CHILD AND FAMILY LAW CLINIC DEPENDENCY HANDBOOK

CHILD AND FAMILY LAW

CLINIC

DEPENDENCY HANDBOOK

CHILD AND FAMILY LAW CLINIC

UNIVERSITY OF ARIZONA

JAMES E. ROGERS COLLEGE OF LAW

1145 North Mountain Ave

Tucson, AZ 85719

(520) 626 - 5232

Revised January, 2015

TABLE OF CONTENTS

PART I

PAGE

INTRODUCTION TO THE CLINIC

ABOUT THE HANDBOOK

GETTING STARTED

RULE 38 (D) AND THE ROLE OF THE SUPERVISING ATTORNEY

TEN RANDOM THOUGHTS ON GOOD LAWYERING

A LITTLE BIT ABOUT CHILD PROTECTION

DEPENDENCY PROCEEDINGS

THE PLAYERS

THE ROLE OF THE CHILD’S LAWYER

THE ROLE OF FEDERAL LAW

HOW A DEPENDENCY PROCEEDING GETS STARTED

DCS CRITERIA FOR RESPONDING TO A REPORT OF

MALTREATMENT

THE PPH PROCESS

THE COURSE OF A DEPENDENCY

CLINIC PROCEDURES FOR A NEW PPH

PPH FOR PRIVATE DEPENDENCIES

INDIAN CHILD WELFARE ACT

THE SETTLEMENT CONFERENCE

MEDIATION

101

104

111

120

DEPENDENCY ADJUDICATIONS

TOP TEN THINGS YOU OUGHT TO KNOW ABOUT EVIDENCE IN

JUVENILE COURT

DISPOSITION HEARINGS

DEPENDENCY REVIEWS

PERMANENCY HEARING

PERMANENT GUARDIANSHIPS

SEVERANCE PROCEEDINGS

ADOPTIONS

122

137

139

148

154

158

167

INTRODUCTION TO THE CLINIC

Welcome to the Child and Family Law Clinic. You are about to engage in a

unique and special learning experience -- one that will not only help you develop your

skills as a lawyer but will also challenge you to engage in a journey of self-discovery.

What is the Child and Family Law Clinic?

The Child and Family Law Clinic is a working law office in which law students are

the lawyers. The Arizona Supreme Court allows law students who have completed

three semesters of law school to represent persons in court under appropriate

supervision.

In the Clinic, students perform all aspects of that representation for our

clients.

We also believe that law practice is inherently multi-disciplinary. No legal

proceeding or contract negotiation or policy initiative is conducted in a law bubble.

There are always substance or evidence or policy considerations that are outside the

law. Lawyers regularly work with other professionals – accounting, medicine,

engineering, chemistry, psychology . . . It’s a pretty long list. Whether these other

professionals are clients, collaborators, advisors or expert witnesses, you will need to

develop your skills in working with other professionals in order to be a quality lawyer.

As our name suggests, our clients are mostly children who are involved in child

abuse and neglect (dependency) cases in the Pima County Juvenile Court.

Occasionally, we are asked by the Juvenile Court to represent parents as well -- usually

teen parents. And, once in a while, we asked by the Superior Court to represent

children in private custody disputes when there is an allegation of abuse or neglect. .

This semester, we may also interview and provide advice to adult victims of

intimate partner violence. This Handbook is about Dependencies. If we represent

victims of domestic violence, we will provide you all with other materials.

The Child and Family Law Clinic is assigned clients directly from the Courts. The

Clinic has a contract with Pima County to provide legal services to children and to a few

adults. In rare situations we might take a client on referral from another agency, but

only where there is a unique learning opportunity.

What is the Student’s Role in the Clinic?

The Child and Family Law Clinic is a live-client experience. By that, we mean

that you will be working with real people who have real legal problems. The clients will

be your clients and the cases will be your responsibility. We want you to make the key

lawyer decisions, choices, strategies and implementations in your case. We don’t

Rule 38, Arizona Rules of the Supreme Court. There are a number of other

conditions that apply including internal law school requirements.

want you to be the assistant to a more experienced lawyer; we want you to be the

lawyer.

Representing clients for the first time can be heady stuff. For some, it may be

exhilarating. For others, it may be frightening or unsettling. For some, it may be both

at the same time. We offer no predictions for you. We do, however, know that one of

the best ways to learn professionalism and good lawyer judgment is to practice them in

a setting that is designed for and focused on your learning.

That does not mean that you will be swimming alone. Quite the contrary, the

Clinic faculty and staff will be there with you to help prepare you, guide you, and offer

constructive feedback. We are a collaborative law office where all of us work together

for the benefit of our clients and for the professional development of our students and

ourselves. The bottom line, however, is that the final lawyer decisions are yours.

What makes the Clinic different from other courses?

First and foremost, your work is not theoretical or doctrinal. It is practical and

experiential. That does not mean that doctrine and theory are unimportant. In fact, the

opposite is true. We expect you to draw on all of your previous work in law school and

apply it in action on behalf of your clients.

One of the more exciting aspects of the Clinic is that it introduces you directly to

the lawyer-client relationship. You will represent clients and they will rely on you to

represent them well. Experiencing this reliance is the best way to appreciate the

implications of the role of a lawyer, the foundations of professional responsibility, and

the core values of the profession. You will need to draw on your previous law school

experience, your life experience, and your common sense to perform tasks well.

When someone is relying on you, you may face difficult strategic choices.

Sometimes you may face ethical or moral dilemmas. Your faculty supervisor and your

other clinical colleagues will help you make those choices for yourself.

Thus, a second obvious difference between the Clinic and most of your previous

courses is the relationship you will have with the faculty member who supervises you.

Even if you have worked closely with an attorney in an outside job, you will find that

there is a difference when the attorney with whom you are working makes what and

how you learn a high priority.

A Clinic course puts you in regular, sometimes daily, contact with a faculty

member. Much of the contact is spontaneous and informal. You may feel some

awkwardness about this relationship. We expect that. Nevertheless, be assertive and

take advantage of the Clinic faculty's presence. Clinic faculty are expected to be

accessible to you, but it is up to you to initiate the informal contact.

Third, in the Clinic, we work collaboratively. Because we represent real people,

we have to put their needs ahead of our egos. But isn’t that the task of a lawyer in any

event? No ego means there is no embarrassment. There are no dumb questions -- only

the questions we did not ask. We encourage a frank and honest exchange of views.

Only then can our clients be guaranteed the best legal services that we can offer.

With those considerations in mind, the Child and Family Law Clinic has four main

goals:

(1) Enhancing Lawyer Skills. Through practical experience in

the field and in classroom simulations, we want you to develop your skills

and learn a little about the law. You will have a chance to interview

clients and witnesses; to investigate facts; to research the law; to write

motions and court reports; to negotiate; and to stand up and advocate in a

real courtroom.

(2) Learning how to learn from experience. In addition to cultivating

lawyer skills, we want you to begin to master the lifelong skill of learning from

experience -- not only about the law, but also about yourselves. We hope that

we can help you help yourselves to become reflective lawyers – that is lawyers

who are not only highly skilled professionals, but who also care and think

about the quality of the justice, ethics, and morality of the profession.

(3) Developing good lawyer judgment. In the process of (1) and (2)

and drawing on lessons from all your other classes, we hope that your sense

of lawyer judgment will develop and mature. By “lawyer judgment” we mean

making the kinds of decisions -- both practical and ethical --that lawyers are

called upon to make regardless of their area of practice. We want to you make

decisions with a purpose and be true to the values of the profession and to

your own moral compass.

(4) Delivering high quality, purposeful, legal services. Finally, we

expect the Child and Family Law Clinic to provide the highest quality legal

services to our clients. Our clients deserve nothing less.

How do these goals affect you?

One result of all this is that you have an opportunity to shape the agenda for your

learning. A clinic is a more individualized learning experience than most other courses. As

with most things, you will get out of this experience what you put into it. You play the

primary role in establishing your working relationships within the Clinic. You have significant

control over the content of the learning within the context of the issues and tasks presented

by your cases. If you take the initiative, you can make this a great experience.

You have heard that in law school, you learn how to “think like a lawyer”. That is

certainly one of the goals of this clinic. But a clinic experience is about more than thinking.

We want you to explore how to act as a lawyer, how to make decisions as a lawyer, and

how to relate to clients as a lawyer.

In the Clinic, you will discover that there are aspects to thinking like a lawyer that are

not easily taught in other courses or contexts. When the decisions you make affect people’s

lives, they are different from the decisions you make in a classroom discussion or while

writing a paper. The decisions lawyers make come with real world responsibility. Making a

three foot putt in a tournament or playing an etude at a recital is a different experience than

doing the exact same thing in practice. We hope you can embrace the notion that your

decisions will matter.

Scary? Maybe a little. But we have all the confidence in the world that you are

ready.

Becoming accomplished in your new lawyer role will require you do things you may

never have done before, or, at least, require you to do them in a new context. For example,

you may have negotiated over many things in the past, but now you may have to negotiate

as an agent for your client, adding your special expertise as a lawyer. You may have

explored legal analysis of a problem with many hypothetical variations in which the facts

change each time. But here, you may have to discover and prove those facts. They may

not be so visible and accessible.

Newness is ok. We want you to stretch yourself, to take on new experiences, to take

a few risks. We want you to test yourself. And we also want you to recognize that it is just

as important that you learn to put these individual experiences in a broad context that will

make them useful and interesting over a long career. This will help you better appreciate

the lessons of your other law school courses.

Good luck. Work hard. Challenge yourself. Learn a lot. Oh, remember this as well,

have some fun while doing it.

ABOUT THE HANDBOOK

This handbook is an informal and somewhat unrefined reference work designed

to be a starting point for some of the problems that you will encounter. The handbook

contains chapters, training materials, and other materials gleaned (or stolen outright)

from various child- advocacy and child-welfare sources.

While the handbook contains a wealth of materials, it is not designed to be an

answer manual for all of your questions. Nor is the handbook the last word on any

subject. The handbook will NEVER be a substitute for proper research. The handbook

should be used as a starting point only. Nonetheless, we hope the handbook will be a

useful tool in helping to get you started.

The Clinic handbook contains four types of materials. The first type sets out the

basics of dependencies, severance, and guardianships. Included are statutory and

case references. Again, these articles are not ultimate truth, but should provide an

overview. Always check out the current statute or rule. Laws change.

Sometimes overnight – and without much fanfare.

The second type of material provides a how-to commentary or practical

background information about a particular aspect of a juvenile case.

The third type of material is an Appendix, which includes examples of minute

entries, common pleadings, letters, and other documents with which you may come in

contact. In the law library of nearly every law office, you will find some compilation of

these documents in the “form drawer” or the “form file”.

Here are our thoughts about “forms”. Forms are provided for examples

only. Forms are not a substitute for thinking. Remember, “form” is a four letter

word beginning with “F” and we should always be careful of such words. Our

examples are for guidance not for gospel. Never rely on someone else’s form or

someone else’s words for content. Every letter or pleading you prepare should be the

result of YOUR well planned thoughts for your particular task. One size rarely fits all.

Finally, we have included references to relevant statutes and rules throughout

the Handbook. They are hyperlinked. Nevertheless, remember, statutes get revised

more quickly than the handbook. Check the pocket parts or on-line to make sure

that your version is the current version.

One final, final note: the handbook is always a work in progress. If you have any

suggestions, additions, corrections, or proposed deletions, please feel free to talk to the

Clinic Director. If you work on an interesting case and would like to add a form [oops,

there we said it], pleading, or your own insight, please do not hesitate to come forward.

Getting Started

At first, the child protection system will seem to be a very confusing and

cumbersome collection of courts, governmental agencies, and private entities -- both

non-profit and for profit. There are a host of different players in the system with different

titles and different roles. There is no shortage of agencies with a plethora of acronyms.

