should
explain to the client and any third party the conditions and potential
consequences of violating such conditions. Counsel should seek review
of shelter care decisions every ten days or as appropriate and advise
clients or any third parties of changes in conditions for pre-trial
placement that would be likely to get the Court to agree with the client's
plan. 8. Counsel should ask the court to inquire of parties concerning the
paternity of the child and the applicability of the Indian Child Welfare
Act (ICWA) or the Uniform Child Custody Jurisdiction Act (UCCJA). STANDARD 3.5 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. Implementation 1. Counsel should comply with Standard 1.2, Implementations 1, 2 and
3, and Standard 1.3, supra, and in addition, upon being retained
or appointed, counsel should make an initial contact with the client
or the client's caretaker within 24 hours and, where appropriate conduct
an initial interview within 72 hours. At the initial interview, counsel
should explain to the client in age appropriate language: a. juvenile court and SOSCF procedures; b. the client's rights; c. the role and responsibilities of the attorney; d. the role of each player in the system; e. alternatives and options available to the client; f. the consequences of selecting one option over another. 2. Counsel should give the client time to ask questions and consider
the alternatives. Counsel should obtain information from the client
about: a. the client's prior contacts with SOSCF; b. the client's knowledge about the allegations of the petition;
c. the accuracy of information provided by the state supporting the
petition; d. alternative or additional allegations that should be added to
the petition; e. services provided prior to removal or intervention; f. reasons for removal or intervention; g. services the client feels would have avoided the need for removal;
h. alternatives to removal including relative placements, in-home
services or removal of the perpetrator; i. current efforts to reunify the family; j. family history including identity of prior caretakers of the
child; k. services needed by the child, parents or guardians; l. the client's concerns about placement; m. the client's long and short-term goals; n. current visitation and the client's desires concerning visitation;
o. whether the client wishes to attend the hearing and if the client
is a child, whether the client wishes to address the court outside
the presence of the other parties; p. the applicability of the Indian Child Welfare Act and relevant
other cultural, religious, social and sexual preference issues; and
q. any other relevant information. 3. Counsel representing a child should gather information from the
child and the child's caretakers, caseworker and therapist, if any,
to assist in determining whether the child is capable of considered
judgment. 4. All child clients should, at a minimum, be personally contacted
by counsel and/or counsel's trained and qualified staff to determine
the client's wishes, if possible, and to assess the client's well-being.
It is important for counsel or counsel's staff to observe the child,
the child's interactions with others in the home or foster home, and
to assess the severity of the injuries and the child's general health
and condition. Children four years of age or old enough to communicate
should be personally interviewed in private by counsel. Interviews of
children should occur away from court. 5. Counsel should have contact with clients: a. prior to court hearings and CRB reviews; b. whenever notified that the child's placement is changed; or c. when counsel is apprised of emergencies or significant events
impacting the child. 6. For younger children, counsel, personally or through their staff,
are encouraged to have regular face-to-face contact with the client
in the child's home or foster home every three months or as needed.
Older children should be contacted by phone, in their homes, at school
or at the attorney's office with a similar frequency. 7. Counsel should confer with their clients as often as necessary after
the initial interview to ascertain all relevant facts and otherwise
necessary information. After counsel is fully informed on the facts
and the law, counsel should advise the client concerning all aspects
of the case. STANDARD 3.6 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. Implementation 1. Counsel should, where appropriate, conduct an in-depth interview
with the client covering: a. the events giving rise to the allegations in the petition; b. the existence of witnesses or other potential sources of information;
and c. information about the child's current placement, condition and
needs. 2. Counsel should be familiar with, and where appropriate, obtain the
assistance of, local juvenile and mental health experts who can provide
attorneys with consultation, evaluation of their clients or other parties,
including parent-child interaction assessments, and testimony on issues
in the case. 3. Counsel should have potential witnesses, including adverse witnesses
interviewed, and where appropriate subpoenaed by an investigator or
other appropriately trained person. If counsel conducts a witness interview,
counsel should do so in the presence of a third person who can be available
to appear as a witness at trial. Potential witnesses may include: a. school personnel; b. neighbors; c. relatives; d. caseworkers; e. foster parents and other caretakers; f. mental health professionals; g. physicians; and h. law enforcement personnel. 4. Counsel should confer with the attorneys for the other parties,
and request permission to interview their clients with them present.
