New England November 2012 Children in the Courtroom Sounds Good, BUT..... Margaret A. Burt, Esq.

All I ever wanted was to be heard and not just dismissed… Youth in foster care

Child and Family Service Improvement Act of 2006 Procedural safeguards to be applied to assure that in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court or administrative body conducting the hearing consults, in an age appropriate manner, with the child regarding the proposed permanency or transition plan for the child

Does “consult” mean child has to be present in court? Feds say no – “We do not interpret the term “consult” to require a court representative to pose a literal question to a child or require the physical presence of the child at a permanency hearing. However, the child’s views…must be obtained by the court for consideration during the hearing.” Feds say no – “We do not interpret the term “consult” to require a court representative to pose a literal question to a child or require the physical presence of the child at a permanency hearing. However, the child’s views…must be obtained by the court for consideration during the hearing.”

Benefits when youth participate… Child or Youth may have more sense of control Child or Youth may have more sense of control Child or Youth may have a better understanding of the process Child or Youth may have a better understanding of the process Shows Child or Youth that their opinion is wanted and respected Shows Child or Youth that their opinion is wanted and respected There may be more information for the court There may be more information for the court

OK – this is old stuff to me We already know about this and we do try to bring children and youth to come to their permanency hearings now We already know about this and we do try to bring children and youth to come to their permanency hearings now Is bringing children and youth to court actually the normal expected practice in your court? Is the child or youth really participating in a meaningful way or are things getting in the way of that? Is bringing children and youth to court actually the normal expected practice in your court? Is the child or youth really participating in a meaningful way or are things getting in the way of that?

Is there a meaningful appearance by the child or youth? What is really happening?

HANDS UP Do children and youth come to their permanency hearings in your experience? Do children and youth come to their permanency hearings in your experience? How frequently? How frequently? Does it matter what age the child is? Does it matter what age the child is? Are they given an opportunity to speak if they are there? Are they given an opportunity to speak if they are there? How is this done? How is this done? Do they actually talk? Do they actually talk about their own permanency issues and goals? Do they actually talk? Do they actually talk about their own permanency issues and goals?

What does it look like now in Your State? Who actually decides if child comes? Who actually decides if child comes? Who preps child? Who preps child? How does child “talk” to Judge? How does child “talk” to Judge? Can child talk privately to the Judge? Can child talk privately to the Judge? Who talks to child after the appearance? Who talks to child after the appearance?

Roles How are things explained to the child about best interests vs the child’s wishes? How are things explained to the child about best interests vs the child’s wishes? Who explains this to the child? Who explains this to the child? How will child’s opinion be advanced, if others have different BI position? How will child’s opinion be advanced, if others have different BI position? Should court and agency also be concerned ethically or due to IV-E issues if child’s wishes are presented? Should court and agency also be concerned ethically or due to IV-E issues if child’s wishes are presented?

Child Representative’s role when a youth comes to court Inform the court of any issues Inform the court of any issues Prepare client Prepare client Ensure youth is aware of what’s happening Ensure youth is aware of what’s happening Allow/Help the youth to speak Allow/Help the youth to speak Discuss the hearing afterwards Discuss the hearing afterwards OR – in a particular case, should any of this be done by caseworker, CASA or foster parent? OR – in a particular case, should any of this be done by caseworker, CASA or foster parent?

Policy and Practice Considerations What are youth’s wishes? How much before hearing is this ascertained? How often are we checking to see if it has changed? What are youth’s wishes? How much before hearing is this ascertained? How often are we checking to see if it has changed? How old is the youth? How old is the youth? What is the developmental level of the youth? What is the developmental level of the youth? Will attending court upset the youth? Will attending court upset the youth?

Policy and Practice Considerations Will attending court disrupt the youth’s routine? Will attending court disrupt the youth’s routine? Will court be confusing or boring to the youth? Will court be confusing or boring to the youth? Who will transport the youth? Who will transport the youth? Will the court need additional time for the hearings? Will the court need additional time for the hearings?

Assess client preferences- before court Does child have any preferences that should be brought to the court’s attention? Does child have any preferences that should be brought to the court’s attention? Elicit child’s preferences in developmentally appropriate manner, recheck right before Elicit child’s preferences in developmentally appropriate manner, recheck right before Make a good faith effort to determine child’s wishes Make a good faith effort to determine child’s wishes Child can but won’t express preference? – determine if child wants their representative to: Child can but won’t express preference? – determine if child wants their representative to: Be decision maker Be decision maker Be silent Be silent Express preference only if parent isn’t present Express preference only if parent isn’t present

Evidence Issues Is what child tells Judge “secret” or does that violate the parent’s rights? Are parents attorneys entitled to “cross” the child? Is what child tells Judge “secret” or does that violate the parent’s rights? Are parents attorneys entitled to “cross” the child? Is Judge in total control of deciding if child will come to court and how child will present ? – preserve for appeal? Is Judge in total control of deciding if child will come to court and how child will present ? – preserve for appeal? What is weight of child’s position? What is weight of child’s position? What could be done about backlash to the child? What could be done about backlash to the child?