It will sometimes appear as if people in the system are speaking a foreign language -

- at least as foreign as the language of lawyers must seem to the justice-consuming

public.

Part of your job will be to learn the language of child protection just as you are

learning the language of the law. You need to understand child-protection talk so that

you can properly represent your clients with these agencies and in court. You also

need to be able to translate for your clients so that they can make intelligent decisions in

their own best interests. We hope this handbook will provide a healthy starting point.

The good news is that we have every confidence that you will master the terrain

and the language of child protection. In many ways, the child protection community is

peopled by a remarkable collection of individuals extremely dedicated to helping

children. There is a lot to be learned from most of the people in the child-protective

system. And most of them are more than happy to assist you in any way they can.

So, our first piece of advice is simple: Go slowly. Take your time and, above all,

ASK QUESTIONS. If you don’t understand something, ask about it. If you hear a new

phrase or acronym, ask what it means. One of the first steps in learning how to

learn from experience is learning how to ask questions.

You will be encountering some experiences that are new to you -- whether they

are speaking in court, writing a motion or interviewing a child. It may seem like you are

leaping off a cliff with no knowledge of how to fly. And while we want you to stretch

yourselves, remember that you are not alone. Don’t try to be the Lone Ranger. We are

a team -- a team that includes your supervising attorney, your clinic partner, your social

work intern, and the rest of the members of the Clinic.

Our second bit of advice is just as simple as the first. Talk to each other. Don’t

be afraid to ask for help. Share your problems and experiences with the other

members of the Clinic team. Brainstorm with other Clinic students. Knock on your

supervisor’s door. Use what others have learned to help you to solve problems. Use

the team.

Third, despite all the lawyer jokes, we know full well that lawyers have feelings,

too. In the course of representing your clients, you will undoubtedly be exposed to some

of the darker sides of life -- drug-abusing parents who don’t seem to care about their

children; angry or frightened children who don’t seem to be able to negotiate the world

A list of common acronyms is included in the Appendix

into which they have been thrust; agency personnel who don’t seem to have the time,

energy, or resources to do their jobs properly.

It is not easy to watch other people’s difficulties -- particularly those of children. It

will be especially frustrating to realize that, as a child’s lawyer, you cannot fix

everything. It may be even more difficult if your client’s situation evokes something

personal in you. It is perfectly normal to experience anger, frustration, or sadness at

what you observe.

While we cannot tell you how to feel, we can tell you that it is important to

recognize your feelings and to deal with the fact that they exist. Share them with others

if you feel comfortable doing so; if you don’t, keep a journal or diary. Whatever you do,

try to be reflective about how the experience of representing children affects you.

Learning to reflect is one great and important step in learning how to learn

from experience. It is central to what we are trying to accomplish in the Clinic.

RULE 38 (D) AND THE ROLE OF THE SUPERVISING

ATTORNEY

As law students, you are allowed to practice law under Arizona Supreme Court

rule 38(d). Under the rule, you are called a “certified limited practice student”

. [We

didn’t make that up]. Get used to the phrase “certified limited practice student” --

you’ll be using it a lot and it is a mouthful. Go ahead. Try it out loud. In front of a mirror:

“My name is _____. I am appearing as a certified limited practice student

on behalf of _____.”

As a certified limited practice student, you will be given primary responsibility for

your cases. You meet with your client. You gather information. You marshal evidence.

You appear in court. You make the arguments. You do the negotiations. You make

the decisions. These are your cases.

BUT, you are not alone. Your supervising attorney is there to help. Your

supervising attorney will help you plan, will be with you in court, will review your legal

writing, and will offer you feedback. It is the supervisor’s role not only to assist you to

perform your job well but to help you learn from your experiences in the Clinic.

You will also be practicing in an area of law that requires you to interact with

human services agencies of all shapes and colors. Take advantage of the offers of

help. Hopefully, you, your clinic partner, and your faculty supervisor will develop

healthy, professional relationships. Don’t be shy.

Rule 38, AZ Rules of the Supreme Court.

A small note of self interest. It is also your supervising attorney’s law license

that is on the line whenever you act as a certified limited practice student. Your

supervising attorney has more than a passing interest in making sure that you are the

best lawyer you can be for your client. Make sure that you keep your faculty supervisor

well informed about what is happening in your cases so that the supervisor’s ulcers will

be kept in check. So:

1. Make sure that you meet regularly with you Faculty Supervisor.

2. Check your mail box and email frequently for messages.

3. Be in the Clinic during your office hours.

4. Meet with your supervisor before and after all significant case events.

5. Before you send something in writing (including email) out the door,

show it to your faculty supervisor.

6. Keep your files up to date.

7. ASK QUESTIONS!!

TEN RANDOM THOUGHTS ON GOOD LAWYERING

Before getting into the basics of dependency law, we thought we would share a

couple of thoughts about being a lawyer in the Juvenile Court. We often say that being

a lawyer in Juvenile Court is like being a lawyer in any other trial court -- except more

so. Accordingly, the following thoughts apply to all courts, but apply especially in the

Juvenile Court. These thoughts are in no special order but can be useful aphorisms to

get you going in the Clinic and are somewhat reflective of our general philosophy.

1. Learn to Listen

Listening, really listening, is one of the most useful and important skills that a

lawyer can develop. Listening means not just hearing the words but getting the actual

and hidden meanings behind what someone else is saying. Listening takes

concentration and can be hard work. But it is work that will be well rewarded.

Listening means getting to know the person with whom you are talking. This is

especially true with child clients. Get to know them in the context of their own lives.

Then you can really hear what they say.

Listening will help you understand what your clients really want. Listening will

help you see where a Judge may be leaning. Listening will help you interview

effectively. Listening will help you see if there is common ground for compromise.

Listening is a skill -- like playing piano, swimming, or painting portraits. Like all skills,

listening needs to be practiced and cultivated. Work at your listening skills. They will be

well worth it.

2. Courtroom style is way overrated; clarity is not.

In Court, all other things being equal, the better prepared lawyer will get better

results. The flashy lawyer, without quality preparation, doesn’t get much of anything.

If you think about it for just a moment, it is easy to see that the Judge in

Juvenile Court is far more concerned with making the correct decision about a child

than in evaluating the performance of the lawyers -- you included. Whether or not a

lawyer looks nervous or stutters or is not smooth takes a far distant second place to

clear communication and making the right decision for a child.

So what helps Judges make the correct decision? Presenting all the relevant

facts; answering all their questions; having presenting argument in a clear, lucid, and

digestible fashion. It does not take Clarence Darrow to present a case in Juvenile

Court. It does, however, take hard work and quality preparation.

That is why the Clinic has been successful for our clients. We work hard. We

gather all the relevant information. We are on top of things. Our preparation helps us

assist the Judge in seeing our client’s point of view. Style points do not count;

preparation does.

3. Judges are busy; make their jobs easier

Be concise. Keep it simple. Get to the point quickly. While style points don’t

count, it is still important to be a good communicator. We don’t need to look flashy, but

it is essential that we get our point across within the limited time allotted.

How do you do that? Prepare, prepare, prepare. Think about what you want to

convey to the Court in advance -- and work on it. Don’t assume that the Judge knows

everything you know but make sure that you don’t waste time on matters about which

the Judge is fully informed. Put yourself in the Judge’s shoes and ask yourself the

following: “What would help me make a better decision?” Then, provide that.

4. Planning is everything; reflection is learning

Everything we do -- whether it is interviewing our clients, telephoning a case

manager, talking to a doctor, or advocating in court -- will go much more productively if

we plan before and reflect after. Be a purposeful lawyer. Try these four simple steps:

Step (1) Before undertaking any task, ask and answer the following

question: “What am I trying to accomplish?” Then, define your actions

and goals according to the answer.

Step (2) Review your plans and ask yourself: “Will this help accomplish

my goal?” If you are still on track, go for it. If not, revise your plans.

Step (3) Once you’ve completed your task, ask yourself the following:

“Did I accomplish what I set out to do? Why or why not?” File that

answer under “Something useful that I learned today”. Don’t forget this

step. This is where real learning takes place.

Step (4) After completing the first three steps, ask yourself the “big picture”

question: “What did I learn today that will help me as a person and as

a lawyer?” This step is where real insight takes place.

5. Do not underestimate the power of the written word

Getting information to a Judge in a form designed to communicate your position

is one of the main tools of good lawyering. Advance written reports and motions can be

extremely effective communication media. In Court, Judges have only a few moments

to make decisions; there is little time for a Judge to ponder the finer points of the law.

Judges are fully aware that rushed decisions are never the best decisions. By

offering quality written work in advance of the hearing, we give the Judge time to

decide. The more time a Judge has to think through the correct decision, the more

likely it is that the Judge will make that decision correctly. Likewise, the more time the

Judge has to think about our arguments, the more likely the Judge will be to understand

and accept them.

As a corollary, never underestimate the power of advance notice: Be heard first.

A well written report, motion, or brief helps to focus the argument where you want it

focused. Judges may not always accept what you want them to accept, but if you can

get them thinking about it early, you have a better chance of being successful.

6. You cannot speak too slowly in Court

Speaking too quickly is like bad handwriting. It is an unnecessary obstacle. If

your Judge cannot follow your argument, you will not have much impact. If you speak

too quickly, it is a guarantee that your argument will not be followed.

In court, your adrenalin pumps. Your heart beats 1,000 times per minute. You

lose your sense of time. Time seems move more quickly than it actually does. So take

the time to take time. Slow down. Take a deep breath. Pause. No matter how slowly

you think you are talking, talk even more slowly. Speak up. Slow down. Then you can

be understood.

7. Write it down

Whenever you do anything on a case, write it down NOW. Make an immediate

record and put it in the file. None of us can remember everything accurately. However,

we are more likely to remember it if we make a contemporaneous record. As Stephen

Wright says, “Everyone has a photographic memory, some just don't have film.”

8. Return all phone calls promptly

Nothing irritates people more than not getting return phone calls. And little

pleases more than a promptly returned phone call. The consequence of each choice is

obvious.

9. Silence is golden

Keep your client’s secrets. Confidentiality goes to the heart of the lawyer-client

relationship. That relationship is about trust. It is exciting to talk about your cases. But

there is a client at the heart of every conversation who deserves his or her privacy.

10. Keep your client informed

We will often have a lot more information about our cases than our clients will

have. If your clients are old enough or mature enough to understand what is going on,

keep them as well informed as possible. It is, after all, their lives. They have a right to

know what is happening around them. They also have the right to the information they

need to make intelligent choices about their lives.

How many lawyers does it take to change a light bulb? None. Lawyers like to

keep their clients in the dark.

10 1/2. Life is Short. Have Some Fun

A LITTLE BIT ABOUT CHILD PROTECTION

The legal protection of children is a relatively recent phenomenon. Historically,

children were considered chattel. The State did not interfere with the manner in which

parents raised their children in the same way that the State did not care how parents treated

their furniture. The State’s only involvement was in caring for orphans who had no relatives

to care for them.

As late 1970, many states had no laws whatsoever dealing with child abuse. In cases

of severe abuse, such as broken bone beatings or whippings, the states had to protect

children under animal cruelty laws. Even into the early 1970's, most states’ responses to

child abuse were limited to criminal prosecutions of only the most serious cases.

In the early 1970's, two parallel trends began to emerge. Congress began to provide

money to the states to investigate child abuse and neglect. In addition, Congress allocated

money to help states remove abused and neglected children from their homes, care for

those children in foster care, and provide remedial services to help reunify families.

Around the same time, many states passed laws creating a civil child protection

system. Laws were enacted providing a mechanism for a state’s response to allegations of

abuse and neglect. Juvenile and Family Courts were established in recognition of the

special expertise necessary to make complicated child-protection decisions.