When possible, counsel should interview parents and children in their
home. Where appropriate, counsel or counsel's trained and qualified
staff should observe visitations between parent and child. 5. When necessary, counsel should conduct or participate in depositions
of witnesses. 6. Counsel should obtain information from representatives of other
agencies with whom the family has been involved, either through SOSCF
referral or on the family's own initiative, such as: a. Community Health Nurses; b. school personnel; c. homemaker services; d. family counselors; e. parenting instructors; f. drug or alcohol counselors; g. neighbors; h. ministers, priests, church members, etc.; i. baby-sitters; and j. other persons who have had significant contact with the child
or family and may have relevant information. 7. Counsel should comply with discovery statutes and use the same to
obtain names and addresses of witnesses, witness statements, results
of evaluations or other information relevant to the case. Counsel should
obtain and examine all available discovery and other relevant information,
including: a. the petition and juvenile court legal and social files; b. information that is obtained through requests for discovery; c. information from the SOSCF caseworker and from reviewing agency
records for information about: i. services provided by the agency in the past; ii. visitation arrangements; iii. the plan for reunification; and iv. current and planned services. 8. Counsel should obtain records concerning the family from other relevant
sources a. schools; b. hospitals and other medical records sources; c. law enforcement agencies; d. treatment agencies, including mental health and drug and alcohol
treatment agencies; and e. psychiatrists, psychologists, therapists and counselors. 9. Where the client's participation in psychiatric, medical or other
diagnostic or treatment program is significant in obtaining the client's
desired result, counsel should so advise client. 10. Counsel should research and review relevant statutes and case law
to identify defenses and legal arguments to support the client's case.
STANDARD 3.7 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. Implementation 1. Counsel should make appropriate pretrial motions including: a. discovery motions; b. motions for medical, psychological or psychiatric evaluation,
parent-child interaction, developmental or neurological assessment;
c. motions challenging the constitutionality of statutes and practices;
d. motions to strike, dismiss or amend the petition; e. motions for interpreters; f. evidentiary motions and motions in limine; and g. motions to consolidate. 2. Counsel should seek protective orders, make appropriate motions
in limine and other evidentiary motions. 3. Counsel should make motions to meet the client's needs pending trial,
including: a. restraining orders; b. orders for family reunification services; c. orders for medical or mental health treatment; d. orders for change of placement; e. motions to increase, decrease or limit parental or sibling visitation;
f. motions seeking child support; and g. motions seeking contempt for violations of court orders. STANDARD 3.8 Counsel should participate in settlement negotiations to seek expeditious
resolution of the case and to obtain petition and disposition terms favorable
to the client. Implementation 1. If the attorney concludes, after sufficient investigation, that
the petition will probably be sustained, the attorney should so advise
the client and request consent to discuss settlement of case. Counsel
should seek petition terms that cast the client in the most favorable
light. 2. Counsel should fully explain to the client the rights that would
be waived by a decision to admit to jurisdiction, and keep the client
fully informed of settlement negotiations. Counsel must convey to the
client any offers made for settlement and the advantages and disadvantages
of accepting the offers. Counsel may not accept any settlement without
the client's authorization. 3. Counsel should be familiar with available mediation services and
should consider whether the client's interests could best be served
and whether the case could be more appropriately resolved by mediation
or other settlement meetings. 4. Counsel should explain to the client the conditions and limits of
the settlement, and the effect of the settlement on future actions such
as criminal actions or termination of parental rights petitions. STANDARD 3.9 Counsel should be prepared before and during hearings to provide quality
representation and advocacy for the client. Implementation 1. In most circumstances, counsel should have the client present at
significant court hearings and reviews. However, in determining whether
to have a child present at a hearing or review, counsel should carefully
consider the impact of the hearing on the child. If a parent or child
over twelve years of age is waiving their appearance, counsel should
have them execute a written waiver. Counsel should prepare the client
for their role in the hearing or review. 2. A decision to exclude a young child from a hearing or review is
appropriate if the child does not want to attend, is too young to sit
through the hearing, would be significantly traumatized by such attendance,
or for other good reasons. Concerns about the child being exposed to
some of the testimony can be addressed by having the child temporarily
excluded from the courtroom. 3. Counsel should avoid unnecessarily requiring young children to testify
in dependency adjudication, review or termination of parental rights
hearings. If testimony is necessary, counsel should, where appropriate,
agree to steps to reduce the trauma to the child, such as having the
child testify in chambers. 4. In determining whether to have the child testify, the child's counsel
should consider: a. the child's need or desire to testify; b. any likely repercussions of testifying; c. whether the child is likely to be found competent to testify;
d. the necessity of the child's direct testimony; e. the availability of other evidence which may substitute for the
child's testimony; and f. the child's developmental ability to testify and withstand cross-examination.