Different Jurisdictions : Have the youth present in the court room only for certain issues like visitation or placement but exclude for discussions of difficult parental issues Have the youth present in the court room only for certain issues like visitation or placement but exclude for discussions of difficult parental issues Have the youth talk in chambers - with or without the lawyers Have the youth talk in chambers - with or without the lawyers Present the child’s hearsay statements in court via written or oral statements from the child’s representative – with or without the child present Present the child’s hearsay statements in court via written or oral statements from the child’s representative – with or without the child present

Different Jurisdictions: Have “Enhanced Hearings” for older youth and/or special hearings for youth close to aging out Have “Enhanced Hearings” for older youth and/or special hearings for youth close to aging out Arrange advance visit to the courthouse Arrange advance visit to the courthouse Have the youth wait in a special waiting area for the hearing – food, activities (obtain community volunteer help) Have the youth wait in a special waiting area for the hearing – food, activities (obtain community volunteer help) Have a “birthday” acknowledgement at court – card, photo, cake (also community volunteer help) Have a “birthday” acknowledgement at court – card, photo, cake (also community volunteer help)

Different Jurisdictions: Allow the child to appear via teleconference Allow the child to appear via teleconference Had “teen” day at court Had “teen” day at court Made sure all sibs were at the same time - -- or not, if that was seen as an issue Made sure all sibs were at the same time - -- or not, if that was seen as an issue Talked to child/youth individually without sibs present and then with sibs Talked to child/youth individually without sibs present and then with sibs Did mock hearing training Did mock hearing training

Different Jurisdictions Put together books at age appropriate levels Put together books at age appropriate levels Put together videos – for children and for attorneys and Judges Put together videos – for children and for attorneys and Judges Created an older foster care youth or a prior foster care youth advocate that would accompany child/youth Created an older foster care youth or a prior foster care youth advocate that would accompany child/youth

Common Issues Child who says he/she does not want to come to court at all: Child who says he/she does not want to come to court at all: Does not want to come or does not have an opinion to express? Why and who is talking to child about it? Come with a friend Contact/Invite from the Judge Letters/ checklist input as an option

Common Issues: There are things that the child should not hear/know There are things that the child should not hear/know Really? How do we know that the child does not already know? Have child step out of court at this point? How would this look or be handled?

Common Issues: Hearing is at a bad time, or will take too long: Hearing is at a bad time, or will take too long: Can the court be advised in advance that more time will be needed? Can hearings be held outside of school hours? REALLY???

Common Issues: At court child becomes (or we think might become) very emotional or won’t say anything at all: At court child becomes (or we think might become) very emotional or won’t say anything at all: Someone there that the child wants/trusts Still able to communicate? Use other ways to communicate – write something out, let GAL say what child would like said Is it really our discomfort?

Common Issues Child is not supposed to have contact with the parent Child is not supposed to have contact with the parent What is reason for the no contact? Bifurcate the hearing?

Your ideas? What has worked for you? What has worked for you? What are you biggest challenges? What are you biggest challenges? What training or other things would you recommend and for who? What training or other things would you recommend and for who?

Youth should feel that … I have the right to: I have the right to: Attend all hearings where case is reviewed Attend all hearings where case is reviewed Meet with my representative before hearings Meet with my representative before hearings Tell my representative where I want to live and what services I think I need to meet your goals Tell my representative where I want to live and what services I think I need to meet your goals Have my representative do what is needed to help I get an appropriate placement and make sure my needs are met Have my representative do what is needed to help I get an appropriate placement and make sure my needs are met Have my representative call witnesses to testify for me or present evidence to the court to support my position Have my representative call witnesses to testify for me or present evidence to the court to support my position

Have my representative cross examine witnesses Have my representative cross examine witnesses Have the judge know what I think about my placement and any needs that I have, including visitation – not to have visitation used as a punishment or reward Have the judge know what I think about my placement and any needs that I have, including visitation – not to have visitation used as a punishment or reward Have a judge determine if my needs are being met, if I am in an appropriate placement, and if I am receiving all the services I need to meet my goals Have a judge determine if my needs are being met, if I am in an appropriate placement, and if I am receiving all the services I need to meet my goals Have information shared in court be kept confidential and discussed only with people who need to know about it to provide me with care and service Have information shared in court be kept confidential and discussed only with people who need to know about it to provide me with care and service

Child and Youth at Court? This is just too important to go through the motions or check the box This is just too important to go through the motions or check the box You cannot know how vital this may be to the child You cannot know how vital this may be to the child It is CRITICAL for the child or youth to see themselves as a person whose presence and opinion are valued by everyone in our system It is CRITICAL for the child or youth to see themselves as a person whose presence and opinion are valued by everyone in our system