In the last 25 years, the child protection system has grown enormously as societal

attitudes about the role of government in protecting children have changed. Every state has

a hotline through which citizens can telephone anonymously to report cases of abuse or

neglect. Most states mandate that certain professionals such as doctors, nurses, teachers,

and therapists report suspected cases of child abuse.

Over the years, concepts of abuse and neglect expanded to include more than

severe beatings or the failure to feed children. They now include emotional neglect, chronic

unsanitary conditions, and parental substance abuse. The bureaucracy necessary to

administer this system has also expanded as literally thousands of children became wards

of the state. The latest report shows nearly 16,000 children in foster care in Arizona alone.

With the growth of the child-protection industry, controls were necessary to ensure

that children had adequate protection from the bureaucracy as well as from their parents.

Courts became more vigilant in monitoring the status of children in state care. Children,

themselves, were assigned lawyers or guardians ad litem to look out for their interests.

While different states approach abuse or neglect differently, the Federal government

maintains an enormous influence on the nature of child protection. In a later section, the

handbook will look at the current role of Federal involvement in setting standards. Our first

section deals with the basic concept of dependency.

Child Welfare in Arizona Semi-Annual Report Update June 13, 2014, page 4.

DEPENDENCY PROCEEDINGS

What is a dependency?

A dependency proceeding is a formal court process to determine if a child’s well-

being requires the state to intervene in the parent-child relationship.

The proceeding

determines whether or not the child is dependent on the state to provide parental care

because of the parents’ inability or unwillingness to provide proper and effective care and

control.

A child may be dependent on the state because the child has been abused or

neglected or because the child is at risk for abuse or neglect in the imminent future.

Dependency is a somewhat broader concept than abuse or neglect and does not

necessarily imply that the parent is at fault or has committed some kind of wrongful act. For

example a parent may be ill or under some disability and unable to care for a child. Thus,

the focus of a dependency proceeding is on the capacity of the parent -- not just the parent’s

motives. There is really only one question: Does the child have a parent who can

provide minimally adequate parental care or does the state have to step in? Thus, for

example, a mentally retarded parent who would never harm a child or deliberately neglect a

child might nevertheless be considered incapable of caring for a child faced with a life

threatening disease which requires specialized training to monitor.

In other states, a dependency proceeding might be called a “child protective

proceeding” or a “child abuse and neglect” proceeding. The distinction is important

because the Arizona definition of dependency is significantly more inclusive than some

traditional notions of child abuse and neglect.

Dependency proceedings in Arizona are heard exclusively in the Juvenile Court.

ARS §§ 8-201(14); 8-801, et seq. children are raised by their birth parents. For our purposes,

we will use the term “parent” to mean birth parent, adoptive parent, guardian or some

other legal custodian. We will use the term “parent” to mean the person who is legally

raising the child.

ARS § 8-201(14)

Thus the State does not have to wait until the child is actually hurt to step in. If a parent is a

demonstrable crack cocaine addict, for example, the state does not have to wait until that parent

causes actual harm to the child in order to act.

Different states approach this problem in different ways. New York and Pennsylvania, for

example, utilize the concept of “abused or neglected child” rather than the notion of dependency.

The focus in those states is whether the child has been harmed or is in imminent danger of being

harm. There are some subtle advantages and disadvantages to the more parent-focused

dependencies versus the more child-focused definitions of an abused or neglected child. The

growing case law in both types of jurisdictions, however, appears to be making the distinctions

nominal at best.

ARS§8-202(B)

While Juvenile Court is, technically, a part of the Superior Court, the Pima County Juvenile

Court is housed in a separate building on Ajo Way near Kino Hospital (now called UMC

South). Throughout the state, the Juvenile Court operates under a different set of rules and

procedures than those used in other civil proceedings. Juvenile Court also has its own

culture or way of doing things that is less formal and, in many ways, more innovative than

that of other courts.

In theory, the Juvenile Court is not in the business of finding fault, assessing blame,

or meting out punishment. Rather, the Juvenile Court is interested s in protecting the child

from immediate harm and in providing the services necessary to help preserve the family.

If efforts to help make the family functional do not succeed, then the Juvenile Court is

empowered to find an alternative permanent and safe home for the child.

We say that the Court is not about parental fault. That is certainly true under the law.

However, the dependency process is a terrifically human. While the law may say otherwise,

in actual practice fault, blame, shame, attitude, and a host of other technically irrelevant

considerations play a huge role in determining what will or will not happen to a child in the

court process. None of the participants -- including the Judges, case managers, therapists,

and lawyers -- are immune from visceral reactions to parental behavior. That will, no doubt,

include you as well.

Dependency proceedings are usually initiated by the State through the Arizona

Department of Child Safety [DCS ].

Up until this past May, the Department of Economic

Security [DES] through Child Protective Services [DCS] handled child protection matters.

Because of a variety of factors, the Governor and State Legislature abolished DCS and

created the new agency, DCS .

If that isn’t confusing enough, people have been calling

the agency DCS for the last 30 years. It will be a hard habit to break. So, for the

foreseeable future, CPS and DCS are acronyms that refer to the same folks. In Juvenile

Court, DCS is represented by the Arizona Attorney General’s Office [the AG].

In Arizona, a dependent child is a person less than 18 years old who is:

(i) In need of proper and effective parental care and control and who has no

parent or guardian, or one who has no parent or guardian willing to exercise or

capable of exercising such care and control.

(ii) Destitute or who is not provided with the necessities of life, including

adequate food, clothing, shelter or medical care, or whose home is unfit by

ARS §8-862

Congratulations, you have now learned your first acronym!! There are many more to come.

Arizona law also provides that private individuals can initiate dependency proceedings (ARS §8-

841).

http://www.azcentral.com/ic/pdf/brewer-DCS-executive-order.pdf

reason of abuse, neglect, cruelty or depravity by a parent, a guardian, or any

other person having custody or care of child.

(iii) A child whose home is unfit by reason of abuse, neglect, cruelty or

depravity by a parent, a guardian or any other person having custody or care

of the child.

Thus, dependencies include traditional concepts of abuse and neglect, such as

excessive corporal punishment or failure to provide medical care. Dependencies may also

include less clear-cut notions of “risk”. For example, a child might be “at risk” of neglect

from a parent who -- although adequately caring for the child today -- is becoming

increasingly dependent on drugs or alcohol and whose long term capabilities are in doubt.

Similarly, a child might be at risk of long term psychological harm when the child has been

exposed to domestic violence in the household -- even when the violence is not directed at

the child.

To some extent, dependency may also relate to the particular needs of the child

rather than to the conduct of the parent. A dependency has been found where a child has

cerebral palsy and the parent, while capable of providing care for a healthy child, had

difficulty managing the child’s special needs.

One of the difficult aspects of practicing dependency law is that you will not find a

further definition of “dependent child” in the statutes. Trial Courts rarely publish their

decisions. And when decisions are appealed, the appellate courts grant broad discretion to

Juvenile Court Judges. It is, therefore, imperative that a juvenile court lawyer get to know

the lay of the land of the jurisdiction in which lawyer practices. Situations that may result in

dependency adjudications in one venue may be dismissed as insufficient in others.

What does it mean when a child has been adjudicated dependent?

Essentially, it means that the State may intervene to provide protection to the child

and/or services to the child and the family in order to try to remedy the problems that caused

the dependency in the first place. In practical terms, a number of outcomes can result. The

child could remain in the home or the child could be removed temporarily, for a long time, or

in some cases, permanently.

ARS §8-201(14). The statute further defines a dependent child as one who is (a)(iii) Under the

age of eight years and who is found to have committed an act that would result in adjudication as

a delinquent juvenile or incorrigible child if committed by an older juvenile or child and (iv)

Incompetent or not restorable to competency and who is alleged to have committed a serious

offense as defined in§13-604.

See, Adrine, Donald B. and Alexandria M. Ruden, Impact of Domestic Violence on Children,

OHIO DOMESTIC VIOLENCE LAW TREATISE, Ch. 14 (2000); and Ver Steegh, Nancy, The Silent

Victims: Children and Domestic Violence, 26 WM.MITCHELL L.REV 775 (2000).

ARS §8-821, §8-822, §8-845

If the child stays at home, the case could remain monitored by the Juvenile Court for

a time or dismissed outright. In either case, the State might provide services to support and

strengthen the family.

If the child is removed from the home, the child will be placed in

foster care or with a relative.

In addition, under court supervision, the State must develop

an appropriate individualized case plan to ensure the child’s health and safety and to

attempt to reunify the family.

The case plan should be designed to provide the assistance

necessary to alleviate the problems that gave rise to the dependency in the first place. In

most instances, if the parent follows and completes the case plan, the child will be

returned to the parent.

Removing a child from his or her family is serious business. Even when removal is

clearly warranted to protect the child’s physical safety, being taken from home can have

huge negative consequences for a child. Separation -- even from abusive parents -- is

traumatic. In addition, the child may be separated from brothers and sisters, forced to

change schools, isolated from friends and relatives, or placed in unfamiliar and often scary

surroundings. For an infant child, separation may impede or even forever destroy the natural

bonding and attachment process between parent and child.

Separation is no less difficult for a parent. In addition to the emotional shock of losing

one’s child, a parent may become ostracized by his or her family, stigmatized by neighbors,

or may lose eligibility for child support, government subsidies and public housing. Further,

in order to reunite with the children, a parent may be forced to navigate a child protective

bureaucracy that is often confusing, contradictory, and speaks an alien language. Many

times, completing a case plan is a task for which many sincere and well-meaning parents

are ill equipped.

Thus, continued visitation, good communication, and an intelligent case plan are

necessary to maximize the chances for successful reunification. The attorneys for the child,

the parents, and the State play key roles in this process.

Of course, whether or not a child is adjudicated dependent is subject to full court

process. Parents have significant rights to raise their children free from interference from

the State. Parents have a right to Court review of temporary decisions as well as the right to

a trial on the substantive allegations of dependency and on any proposed dispositions. That

process will be discussed in later sections of this handbook.

ARS §8-845, §8-846

ARS§8-821, §8-501; Foster home is defined in ARS §8-501 as a home maintained by any

individual(s) having the care or control of minor children other than those related by blood or

marriage. Foster homes are licensed and supervised by the state pursuant to ARS §8-516.

Relative placement may be ordered by the court even if the relatives are not licensed foster

placements. Relative placements may be eligible for state foster care payments. Even though

the placement is with a relative --which potentially minimizes disruption of the child’s life -- the

court will require the relative to obey the court orders regarding such things as visitation between

the parent and the child.

ARS §8-846

When a child is declared dependent and removed from the home, in nearly all cases,

the State is obligated to make “reasonable efforts” to help reunify the family.

These

efforts may include supervised visits, transportation, psychological testing and counseling

services, medical assistance, drug or alcohol monitoring and treatment, parental education,

job training, housing subsidies, or any number of other services that would help put the

family back together.

In many cases, parents and children are reunited with help from the Courts, the State

and other family members. In other cases, things do not proceed so smoothly. The current

reunification rate in Pima County is 49%. That means that about on half of all children

removed from their homes are returned. The other half will face a different path.

In some situations, such as severe child sexual abuse or acute drug addiction,

reunification is simply not a reasonable alternative. In others, for a variety of reasons, the

parent or guardian will be unable to remedy the conditions that caused the dependency in

the first instance within the time prescribed by law. The Court, then, is obliged to find a

permanent placement for the child either through adoption, permanent guardianship

with a relative or other appropriate person, or long term care consistent with the child’s best

interests. Long term care is called “Another Planned Permanent Living Arrangement” or

APPLA. There is a decided preference for adoption or guardianship over long-term

foster or relative care under Federal and State law.