5. If the child is capable of considered judgment, counsel is bound
by the client's decision concerning testifying. 6. Counsel should be familiar with current law and empirical knowledge
about children's competency, memory and suggestibility as they relate
to the child's competence to testify or the reliability of testimony
or out-of-court statements. 7. Counsel for the child should prepare the child to testify including:
a. familiarizing the child with the courtroom and court procedures;
b. advising the child what to expect during direct and cross-examination;
c. ensuring that testifying will cause minimum harm to the child
by: i. seeking modification in the location of the testimony; ii. limiting who will be present; iii. restricting the manner and phrasing of questions posed to
the child; and iv. objecting to questions to the child that are not phrased in
a syntactically and linguistically appropriate manner. 8. At the hearing counsel should be fully prepared by: a. having all relevant materials available at the trial, including
all pleadings, discovery and investigative reports, as well as, relevant
statutes, caselaw, and the evidence code; b. having marshaled facts and legal arguments to prove or disprove
the allegations of the petition, assuring that there is factual support
for each service element being sought. c. having a draft or outline of: i. opening and closing statements; ii. direct and cross-examination plans for all witnesses; iii. amendments to the petition to be requested to conform the
petition to the findings; and iv. findings of fact and conclusions of law to be requested at
the conclusion of the hearing. 9. Counsel should make appropriate motions, present and cross examine
witnesses, offer exhibits, and provide independent evidence as necessary.
During all hearings counsel should preserve legal issues for appeal,
as appropriate. STANDARD 3.10 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. Implementation 1. Counsel should be prepared to participate fully in the dispositional
hearing, which sets a course for the future of the case that will either
result in reunification of the family or a severance of family ties.
The attorney should counsel the client concerning the disposition prior
to the hearing, including, explaining to the client the nature of the
hearing, the issues involved, and the alternatives open to the court.
Counsel should also explain fully the nature, obligations and consequences
of any proposed dispositional plan. 2. Counsel should investigate all sources of evidence that will be
presented at the hearing and interview material witnesses. Counsel also
has an independent duty to investigate the client's circumstances, including
such factors as previous history, family relations, economic condition
and any other information relevant to disposition. 3. When the court has found evidence sufficient to support jurisdiction,
counsel should, when appropriate, ask the court not to exercise jurisdiction
and move to dismiss the petition on the ground that jurisdiction is
not in the best interests of the child because the child and family
do not require supervision, treatment or placement. 4. Counsel should advocate the least restrictive disposition possible
which can be supported and is consistent with the client's needs and
desires. Although a child's position may overlap with the position of
one or both parents, third-party caretakers, or SOSCF, the child's counsel
should be prepared to participate fully in any proceedings and not merely
defer to the other parties. Any identity of position should be based
on the merits of the position, and not be a mere endorsement of another
party's position. 5. Counsel for the child should ensure that the court recognizes the
need to speedily promote permanency for the child. 6. Counsel should, where appropriate, 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.