In any event, whether or not progress is being made towards reunification, if a child

remains placed out of the parent’s home for twelve months [or for six months for a child

under 3], the Juvenile Court must hold a permanency hearing to determine a long term

plan for the child.

At a permanency hearing, the Judge must choose among the possible

permanent plans for the child. The permanent plan may involve returning the child;

continued reunification services for an additional six months; discontinuing reunification

services and placing the child in some other planned permanent arrangement [usually long-

term foster care]; seeking a permanent guardianship; or seeking permanent termination

of parental rights and freeing the child for adoption.

If, by the time of the permanency hearing, the parent is unable or unwilling to

complete the case plan and/or is unable or unwilling to remedy the problems that caused the

child’s removal, then the State may seek permanent termination of the parent’s rights. The

Juvenile Court refers to a permanent termination of parental rights as a severance.

In a severance proceeding, the State must not only prove certain specified statutory

grounds for termination, but also show that termination of parental rights is in the child’s

ARS §8-846 In other parts of the law the phrase “diligent and appropriate” efforts is used.

More on that later.

ARS §8-846

ARS §8-861, §8-862

ARS §8-862

ARS §8-531,et seq.

best interests.

In most cases where the parent’s rights are terminated, the State will seek

to place the child for adoption. In some cases, when reunification is not likely but when

termination is not in the child’s best interests and someone (usually another family member)

is willing to take permanent care of the child, the State may seek permanent guardianship

with the relative.

In the next several sections, we will discuss the dependency process in more detail.

The discussion will emphasize the critical role of the child’s attorney in helping to make the

process work. While this manual is designed to focus on the practical aspects of Juvenile

Court, keep in mind that there are a number of difficult philosophical and ideological themes

that challenge all the participants in the process.

THE PLAYERS

There are a number of important players in the child protective system. You, as the

child’s attorney, are one of the most important. Others include the Judge, the DCS Case

Manager, the Attorney General, the parents, the parents’ attorneys, Court Appointed Special

Advocates (CASA), Guardians Ad Litem, Court clerks, Court Reporters, court mediators,

and a host of others. The following is a list of some of the participants and their roles. As

you read through the handbook, feel free to come back and review this collection of people.

The Child

The child is the center of the whole process. The court has jurisdiction over children

from birth until age 18. Because the child is a child, adults, sometimes, do not listen to the

voice of that child. When the adults don’t listen, it is our job to make sure that the child and

the child’s legal interests are heard by the people that need to listen.

The Parent

The parent is the birth parent and/or any other lawful custodian. The parent can be

an adoptive parent, a legal guardian, a non-custodial parent, a grandparent or other relative

under some circumstances. There may be many parents involved in one of our cases. For

example, siblings might have a different father [or mother]. In most cases, the parent will be

the legal parent [the birth or adoptive parent] and/or the person who was taking care of the

child at the time DCS got involved if someone other than the birth or adoptive parent.

Families come in all shapes and sizes.

The Judge

Pretty much everything in the child protective system revolves around the Juvenile

Court Judge. Judges are charged with the ultimate responsibility for decisions concerning

ARS §8-533

ARS §8-862B and§8-871, et seq.

the lives of children who are before the court. There are no juries in the Juvenile Court.

The Judge is the final word on both the law and facts in every case.

There are two kinds of Judges in the Pima County Juvenile Court. There are

Superior Court Judges who are appointed by the Governor for fixed terms. At the end of

their term, they must stand for a retention election. A retention is an up or down vote by the

electorate with no opposition candidate. There are also Commissioners who are appointed

by the Presiding Judge of the Pima County Superior Court. Commissioners serve at the will

of the Presiding Judge.

In Juvenile Court, both types of Judges have the same responsibilities and powers

and are due the same respect. Any differences between Judges and Commissioners are

internal to the Court and rarely affect us -- except that Judges get law clerks and often hire

our students to fill those jobs. Exposure to Judges can be an unintended career perk for

some of you.

The Judges are assigned to the Juvenile Court by the Chief Judge usually on a three-

to five- year rotation. The Chief Judge controls the rotation and also appoints a presiding

Judge who is in charge of the administrative operations of the Juvenile Court. Currently the

presiding Judge of Juvenile Court is Kathleen Quigley. The other Judges and

Commissioners are:

Hon. Lisa Abrams

Hon. Jane Butler

Hon. Michael Butler

Hon. Julia Connors

Hon. Geoffrey Ferlan

Hon. Richard Gordon

Hon. Susan Kettlewell

Hon. Jennifer Langford

Hon. Brendan Griffen

Hon. K.C. Stanford

Hon. Catherine Woods

Hon. Wayne Yehling

There were jury trials for about three years in the early 2000’s. Parents could request a jury trial for

a petition to terminate parental rights. Apparently the only people who liked jury trials were some

parents and clinical professors. (We thought it was cool to have you doing jury trials). So the

Legislature went back to the Judge only system.

The Judges in the Juvenile Court work extremely hard. The Pima County Juvenile

Court is nationally recognized as one of the more innovative, responsive and hard-working

Juvenile Courts in the nation.

As you will quickly learn, a Judge’s day is made up of non-stop hearings, with very

little down time to prepare for the next case. As a result, Judges rely heavily on the

participants to bring them up to speed. Traditionally, Judges have relied on written reports

from DCS workers. But that does not always tell the whole story. (It is, after all, an

adversary system). For that reason, we encourage you, as the child’s attorney, to submit

written reports to ensure that the Judge is as fully informed as possible about the child’s

interests and needs.

All of the Judges have Chambers in the Juvenile Court Building at 2225 E. Ajo Way,

Tucson, AZ 85713. The main telephone number for the court is 740 -2000. The individual

Judges’ telephones are listed in the Blue pages of the phone book under Pima County

Juvenile Court and on the Pima County Superior Court website.

http://www.sc.pima.gov/?tabid=103

Case Managers

The Child Protective Services workers assigned to each family are called Case

Managers. There are two principal types of case managers: investigating workers and on-

going case managers.

As their name suggests, the investigating workers are responsible for the initial

response to an allegation of abuse or neglect. The investigating workers make a

determination whether or not there is credible evidence to make an administrative finding of

abuse or neglect. With help, they decide whether or not to remove a child from the parents.

They prepare an initial report to the Juvenile Court, notifying parents of their rights, and

develop and implement an initial case map

Once the matter has been brought to the Court, the investigating worker is

supplanted by the on-going case manager. The on-going worker is responsible for

developing the long- term case plan, for setting up therapy or other services, for working

with the parents to help them meet the case plan goals, and for communicating with the

Court.

In addition, both the investigator and the on-going workers are responsible for

providing disclosure to the other participants in the Juvenile Court processCthat is, for

making sure that the information gathered by DCS is made available to all the litigants.

Disclosure might include reports of drug tests, police reports, reports of therapists,

psychological evaluations, and other communications that are sent to DCS. Case Managers

are grouped geographically throughout the County in various units. The addresses and

A case map is a preliminary plan of reunification services.

phone numbers are listed in our course materials. You will also periodically receive e-mail

attachments with updated names, addresses and phone numbers of DCS workers.

We receive most of our disclosure through our mail box at the Juvenile Court.

Our mail box is in the attorney room as the far west side of the first floor. The boxes

are alphabetical. We are under “Bennett/child and family”.

A note of caution: There are behaviors we cannot control. One is the knee-

jerk insistence by some case managers to place our disclosures in the bin for the

Office of Children’s Counsel (OCC). The Office of Children’s Counsel represents the

vast majority of children in Juvenile Court – but not all of them. If there is something

you are waiting for – and it is not in our box – check with someone from OCC to see if

they received it by mistake. It happens way too often.

Two other notes of caution: DCS is represented in a dependency by the Office of

the Attorney General. Since the case managers are the contact persons for DCS, they are

technically “parties represented by counsel” in the dependency proceeding. As such, we

are not allowed to communicate with them absent their attorney’s permission pursuant to

Rule 4.2 of the AZ Rules of Professional Conduct.

Lately, the Attorney General’s Office

has become less comfortable allowing us – or any other lawyer – to communicate directly

with their client for anything other than the most minor pieces of information. For example,

it’s probably ok to send an email asking for the date and time of a Child and Family Team

meeting with a copy to the AG. It’s probably not ok to send an email asking the case

manager to reconsider visitation supervision.

Thus, whenever you want to speak to a DCS employee, go through the

Assistant Attorney General assigned to the case. It’s a pain but it is the best way to

avoid Bar complaints. This also means that if you plan on attending a Child and Family

Team meeting [CFT] or some other situation where DCS workers are present without their

lawyer, make sure that you notify the AAG, in advance, that you will be attending.

Second, DCS is undergoing a severe budget crunch. They do not have enough case

managers. They do not have enough resources to do their job as they would wish. That

creates an extremely uncomfortable situation. The workers are overworked, underpaid, and

cannot access the services they probably know would be most optimal. They have been

instructed to be somewhat minimalistic in their approach. They often have to say “no” when

they wish they could say “yes.”

We can and should be sympathetic with the difficult position of the individual case

manager. Nonetheless, we have a job to do – making sure our kids are well cared for,

“

In representing a client, a lawyer shall not communicate about the subject of the representation

with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer

has the consent of the other lawyer or is authorized by law to do so.”

ER 4.2 is found within Rule 42 AZ Rules of the Supreme Court. In the remainder of the handbook,

we will cite the ethical rules as ER ___.

getting the services they need. And that our client’s goals – whatever they may be – have a

fair chance of being reached. That puts us in an increasingly adversarial position with DCS.

Adversarial positions are not, however, best served by being needlessly

confrontational or rude. We should always try working cooperatively when possible.

Sometimes it is not possible and we need to resolve differences in court. But we should

never be impolite or uncivil; nor should we make differences personal.

The Attorney General

In Arizona, the Office of the Attorney General represents the Department of

Economic Security [DES] and it’s Division of Child Protective Services [DCS]. The AG’s

office prepares dependency petitions, severance motions, and other court pleadings. In

addition, the AG’s office advocates for DCS both in and out of court in the same manner as

any other lawyer would advocate for any other client.

Over the years, we have developed a very positive working relationship with the AG’s

Office -- even though we often oppose each other’s positions in court. One of the more

remarkable aspects of the Juvenile Court is the way in which opposing counsel have

recognized the critical importance of maintaining respect and communication for the mutual

benefit of our clients and ourselves. We can be adversaries without being needlessly

adversarial -- and never personal. With apologies to Ecclesiastes and the Byrds, there is a

time for drawing lines in the sand but, more often, there is a time for honest efforts to seek

mutually beneficial solutions.

The local AG’s office is at 3939 South Park Avenue, Suite 180, Tucson, AZ 85714.

Their phone number is 294-6655.

Parent’s Attorneys

Each parent in a dependency proceeding is entitled to and receives separate

counsel. Often, at first blush, both parents look like they have identical legal interests. After

all, they have been raising the child together. However, the potential for conflicts of interest

is always present. One parent might be dealing with a drug problem where the other is in

denial. There might be some domestic violence in the household. One parent might be

cooperative with the Court and the other defiant. As a result, the Court routinely assigns

separate attorneys to avoid conflict problems down the road.

Most of the parent’s attorneys are assigned directly by the court. These attorneys

have a contract with the Court whereby they get paid a prearranged flat fee per case. All of

the parent’s attorneys have to pass a minimum training and are required to maintain

continuing legal education with the Court as well. Parents may be assessed a fee to offset

the costs of their lawyer. There is a list of parent’s attorneys and their addresses and phone

numbers in the course materials.

The primary role of the parent’s attorneys is to advocate for their clients in court. A

good parent’s attorney, however, will perform many non-litigation functions to assist the

parent in navigating the case plan process. A good parent’s attorney will help the parent

understand the child protection process and negotiate visitation; advocate for appropriate

services for the parent; advise the parent on the choices that will most likely result in return

of the child; and assist the parents to carry out their case plan tasks.

Sometimes being a good parent’s attorney means delivering bad news or advice that

the client does not want to hear [“No, having a six pack each night is not a good idea.”].

Parent’s attorneys often have to deal with clients in denial or who are high or who are

mentally ill. It is not an easy job but it is an important one.

Guardian Ad Litem

A Guardian Ad Litem (GAL) is an attorney appointed by the Court to advocate for the

client’s best interests (as opposed to the client’s stated legal objectives). Therefore, unlike

an attorney appointed to represent a party as an attorney, the GAL’s functions

independently of the client’s wishes and reports directly to the Court regarding the client’s

best interests.

A GAL is appointed whenever the court determines that the client (whether adult or

child) is not capable of making decisions in his or her own best interests and needs

protection. A GAL might be appointed where the client is too young, is under a mental or

psychiatric disability, is incapacitated, or chooses a position that the client’s attorney [or

perhaps others] feels is dangerous to the client. We will often act as GAL’s when our clients

are too young to understand the process. The Court may appoint GAL’s for parents who

have some condition that impairs their ability to protect their own legal interests.

Court Appointed Special Advocate (CASA)

The CASA is usually a non-lawyer who provides the Court with reports concerning

the best interests of a child. The CASA is a volunteer specially trained to spend time with

children, to get to know them, and to gather information for the Court. CASA is an

independent program administered by the Arizona Supreme Court. CASA’s are given wide

authority to access police files, hospital records, and even sealed court records. Unlike an

attorney/GAL, CASA’s cannot question or cross examine witnesses in court. They can,

however, provide extensive information that would not otherwise be available to the Judge

and may testify in court.

See ARS 8-522 for a listing of CASA authority and responsibilities

The Role of the Child’s Lawyer

In Arizona there are two types of lawyers for children in dependency proceedings:

attorneys

and guardians ad litem. The essential difference between the two is that an

attorney for a child attempts to maintain a normal lawyer-client relationship with the child.

By “normal” lawyer-client relationship, we mean that, as with all attorney-client relationships,

the child-client sets the basic goals while the attorney is responsible for carrying out those

goals. The attorney keeps the clients secrets and confidences, advises the client on the

best course of action, keeps the client reasonably informed of what is happening and owes

his or her primary loyalty to the client.

On the other hand, the Guardian Ad Litem reports directly to the court and advocates

for what the Guardian perceives to be the child’s best interests irrespective of the child’s

stated wishes. There is no attorney client relationship. Nor is there any obligation to keep

the client’s secrets and confidences.

WHEN IS AN ATTORNEY AN ATTORNEY AND WHEN IS AN ATTORNEY A GAL?

First a little background music.

The federal Child Abuse Prevention and Treatment Act (CAPTA) requires the

appointment of a “guardian ad litem” “to represent the child” in abuse or neglect

proceedings.

CAPTA allows that the representative may be “an attorney or a court

appointed special advocate.” But CAPTA does specify precisely what “represent the child”

means. May the CAPTA-GAL act as a traditional client-directed counsel? Is the

GALsomething more like a “best interests” attorney? Or may the GAL be something else?

CAPTA itself does not offer an answer. Instead, the Act says that the purposes of the

guardian ad litem are

(I) to obtain first-hand, a clear understanding of the situation and needs of

the child;

and

In Arizona statutes and rules referring to Juvenile Court, the term “attorney” is used

interchangeably with the term “counsel”

See AZ Ethics Opinion 2000-6, September, 2000.

See 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000), which requires states to have “provisions and

procedures in every case involving an abused or neglected child which results in a judicial

proceeding, a guardian ad litem, who has received training appropriate to the role, and who may be an

attorney or a court appointed special advocate who has received training appropriate to that role (or

both), shall be appointed to represent the child in such proceedings–(I) to obtain first-hand, a clear

understanding of the situation and needs of the child; and (II) to make recommendations to the court

concerning the best interests of the child.”

(II) to make recommendations to the court concerning the best interests of

the child.

The “best interests” language does not sound as though the GAL can be a traditional

client-directed attorney. Nonetheless, many places, including Pima Count Arizona,

recognize that that appointing a client-directed attorney satisfies the CAPTA-GAL

requirement:

“because advocating the child’s wishes and preference could be seen as in the

child’s best interests, serving the child’s best interests, and helping the court to better

arrive at overall decisions that are best for the child.”

The Arizona statute is similar but not exactly the same as CAPTA. ARS § 8-221 (I)

requires that

In all juvenile court proceedings in which the dependency petition includes an

allegation that the juvenile is abused or neglected, the court shall appoint a guardian

ad litem to protect the juvenile's best interests. This guardian may be an attorney or a

court appointed special advocate.

There is a little disconnect between 8-221 and actual practice. First, courts in

Arizona appoint either a GAL or an attorney irrespective of whether or not there is an

allegation of ”abuse and neglect.” Dependency can result from circumstances where there

is no abuse or neglect – such AZ courts routinely appoint representatives for children in all

cases.

In addition, Rule 40 of the Rules of Procedure for Juvenile Court allows the Court to

appoint a GAL “to protect the interest of the child.”

Rule 40.1 impliedly authorizes the

appointment of attorneys for children. Rule 40.1 also sets out the responsibilities of both.

These new rules set out some basic standards – meet with child clients before hearings,

attend trainings, explain the attorney or GAL role to the child in a developmentally

appropriate manner.

In Pima County, the Court has chosen to appoint only attorneys as GAL’s – no lay

people.

Pima County has also chosen to distinguish between attorneys appointed to

See, e.g., Ala. Code § 12-15-102 (2013) Guardian ad litem is a “licensed attorney appointed by a

juvenile court to protect the best interests of an individual without being bound by the expressed

wishes of that individual.”

See Guidelines for Public Policy and State Legislation Governing Permanence for Children, U.S.

Dept.of Health and Human Services, Administration on Children Youth and Families, 2002 found at

http://archive.org/stream/guidelinesforpub00duqu/guidelinesforpub00duqu_djvu.txt

ARS § 8-221(I)

Rule 40, Rules of Procedure for the Juvenile Court

Rule 40.1, Rules of Procedure for the Juvenile Court

represent a child as “counsel” and those appointed to represent a child as GAL. This

distinction appears to be authorized by ARS § 8- 824(B)(3) which mandates the presence of

the child’s “guardian ad litem or attorney” at the preliminary protective hearing.

When is an attorney a Guardian Ad Litem and when is an attorney a Lawyer?

In Pima County, the default position is that we are a child’s attorney and not the GAL.

In Maricopa County, it is the opposite. Confusing? Wait, we’ve got more.

In Pima County, by local court policy, the Juvenile Court appoints an attorney for

each child in a dependency proceeding.

Thus, when the Clinic represents children, unless

specifically directed by the Court, our default position is that we act as the attorneys for

our child-clients.

In addition, pursuant to another local rule, we follow the American Bar Association

Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases.

The ABA standards distinguish a client-directed lawyer [“child’s attorney”] from a

GAL. The ABA standards define a child’s attorney as:

Although Rule 40 above contemplates that the GAL be either an attorney or lay person, new Rule

40.1 [Duties and Responsibilities of Appointed Counsel and Guardians Ad Litem] seems to

imply that GAL’s need to be attorneys statewide. Rule 40.1 Rules of Procedure for Juvenile Court.

ARS § 8- 824(B)(3)

GALs are not routinely appointed but may be appointed where circumstances warrant. We will

discuss those circumstances a little more fully below.

ABA Standard A-1. These standards can be found at the ABA web site at:

http://www.americanbar.org/content/dam/aba/administrative/child_law/repstandwhole.authche

ckdam.pdf There is not universal agreement about the role of a child’s lawyer and the ABA

standards are not the only ones. We will explore some of the other standards in class during the

semester.

The term "child's attorney" means a lawyer who provides legal services for a

child and who owes the same duties of undivided loyalty, confidentiality, and

competent representation to the child as is due an adult client.

The ABA standards define a GAL as follows:

A lawyer appointed as "guardian ad litem" for a child is an officer of the court

appointed to protect the child's interests without being bound by the child's

expressed preferences.

So, our default position is that we are client directed lawyers for children.

Here is what the ABA says:

These Standards explicitly recognize that the child is a separate individual with

potentially discrete and independent views. To ensure that the child’s independent

voice is heard, the child’s attorney must advocate the child’s articulated position.

Consequently, the child’s attorney owes traditional duties to the child as client

consistent with ER 1.14(a) of the Model Rules of Professional Conduct. In all but the

exceptional case, such as with a preverbal child, the child’s attorney will maintain this

traditional relationship with the child-client. As with any client, the child’s attorney may

counsel against the pursuit of a particular position sought by the child. The child’s

attorney should recognize that the child may be more susceptible to intimidation and

manipulation than some adult clients. Therefore, the child’s attorney should ensure

that the decision the child ultimately makes reflects his or her actual position.

That may work for a teenager. But how do you take direction from a 2 year old?

The ABA standards recognize that a very young or a pre-verbal child is unable to

direct a lawyer. Therefore, the ABA standards imply that these are situations – especially

for a very young child – where the attorney essentially acts as a Guardian ad Litem:

the Standards do not require the child's attorney to discuss with the child

issues for which it is not feasible to obtain the child's direction because of the

child's developmental limitations, as with an infant or preverbal child.

The short answer is that we do what we can to try and figure out what the

child’s position would be -- knowing what we know about the child. In other words, try

and figure out – from the child’s point of view – what the child’s legal interests are. It is a

pretty fine line between that and being a Guardian ad Litem where we simply advocate for

what we perceive to be the child’s best interests. And reasonable persons can and do

disagree. That’s one of the things that makes this work so interesting.

Standard A-1 Commentary

Standard B-4 Commentary 2

The ABA standards [and those of the Arizona State Bar] recognize that a court may

need to appoint a GAL when the attorney believes that the child’s age and/or level of

development impairs the child’s ability to comprehend what is happening and to make

informed and intelligent choices; and the often closely related situation where the attorney

believes that the child’s choices are not in the child’s best interests.

Both the ABA Standards and the State Bar Committee Opinion ask us to follow Rule

1.14 of the Model Rules of Professional Conduct [which is identical to Rule 1.14 of the

Arizona Rules of Professional Conduct]. Rule 1.14, as interpreted by both the ABA and

Arizona Committee, treats age like any other disability related to the client’s capacity to

make reasoned decisions. Essentially, we are asked to deal with the disability as best we

can while attempting to maintain as close to a lawyer-client relationship as possible.

Rule 1.14 also asks attorneys to make an independent determination of the client’s

capacity and requires lawyers to request that the court appoint a guardian [in this case, a

GAL] when the client is not capable of a reasoned decision.

The scope of the

guardianship should be related to the area in which the client is having difficulties. The

attorney would continue to advocate the client’s articulated position once the guardian is

appointed.

FYI, in Maricopa County, attorneys are appointed as child-directed advocates

only for older children – usually 12 and up. Otherwise, the Maricopa default position

is to appoint Guardian Ad Litem for all children.

What does the GAL do?

The Guardian Ad Litem reports directly to the court and advocates for what the

Guardian perceives to be the child’s best interests -- even if they are contrary to the child’s

expressed wishes. There is no attorney-client relationship. The GAL owes his or her loyalty

directly to the court. Nor is there any obligation to keep the client’s secrets and

confidences.

Under the ABA standards, the determination of the child’s best interests must be

made as objectively as possible.

Standard B-4 Com mentary 3; AZ Ethics Opinion No. 86-13, November 11, 1986

ER 1.14(a) “(a) When a client's ability to make adequately considered decisions in connection with

the representation is impaired, whether because of minority, mental disability or for some other

reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship

with the client.”