7. Counsel should be prepared to present a disposition plan that will
achieve the client's desired ends. Counsel should be familiar with the
dispositional alternatives available to the court and the various agencies
that serve children and families that can provide placements, treatment,
and other dispositional services and should fully discuss dispositional
options, consequences and procedures with the client. 8. Counsel should secure the assistance of psychiatric, psychological,
medical or other experts needed for purposes of evaluation, consultation
or testimony about the dispositional plan. Counsel should obtain reports
or subpoena evaluators or other expert witnesses to testify. Counsel
should prepare the client for any evaluation by explaining the nature
of the procedure and encouraging the client's cooperation. 9. Counsel should obtain the written Reports of the Juvenile Department,
SOSCF, and the CASA sufficiently in advance of the dispositional hearing
to prepare a response. Counsel should consider submitting a written
dispositional report on behalf of the client to set out the client's
plan and to counter information provided in other reports received by
the court. 10. At the hearing, counsel should, where appropriate: a. request orders that benefit the client; b. be prepared to present evidence on the reasonableness or unreasonableness
of SOSCF's efforts and alternative efforts that could have been made;
c. request that a 'no reasonable efforts' finding be made by the
Court; d. request an order specifying what future services will make the
changes in the family needed to correct the problems necessitating
intervention and constituting 'reasonable efforts' by SOSCF; e. request orders for services or service agreements that include:
i. family preservation services; ii. medical and mental health care; iii. drug and alcohol treatment; iv. parenting education; v. housing; vi. recreational or social services; vii. domestic violence counseling; viii. anger management counseling; ix. independent living services; and x. other individualized services. 11. Counsel should assure that the order includes a description of
actions to be taken by parents to correct the identified problems. Counsel
should request that the Court include in its order a timetable for accomplishing
the changes required. Counsel should, where appropriate, seek Court
approval of a written service agreement prepared by Counsel or SOSCF.
12. Counsel should also request specific visitation orders covering
visitation between child and parent, between siblings and between the
child and other significant persons. 13. Counsel should, where appropriate, request that the Court appoint
counsel, a Court Appointed Special Advocate (CASA) or an educational
advocate (Surrogate Parent) for the child. Where appropriate counsel
should seek child support orders. 14. Counsel should seek to ensure continued representation of the client
at all further hearings and reviews. Counsel should request that the
Court set the next date for the case to be reviewed. 15. Counsel should assure that the client is informed of and understands
the nature, obligations and consequences of the dispositional decision,
and the need for the client to cooperate with the dispositional orders.
Counsel should also explain the client's rights and possibilities of
post-trial motions to reconsider, set aside, modify or review the disposition,
as well as the right to appeal. Counsel should explain the consequences
of violating the dispositional order and the continuing jurisdiction
of the court. STANDARD 3.11 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. 1. Counsel should counsel the client and file any post-disposition
motion or appeal that is needed. 2. Counsel should review the court's order to insure that it conforms
with the findings and disposition. 3. Counsel should file, litigate or respond to any motions to reconsider,
set aside, or modify the jurisdictional finding or disposition, as well
as any appeals of referees' orders. Counsel should, as directed by the
client, also file notice of appeal and either provide representation
on appeal or assist the client in referral to other appellate counsel.
Counsel should participate in an appeal filed by another party or assist
the client in referral to other appellate counsel. 4. Counsel should monitor implementation of the caseplan and progress
in the case, requesting additional services, seeking review or other
relief, such as contempt, as appropriate. Counsel should be familiar
with the procedures available to the client after disposition. 5. Counsel should monitor the case plan for implementation and maintain
contact with both the client and the agency or institution involved
in the disposition plan in order to ensure that the client's rights
are respected and where necessary, to counsel the client concerning
the dispositional plan. 6. Counsel should confer periodically with their client and the caseworker
to review the service plan and service agreement, the extent of compliance
with the plan by both the agency and the client, and the continued appropriateness
of the plan. Where needed, counsel should request additional services
for the client or family. 7. In monitoring the provision of dispositional services, counsel should
request a review or permanent planning hearing if necessary to protect
the client's interests. Counsel should investigate and prepare for review
or permanent planning hearings as for adjudicatory hearings to the extent
that is necessary. See Standards 3.6 and 3.9, supra. 8. Counsel for the child should file a petition for termination of
parental rights when necessary or advocate for the district attorney
or attorney general to do so. 9. When the representation ends, counsel should explain why the representation
is ending and how the client can obtain assistance in the future should
it become necessary. STANDARD 3.12 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. Implementation 1. State and federal law requires that review hearings or CRB reviews
occur at regular intervals. Clients are also entitled to request reviews,
to assist them in moving the case along or addressing problems with
the caseworker or caseplan. Counsel should seek a review to request
return of the child when any event happens that may significantly affect
the need for continued placement. Counsel should also request a review
when court intervention is necessary to resolve a dispute over such
matters as visitation, placement or services. 2. Whether a review is periodic or at the request of one of the parties,
counsel should conduct appropriate investigation to prepare for the
review, which may include: a. reviewing the SOSCF file and the report prepared for the review
and obtaining all relevant discovery; b. interviewing the caseworker to determine his or her assessment
of the case, the caseplan, the child's placement and progress, and
the parent's cooperation and progress; c. contacting other agencies and professionals who are providing
services to the child or parents; d. interviewing other potential witness, which may include relatives,
neighbors, school personnel and foster parents; e. seeking evaluation of the client or other parties; and f. subpoenaing needed witnesses. 3. At all review hearings and CRB reviews counsel should be prepared
to present information on what the long-term plan for the child should
be and whether SOSCF and the parents are taking the necessary steps
to achieve the chosen plan in a timely fashion. Counsel should consider
submitting a written report on behalf of the client. Counsel should
specifically address: a. whether there is a need for continued placement of the child;
b. reasons the child can or cannot presently be protected from the
identified problems in the home even if services are provided; c. whether SOSCF is making reasonable efforts to rehabilitate the
family and eliminate the need for placement of the child; d. why services have not been successful to date; e. whether the court-approved plan for the child remains the best
plan; f. whether the caseplan or service agreement need to be clarified
or modified; g. the appropriateness of the child's placement; and h. whether visitation or other orders should be made or modified.
4. At all review hearings, CRB reviews and permanent planning hearings,
counsel should request specific findings and orders that advance the
client's case. Where appropriate, counsel should ensure that parents
receive a clear and authoritative statement of what is expected of them,
the time they have, the possibility of return of the child if sufficient
progress is made, and the risk of termination if not. Counsel should
ask the Court to set the time frame for the next hearing, if needed.
5. Permanent planning hearings require the same preparation as other
reviews, but counsel should, in addition, be prepared to address what
the long-term plan for the child should be, including: a. a specific date on which the child is to be returned home, or
b. a date on which the child will be placed in an alternative permanent
placement; c. whether the child will remain in foster care on a permanent or
long-term basis, and d. whether foster care will be extended for a specific time, with
a continued goal of family reunification. 6. Counsel for the child should consider whether to file a termination
petition on behalf of the child, or to join the state in prosecuting
such a petition or the parent in defending such a petition. Because
termination of parental rights is a drastic and permanent deprivation
of the fundamental right of family membership, and only the death penalty
is a more severe intrusion into personal liberty, counsel should be
zealous and meticulous in investigating and preparing for termination
of parental rights hearings. Counsel should prepare for and try termination
of parental rights hearings as for adjudicatory hearings. See Standards
3.6, 3.7, 3.8, 3.9 and 3.11 supra. In addition, counsel should: a. thoroughly review the record of the case, carefully analyzing
court orders and CRB findings and recommendations; b. completely investigate the case especially issues unique to termination,
such as the adoptability of the child and the child's ability to bond
to new caretakers; c. prepare a detailed chronology of the case to use in case presentation
and in developing a theory and strategy for the case; d. research termination statutes and case law with particular attention
to constitutional issues and prepare trial memoranda if necessary;
e. obtain and review records to be submitted to the court and prepare
objections or responses to objections to these documents; f. subpoena and carefully prepare witnesses; g. be aware of the heightened standard of proof in termination cases
-clear and convincing evidence for most cases and beyond a reasonable
doubt in cases covered by the Indian Child Welfare Act; h. be prepared to present evidence of or address SOSCF's failure
to adequately assist parents.
Prerequisites For Representation
General Duties And Responsibilities Of Counsel To Client; Avoiding Conflict
Of Interests
Role Of Counsel
Obligations Of Counsel Regarding Pre-trial Placement
Initial Client Interview And Client Contact
Independent Investigation
such as:
Pretrial Motions
Negotiating A Settlement
Hearings
Disposition
Post-disposition
Review Permanent Planning And Termination Of Parental Rights Hearings