ER 1.14 “(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk

of substantial physical, financial or other harm unless action is taken and cannot adequately act in the

client's own interest, the lawyer may take reasonably necessary protective action, including

consulting with individuals or entities that have the ability to take action to protect the client and, in

appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”

See AZ Ethics Opinion 2000-6,September, 2000.

The determination of the child's interests should be based on objective criteria

addressing the child's specific needs and preferences, the goal of expeditious

resolution of the case so the child can remain or return home or be placed in a safe,

nurturing, and permanent environment, and the use of the least restrictive/detrimental

alternatives available.

Commentary

A lawyer who is required to determine the child's interests is functioning in a

nontraditional role by determining the position to be advocated independently of the

client. The lawyer should base the position, however, on objective criteria concerning

the child's needs and interests, and not merely on the lawyer's personal values,

philosophies, and experiences. The child's various needs and interests may be in

conflict and must be weighed against each other. Even nonverbal children can

communicate their needs and interests through their behaviors and developmental

levels. See generally James Garbarino & Frances M. Stott, What Children Can Tell

Us: Eliciting, Interpreting, and Evaluating Critical Information from Children (1992).

The lawyer may seek the advice and consultation of experts and other

knowledgeable people in both determining and weighing such needs and interests.

Even though a GAL is not functioning as a traditional lawyer, a GAL in Pima County

is still an attorney and must abide by the Arizona Rules of Professional Conduct.

The only

caveat is that, since the GAL is not the lawyer for the child, the GAL is not obligated to keep

the child’s secrets nor is the GAL in a position to give the child legal advice. That role is

reserved for the child’s attorney.

Because the GAL is an attorney, the GAL should not act as a sworn witness under

ER 3.7. That rule states that:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a

necessary witness unless:

(1) the testimony relates to an uncontested issue

(2) the testimony relates to the nature and value of legal services rendered in the

case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

Since the GAL is advocating for the child’s best interests on behalf of the court, it

would seem that, unless there would be a substantial hardship on the court, the GAL should

not be called as a witness. That prohibition would not prevent the GAL from offering a

reasoned position statement based on other evidence.

Thus, the major differences between a GAL and a child’s attorney can be summed up

in the following chart:

GAL ATTORNEY

Standard B-5

AZ Ethics Opinion 2000-6, September, 2000.

OWES LOYALTY TO court child

CHILD’S SECRETS

SHARED WITH court child only

ADVICE GIVEN TO none child

INFORMATION GIVEN TO court child

VOICE GAL’S own child’s

Nearly every state and jurisdiction handles this question differently when providing

representation for children. Within the basic attorney versus GAL continuum, there is no

shortage of permutations and hybrids among the various states.

Arizona itself is a bit

schizophrenic. ARS §8-221 has two somewhat contradictory provisions. ARS §8-221

Subdivisions A and E state that a juvenile is entitled to be represented by counsel in a

dependency and that the Court may appoint counsel for the child if the child is indigent or if

there is a conflict of interest with the child’s parents.

The reality is that most children are indigent when they are not with their parents.

Also, Pima County assumes that a child with agency has a conflict of interests with the

child’s parents. That doesn’t mean that a child’s position is necessarily adverse to that of

the parents. Many, if not most, children want to return home. In most situations, a conflict

of interest presents itself when the child engages in privileged attorney-client

communications or when there is a risk that the child’s interests on a particular issue differs

from that of one or both parents.

On the other hand, subdivision I of the same statute, states that the Court must

appoint a Guardian Ad Litem in a dependency where there is an allegation of abuse or

neglect.

Under Subdivision I, the GAL can be either an attorney or a CASA. In addition,

Juvenile Court Rule 40 authorizes the appointment of a GAL when the court deems it

necessary to protect the interest of the child.

The Court may also appoint a Court Appointed Special Advocate [CASA] when it

appears that a CASA will either provide some special assistance to the Court or could

provide some special services to the child. Because the CASA program is peopled by

volunteers, the need for CASAs usually exceeds their availability. CASAs will often perform

one of the major functions of a GAL, that is, reporting to the court and making

See Koh-Peters, Jean, Representing Children In Child Protective Proceeding: Ethical and Legal

Perspectives

ARS §8-221

It is hard to imagine a situation in a dependency in which there is not, at the very least, a

potential conflict of interest between children and their parents. See ER 1.7, AZ Rules of

Professional Conduct. However, for an interesting counterpoint see Guggenheim, Martin

A.,Reconsidering the Need for Counsel for Children in Custody, Visitation and Child Protection

Proceedings, 29 Loy.U.Chi.L.J. 299 (1998).

ARS §8-221

Rule 40 Arizona Rules of Procedure of the Juvenile Court

recommendations about what is in the best interests of the child. CASA’s may even testify

as witnesses in some cases. Unlike GALs, non-attorney CASA’s may not call witnesses at

trial nor may they cross-examine witnesses.

So What Does It Mean When We Say That We Are Attorneys for Children?

The easy answer is that we follow the American Bar Association Standards. We

strongly encourage you to spend some significant time reading the ABA Standards -- a copy

of those standards are appended to this handbook. Whether you agree with them or not,

they are a terrific starting point for identifying the cusp issues of ethically representing

children. Get to know the standards and to understand the principles behind them.

BUT, as your Clinic experience progresses, we fully expect that most of you will

experience one or all of the following three reactions to the ABA Standards at some point:

1. There will be at least one ethical choice for which the ABA Standards provide little

helpful guidance.

2. You will flat out disagree with at least one standard.

3. You will confront a situation where you find that it is one thing to understand the

ABA standards; it may be quite another to use them to answer particular ethical choices that

you will have to make. There is a difference between finding a line in theory and making a

choice in the context of a particular case.

This question of what we do when we represent children is perhaps the single most

recurring and fascinating ethical challenge you will face this semester. It is one of those

questions about which child advocates have debated since the first day that courts began to

recognize the children’s voice in abuse and neglect cases.

It is one of the questions that

make representing children such an inherently interesting and stimulating area of practice.

With those caveats in mind, let us examine the ABA standards a little more closely.

The ABA standards operate under one overriding principle about which there is little

disagreement. That principle is that children are entitled to attorneys who owe the same

levels of competence, diligence and loyalty to their child-clients as that demanded by their

adult clients.

We agree. Child clients are entitled to no less than our very best work.

Atwood, Barbara Ann, Representing Children: The Ongoing Search For Clear And Workable

Standards, 19 J. Am. Acad. Matrim. Law. 183 [Yep, that Barbara Atwood]

Standard A-1. The Child's Attorney.

Where the standards provide some controversy is where and how they deal with the

awkward situation present by two circumstances: (1) where the attorney believes that the

child’s age and/or level of development impairs the child’s ability to comprehend what is

happening and to make informed and intelligent choices; and (2) the often closely related

situation where the attorney believes that the child’s choices are not in the child’s best

interests.

Before dealing with the controversial, let us take a look at what the ABA Standards

mean by a competent lawyer for children. The ABA Standards defines a lawyer as:

The term "child's attorney" means a lawyer who provides legal services for a child

and who owes the same duties of undivided loyalty, confidentiality, and competent

representation to the child as is due an adult client.

The phrase “undivided loyalty” is important. That means that our jobs as children’s

lawyers require us to focus on the legal needs of our child clients first and last. It is not our

job to try to please the Agency or the parents or even the Courts which pay our contract.

Our job is to independently assess each of our client’s legal interests and act accordingly.

If our representation of a child is impaired, in any way, by our representation of another

client or by our working relationship with DCS or by any other factor, then we have a conflict

of interest which we must resolve in favor of our client.

Undivided loyalty also means that a child’s attorney must make an independent

investigation of the facts. In Juvenile practice much of our information comes from DCS

disclosures. After all, DCS arranges for evaluations, therapy, supervised visits and other

services so reports are generally made directly to the case managers. That disclosure is

vital to our ability to represent our clients.

Nevertheless, we must not necessarily take what is contained in DCS or parent

disclosures as gospel. Like all second hand reports, they are subject to human error and

human biases. We have an obligation to our clients to independently check things out

for ourselves.

“Confidentiality” is the third aspect of the definition of attorney. Remember, under

the Arizona Rules of Professional Conduct, our confidentiality obligation to keep our clients’

secrets goes far beyond privileged private communications between lawyer and client.

Id.

There may be occasions where our “loyalty” to our client’s wishes may be compromised by our

loyalty to what we see as our clients’ best interests. We will discuss that difficult situation

below.

Privilege is an evidentiary rule. Privilege describes the rule of evidence that makes the

content of certain private communications between lawyers [or clergy or others by statute]

inadmissible in court. Privilege is a separate and distinct concept from the ethical duties to keep

our clients secrets under the Arizona Rules of Professional Conduct.

Our obligations extend to any information acquired by us from any source in the course of

representing a child.

In the Clinic, we can and should share information among ourselves. The duty of

confidentiality does not mean that we cannot share information within the Clinic. We

encourage you to talk with each other about your cases and clients. Just remember, it stops

at the Clinic door. Be careful when talking about your clinic cases with others that you do

not reveal information about a particular client.

In Juvenile Court, difficult confidentiality issues sometimes emerge in more subtle

ways. For example, in Juvenile Court practice, DCS is obligated to share information about

children with the Court, with other parties, with therapists, with physicians and with other

service providers. We do not have the same obligation to share. We should only share

information -- even with DCS or parents -- where the release of information is authorized by

our clients or otherwise required by Court order or Court rule.

In the atmosphere of the Juvenile Court -- and in the spirit of cooperation that is one

of the underpinnings of the Model Court -- it is easy to start talking about our clients’ lives

with the people who are trying to help them. That conversation is not a bad thing. We can,

and should, communicate frequently with the Attorney General, with DCS, with foster

parents, and with service providers. However, in those communications, we still must not

forget the principle of confidentiality as it applies to us as the child’s attorney. Again, unless

we have our client’s permission to communicate information, or unless the release of

information is otherwise authorized by Court order or Court rule, we must be careful not to

reveal to others information acquired during the course of our representation.

Perhaps, the most difficult challenge when dealing with confidential information may

be when we possess information which we know would be in our clients’ best interest to

share with others but which our clients will not allow us to reveal. For example, we may be

representing a teenager who is a runaway. That child may contact us. We may learn where

the child is living; and it may appear to us to be an unsafe place.

We may feel in our hearts that the best thing in the world would be for us to contact

DCS and bring that child in out of the cold. Nevertheless, none of the Arizona rule 1.6

AZ ER 1.6(a) states: “(a) A lawyer shall not reveal information relating to the representation of

a client unless the client gives informed consent, the disclosure is impliedly authorized in order

to carry out the representation or the disclosure is permitted or required by paragraphs (b), (c) or

(d) or ER 3.3(a)(3)”

exceptions would apply to that secret.

Unless we can convince our client to permit us to

release the information, we must keep that secret under the ABA Standards.

Similarly, a child client might inform us that he or she is being abused by a

stepparent but does not want us to reveal that information because of perceived

repercussions in other aspects of the child’s life. Again, we might wish to try to persuade

the client to allow us to reveal that information, but we must nevertheless respect both the

privileged and confidential nature of the disclosure to us. That’s not always easy.

So Does That Mean We Don’t Report Child Abuse When We Know About It?

In light of Penn State, there is great pressure to report suspected child abuse.

How

does that play out for us? Are attorneys mandatory reporters under Arizona Law? Should

we report to the hot line if one of our child-clients discloses information to us that reveals

suspected abuse or neglect? Would we violate attorney-client confidentiality if we did?

The short answer is that these are really tough questions. So, if there is any

question whatsoever, report your concerns to your supervising attorney.

The longer answer is this:

1. We are not mandatory reporters. ARS 13-3620 requires:

Any person who reasonably believes that a minor is or has been the victim of

physical injury, abuse, child abuse, a reportable offense or neglect that appears

to have been inflicted on the minor by other than accidental means . . . shall

immediately report or cause reports to be made of this information to a peace

officer or to child protective services in the department of economic security,

except if the report concerns a person who does not have care, custody or

control of the minor, the report shall be made to a peace officer only.

Note, the Arizona rule is different from Rule 1.6 of the ABA Model Rules of Professional

Conduct. Under the ABA rule, we might be allowed to reveal this information. However, under

the Arizona rule, the exceptions to Rule 1.6 require mandatory disclosure of client secrets that

are necessary to prevent our client from causing substantial physical injury to another or the

permissive disclosure of an intent by our client to commit a future crime. These exceptions do

not apply to past conduct or to the conduct of others.

That does not mean that we cannot make our best effort to convince our client to take a

different position. Under AZ ER 2.1, we are allowed and encouraged to give our clients our best

advice. The ABA Standards similarly instruct us to help our client make good decisions for

themselves. See Commentary to Standard A-1. “As with any client, the child's attorney may

counsel against the pursuit of a particular position sought by the child.” We just cannot try to

override a client’s free will by our position of perceived authority or by superior muscle.

In fact, the U of A has proposed rules that would require anyone working with children, including

us, to report suspected child abuse. We have requested an exemption from that rule for lawyer-client

and guardian ad litem relationships.

ARS 13-3620

On the surface, that appears to apply to us and would trump confidentiality.

However, ARS 13-3620 defines a person as:

For the purposes of this subsection, "person" means:

1. Any physician, physician's assistant, optometrist, dentist, osteopath,

chiropractor, podiatrist, behavioral health professional, nurse, psychologist,

counselor or social worker who develops the reasonable belief in the course of

treating a patient.

2. Any peace officer, member of the clergy, priest or christian science

practitioner.

3. The parent, stepparent or guardian of the minor.

4. School personnel or domestic violence victim advocate who develop the

reasonable belief in the course of their employment.

5. Any other person who has responsibility for the care or treatment of the minor.

So, it appears that a lawyer is not a “person” – and, therefore, not a mandatory

reporter. Perhaps Shakespeare was correct.

But that does not resolve the question of whether or not we may report. Our ethical

rules are where we turn to address that. Rule 1.6 does not appear to have an exception for

client information relating to child abuse or neglect. See footnote 50 above. So the default

position is that we cannot report without client permission.

Of course, part of our job is to counsel clients to make wise decisions. Nothing

prevents us from talking through the options and possible scenarios to counsel our clients to

give us permission. The latter task is where good lawyering may be most important.

If this kind of situation arises, make sure you don’t go it alone. Talk it over with

your supervising attorney. Explore all the options. And don’t ignore your instincts,

they are there for a reason.

Competent representation means just that. We must possess sufficient information

about the law, the system of child protection, and about our case to professionally represent

our client.

In addition to loyalty, confidentiality and competence, the ABA Standard’s definition of

attorney implicitly recognizes the other functions of an attorney-client relationship -- some of

which the Standards later address explicitly and in detail. When reading these standards,

try to keep in mind these other essential aspects of lawyering:

1. Clients set the goals of representation.

ER 1.2. With a child client, it may be difficult to broach that question or to discern the child’s

position. Depending on a child’s age and developmental stages, understanding the child’s goals

may be an extremely daunting task. See ABA Standards B-4.

2. Lawyers have an obligation to keep their clients reasonably informed so that

clients can make intelligent goal-setting decisions.

3. Lawyers should give their clients the full benefit of their advice -- including

practical and moral non-legal advice where appropriate.

GETTING SPECIFIC

Rule 40.1 of the Arizona Rules of Procedure for Juvenile Court sets out very specific

guidelines for lawyers who represent kids in dependencies:

A. Attorneys appointed for children shall make clear to children and their caregivers whether their

appointment is as a guardian ad litem or as an attorney and the ethical obligations associated with

their role.

B. Attorneys and guardians ad litem shall inform the child, in an age and developmentally

appropriate manner, about the nature of the proceedings, the attorney's role, that the child has the

right to attend hearings and speak to the Judge, the consequences of the child's participation or lack of

participation, the possible outcomes of each hearing, and other legal rights with regards to the

dependency proceeding and the outcomes of each substantive hearing.

C. Attorneys and guardians ad litem shall participate in discovery and file pleadings when

appropriate and attorneys must develop the child's position for each hearing. The duties of the

attorney and guardian ad litem may include identifying appropriate family and professional resources

for the child, as well as subpoenaing witnesses, and the attorney and guardian ad litem shall inquire of

the child regarding potential placements and communicate this information to Child Protective

Services as appropriate.

D. The attorney and guardian ad litem shall meet in person with the child before the preliminary

protective hearing, if possible, or within fourteen (14) days after the preliminary protective hearing.

Thereafter, the attorney and guardian ad litem for the child shall meet in person with the child and

have meaningful communication before every substantive hearing. Substantive hearings include all

preliminary protective hearings, all periodic review hearings, permanency hearings, any hearings

involving placement, visitation or services, or any hearing to adjudicate dependency, guardianship or

termination. If the child is under the age of 5 or is not able to communicate effectively, meetings

should include observations within each placement home. At each substantive hearing the attorney or

guardian ad litem shall inform the court as to the child's position concerning pending issues and, if the

child is not present, an explanation for the child's absence. In all cases, attorneys and guardians ad

litem for children should also communicate with placements, and if practicable, observe the

placement. . . .

ER 4.2

ER 2.1

Rule 40.1, note 35 supra.

E. Attorneys and guardians ad litem shall also maintain contact with caretakers, case managers,

service providers, childcare providers, CASAs, relatives and any other significant person in the

child's life as appropriate in order to meet the obligations of informed representation of the child.

F. To the extent possible, attorneys and guardians ad litem should attend or provide input to Child

Protective Services staffings, Foster Care Review Board reviews and Child and Family Team

meetings. . . .

H. Attorneys and guardians ad litem shall promptly identify any potential and actual conflicts of

interest that would impair their ability to represent a child. Either the attorney or the guardian ad litem

shall, if necessary, move to withdraw or to seek the appointment of an additional attorney or guardian

ad litem if he or she deems such action necessary.

I. Attorneys and guardians ad litem shall be knowledgeable of the child welfare agencies,

governmental programs, and community-based service providers and organizations serving children

(e.g., behavioral health, developmental disability, health care, education, financial assistance,

counseling support, family preservation, reunification, permanency services and juvenile justice).

Attorneys and guardians ad litem shall be knowledgeable about how these services are accessed and

shall advocate for such services as appropriate for the child.

Part C of the ABA Standards [“ACTIONS TO BE TAKEN”] lists some particular

functions of a child’s lawyer

. The titles of the various articles in the ABA Standards speak

volumes about the ABA Standards’ expectations of children’s attorneys.

Without getting into great depth, we repeat the titles here:

C-1. Meet With Child.

C-2. Investigate.

C-3. File Pleadings.

C-4. Request Services.

C-6. Negotiate Settlements.

Part D of the Standards sets out the attorney’s obligations at hearings. Most of the

obligations are self-evident -- e.g. attend hearings, make motions, ask questions. Several,

however, are (1) not always easy to accomplish and/or (2) may be difficult decisions to

make.

Regardless of your point of view of the proper role of a child’s lawyer, Part D presents

a checklist of important matters for every child’s lawyer to consider:

1. Explaining to the client, in a developmentally appropriate manner, what is

expected to happen before, during and after each hearing.

Part C ABA Standards

D-2 ABA Standards

2. Making decisions about whether or not a child should attend a hearing.

3. Making decisions about whether or not a child will testify.

4. Making decisions about whether legal representation is necessary in non-juvenile

court matters such as child support, school matters, mental health hearings, etc.

as well as the continuation of services to the child.

TOUGH TASKS AND TOUGH CHOICES.

The more hotly debated aspects of the ABA Standards deal with the ultimate role of

the lawyer. Are children’s attorney’s mere mouthpieces? How can we be sure what our

clients want? What happens when our view of a child’s best interests conflict with their

choices?

The ABA Standards resolve most doubts in favor of the traditional lawyer role of

advocating the client’s stated position. The Standards assume the competency of a child to

make decisions with the assistance of the child’s attorney. Thus, the ABA Standards state

that a normal lawyer-client relationship is possible when a child can express a preference to

the attorney.

The ABA Standards are not ambiguous on this point:

B-4 The child's attorney should elicit the child's preferences in a developmentally

appropriate manner, advise the child, and provide guidance. The child's attorney

should represent the child's expressed preferences and follow the child's direction

throughout the course of litigation.”

For some, this line of articulation is unrealistic. After all, what five-year old is going to

say that he or she does not want to go home? And at age five, what could a five year old

possible know about her mother’s addiction to crystal meth or her father’s refusal to pay

child support? For others, the real issue is whether or not the child’s voice will be heard.

Children often know more than we give them credit for. Besides, if we refuse to advocate

for the child’s point of view, we will effectively silence the child’s voice in critical life decisions

that will affect that child forever.

As you undertake your representation of children, consider where you stand in your

particular cases. If you could write the standards, where would you draw the lines? In the

context of particular cases, are you comfortable with the ABA position?

D-5 ABA Standards

D-6, 7, 8 ABA Standards

D-12 ABA Standards

D-13 ABA Standards

One thing is certain. Especially for younger children, helping them to articulate a

position is an extremely difficult task for any child’s attorney. It requires a real sense of the

child’s capabilities. The lawyer must spend sufficient time with the child to begin to know

the child in the context of the child’s own world and interests.

The lawyer must be able to

get behind the child’s words to understand where the child is truly coming from. This is no

easy effort.

In addition, the lawyer may face the difficult dilemma that the mere fact of asking the

question could be harmful to the child. For example, should we ever force a child to choose

where the child should live? “Do you want to live with your mother or your father?” What a

heavy burden to place on a young child.

Indeed, the lawyer may face the corollary question of whether giving the child the

necessary information to make an informed decision might, by itself, be harmful to the child.

Do we tell a child that her mother is a prostitute or a drug addict? The last thing we want as

lawyers is to exacerbate the pain or the emotional harm that some of our child clients face.

Yet we have a duty to keep them informed.

Making such decisions may require us to consult with experts. At the very least, we

need to carefully consider the ramifications of our own actions on the life of our child clients.

The other major question is: “what happens when the child’s wishes are clearly

contrary to their best interests?” The ABA Standards, AZ Rules of Professional

Conduct and an opinion from the Arizona State Bar Committee on Rules of Professional

Conduct all offer some guidance.

However, before we examine the standards and rules, it is critically important to

remind ourselves that, as attorneys for children, we ought to be sure that what the child

wants is clearly not in the child’s best interests. Sometimes, what appears to be clear on the

surface becomes a lot more opaque when we dig deeper. We need to be sure that we

understand the reasons that the child expresses wishes that concern us. There is a big

difference between:

1. “I want to go home because my parents promised me an i-pad” and

2. “I want to go home because I miss my parents, my friends and all my stuff gets

stolen at the group home.”

Once we understand the reasons, two things may happen. First, the reasons may

convince us that what the child wants may make some sense. Second, the reasons may

cue us in to a different set of options that may work for the child. Of course, the possibility

that what the child wants is truly not in the child’s best interests should always be

considered.

Prof. Koh Peters talks extensive about the Achild in context” in her book, Representing

Children in Child Protective Proceedings: Ethical and Practical Considerations, Lexis Law

Publishing, 1997.

AZ Ethics Opinion No. 86-13, November 11, 1986

Both the ABA Standards and the Committee Opinion ask us to follow Rules 1.14 of

the Model Rules of Professional Conduct [which is identical to Rule 1.14 of the Arizona

Rules of Professional Conduct]. Rule 1.14, as interpreted by both the ABA and Arizona

Committee, treats age like any other disability related to the client’s capacity to make

reasoned decisions. Essentially, we are asked to deal with the disability as best we can

while attempting to maintain as close to a lawyer-client relationship as possible.

Rule 1.14 also asks attorneys to make an independent determination of the client’s

capacity and requires lawyers to request that the court appoint a guardian [in this case, a

GAL] when the client is not capable of a reasoned decision

. The scope of the

guardianship should be related to the area in which the client is having difficulties. The

attorney would continue to advocate the client’s articulated position once the guardian is

appointed.

Both the ABA Standards and the State Bar Opinion define the point at which the

client cannot adequately act in the client’s own interest as when the client takes a position

contrary to his or her best interests. In those situations both the ABA and the State Bar say

that we must ask for a GAL.

Interestingly, the two documents interpret best interests slightly differently. The State

Bar Committee Opinion refers to the child’s best interests as a generalized concept.

With a slightly different twist, the ABA Standards says that the attorney should ask for a GAL

only when the client’s position is contrary to the client’s best interests concerning an issue of

safety or harm.

Under either cast of “best interests”, the trigger point at which an attorney

ER 1.14(a) “(a) When a client's ability to make adequately considered decisions in connection

with the representation is impaired, whether because of minority, mental disability or for some

other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer

relationship with the client.”

ER 1.14 “(b) When the lawyer reasonably believes that the client has diminished capacity, is

at risk of substantial physical, financial or other harm unless action is taken and cannot

adequately act in the client's own interest, the lawyer may take reasonably necessary protective

action, including consulting with individuals or entities that have the ability to take action to

protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem,

conservator or guardian.”

“The point at which a lawyer believes that the client cannot act in his own best interests is the

same point at which the client’s wishes conflict with what the lawyer believes to be the client’s

best interests.” AZ Ethics Opinion No. 86-13 at page 3 (1986)

B-4 ABA Standards Comment (3) (3) If the child's attorney determines that the child's

expressed preference would be seriously injurious to the child (as opposed to merely being

contrary to the lawyer's opinion of what would be in the child's interests), the lawyer may request

appointment of a separate guardian ad litem and continue to represent the child's expressed

preference, unless the child's position is prohibited by law or without any factual foundation. The

child's attorney shall not reveal the basis of the request for appointment of a guardian ad litem

which would compromise the child's position.”

should ask for a GAL is when -- despite the advice of the attorney -- the client advocates a

position that the attorney believes is contrary to the child’s best interests.

In contrast to the ABA and State Bar Standards, others posit that if a client can make

a reasoned argument for the client’s position, the attorney should respect that position and

not ask for a GAL regardless of the lawyer’s view of whether that position conflicts with the

client’s best interests. A literal reading of Rule 1.14 would suggest that the line is not when

there is a conflict between what the client wants and what the lawyer thinks is in the client’s

best interests. Rather the focus is solely on the lawyer’s assessment of the client’s capacity

to act. Can the client act on her own behalf or not?

Perhaps in a practical sense, there is no difference.

Some would argue that asking for a GAL is tantamount to waving a red flag that the

child-client’s voice should be ignored. Once a lawyer tells the Judge -- even indirectly -- that

his client does not have the capacity to make decisions, there is a very human tendency to

then give little shrift to the client’s position. Thus a decision to ask for a GAL should be a

decision of last resort. Nevertheless, the duty under the ABA Standards and under the

State Bar Opinion is for the lawyer to make the request if the lawyer deems it necessary.

Special Problems of the Pre-verbal Child

Obviously a very young child who cannot articulate what he or she wants is not able

to tell the lawyer what his or her position might be. The ABA Standards tell us:

“ . . the Standards do not require the child's attorney to discuss with the child issues

for which it is not feasible to obtain the child's direction because of the child's

developmental limitations, as with an infant or preverbal child.”

The ABA Standards further state:

“(1) To the extent that a child cannot express a preference, the child's

attorney shall make a good faith effort to determine the child's wishes and

advocate accordingly or request appointment of a guardian ad litem

There are circumstances in which a child is unable to express a position,

as in the case of a preverbal child, or may not be capable of

understanding the legal or factual issues involved. Under such

circumstances, the child's attorney should continue to represent the child's

legal interests and request appointment of a guardian ad litem. This

limitation distinguishes the scope of independent decision-making of the

child's attorney and a person acting as guardian ad litem.

B-4 ABA Standards (First Commentary)

B-4 ABA Standards (Second Commentary)

Implicit in this standard is the concept that the lawyer may be able to figure out the

child’s wishes without a clear statement from the child. The child’s legal position may be

discernible to the lawyer even without express instructions from the child. The idea is that if

the lawyer gets to know the child well enough in context, the lawyer may be able to divine

the position of even a preverbal child.

Note, the ABA Standards tell us that we must request appointment of a GAL when

the child is preverbal or lacks capacity to understand what is going on. However, under the

Arizona Rules, it appears [and it is certainly the custom in Pima County] that attorneys are

appointed both GAL and Counsel at the outset.

When we cannot act as counsel because

the child cannot communicate at a sufficiently functional level, then we simply assume the

role of GAL. No further appointments are generally made or requested.

On this latter point, at least, the practice in Pima County appears to be at odds with

the ABA Standards required in the Juvenile Court Attorney’s Contract. But local practices

usually win out over written rules.

The Silent Child

Sometimes, with good reason, our child clients may not want to take a position.

Perhaps they do not yet trust us enough to open up. Perhaps the act of choosing might be

more difficult to face than any of the actual choices. Should a child ever be asked to

choose between mother or father? Or whether or not to visit an abusing parent?

Sometimes kids just want the controversy to end and for the adults to make the decision.

In those situations, the ABA Standards instruct us to respect our client’s decision

NOT to exercise choice.

The child's failure to express a position is distinguishable from a directive that the

lawyer not take a position with respect to certain issues. The child may have no

opinion with respect to a particular issue, or may delegate the decision-making

authority. . . The lawyer should clarify with the child whether the child wants the

lawyer to take a position or remain silent with respect to that issue or wants the

preference expressed only if the parent or other party is out of the courtroom. The

lawyer is then bound by the child's directive. . .

A Final Comment on Representing Children Before You Get Out There

Representing children is not easy. There are great rewards but they come at a price.

First, there is so much to learn about the law, about children, about the agencies, about

services. There is more to learn that you could possibly learn in two semesters -- maybe

two lifetimes. Knowing that you don’t know enough can be enormously frustrating. But it

can also be educational. A good lawyer does not need to know all the answers. A good

lawyer needs to know how to find them.

Rule 40. Arizona Rules of Procedure for the Juvenile Court

B-4 ABA Standards (Third Commentary)

Second, it is often not an easy job to work with children in abuse and neglect settings.

They are fragile. They may be confused. They may be angry or scared. They may not talk

to you or may tell you to drop dead or worse.

They are most likely experiencing things that children should not have to experience.

But if you understand them and get beyond their defenses, you can have a significant

impact on their lives. As an added bonus, if you can learn how to develop a solid lawyer-

client relationship with a child, that will transfer to any lawyer-client relationship in the future.

Third, the adversary Court system, even though it is there to protect children, was not

designed with children in mind. Lawyers, testimony, disclosure, due process are all things

for adult law students -- not for children. There is little privacy for children in this system

because Courts need information to make the best decisions. You may be asking children

to make some very adult-like decisions which may be difficult for you to honor and respect –

and for them to make.

As a result, as a child’s lawyer, you may face some very challenging strategic and

ethical decisions -- not the least of which is deciding what your own role will be. These are

not easy problems. So one final reminder. Don’t go it alone. Be part of the team. Help

each other out. And never be afraid to ask a question.

THE ROLE OF FEDERAL LAW

Although each state is empowered to handle child protection in its own way, federal

law plays a powerful role in the process. The federal government, through the power of the

purse, sets out a number of guidelines for states to follow. There are significant financial

incentives for states to comply with the federal requirements.

As mentioned in an earlier section, federal involvement in child protection is a

relatively recent phenomenon. As late as 1973, there was little or no federal involvement in

child protection. In 1974, Congress adopted the Child Abuse Protection and Treatment Act

(CAPTA), which provided financial assistance to the states for both foster care and the

investigation of suspected child abuse and neglect.

By the late 1970s, more than 500,000 children were living apart from their families.

The foster care system was overloaded. Children were forgotten and shuffled from foster

home to foster home. In 1977, the United States Supreme Court expressed concern over

"foster care drift" in Smith v. Organization of Foster Families for Equality and Reform.

There, the Court noted that "many children apparently remain in this ‘limbo' indefinitely."

In 1980, in response to the mounting criticisms of the foster care system, Congress passed

the Adoption Assistance and Child Welfare Act of 1980 ["CWA"]

One commentator stated the following:

Congress passed the CWA to provide children with more permanent

placements than foster care permitted. It sought to prevent unnecessary

foster care placements, to encourage permanency planning for children, and

to reunify families where possible. . . [H]eralded by child advocates across the

country, [the CWA was based on a family preservation philosophy and, thus,

actually promoted the rights of the entire family]. . .

This philosophy has as its starting point the belief that a child's biological

family is the placement of first preference and that "reasonable efforts" must

be made to preserve this family as long as the child is safe. Where these

efforts fail and the child must be removed, the family preservation philosophy

holds that reasonable efforts must still be made to reunify the child with the

family. This pro-family sentiment was a great change from the child-rescue

philosophy of the 1970s, which neglected or failed to recognize the harm that

separation can cause to both children and their parents.

Bailie, Kathleen A., The Other "Neglected" Parties in Child Protective Proceedings: Parents In

Poverty and the Role of the Lawyers Who Represent Them, 66 FORDHAM L. REV. 2285, 2289 (1999).

431 U.S. 816 (1977).

Smith, 431 U.S. at 836.

Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500.

Bailie, supra note 28 at 2289-2291.

The key provision of the CWA was the requirement that states must make

“reasonable efforts to reunify the child with the family.” This requirementCthat the state has

an affirmative obligation to preserve and strengthen the ties between children and their

parentsChas been codified in Arizona law

and remains a fundamental principle of the child

protection system. What, in fact, constitutes “reasonable efforts,” however, is hotly debated

and often is the central issue in Juvenile Court dependency hearings. In addition to the

principle of “reasonable efforts” the CWA also mandated, for the first time, that children who

are removed from their families are entitled to representation either through a Guardian Ad

Litem, a Court Appointed Special Advocate [CASA], or through litigation counsel.

Despite the passage of the CWA, the average length of stay in foster care remained

unacceptably lengthy. As a result, Congress passed the Adoption and Safe Families Act of

1997 (ASFA), which aspires to speed up achieving permanency for children.

Among other

things, ASFA revised the “reasonable efforts” requirements in cases of extreme abuse and

mandated time lines within which the states must establish a permanent plan for each child.

ASFA, essentially, encourages states to hasten efforts to terminate parental rights. For

example, when children have been in foster care for 15 of the previous 22 months, ASFA

requires states to commence proceedings to permanently terminate parental rights [often

referred to as TPR or a severance] . In addition, ASFA offers significant financial bonuses

to states that successfully place children in adoptive homes.

The requirement for a termination hearing has changed the face of child protection

proceedings. In essence, Congress has said that parents no longer have an unlimited time

frame in which to get their acts together. If they cannot make the home minimally adequate

(in the eyes of the state and court) within the ASFA time frame, they may lose their children

forever.

There are three exceptions to the ASFA requirement that the State file a

termination proceeding:

1. the child is being cared for by a relative (if the state elects to include this

exception);

2. the state documents and makes available to the court a “compelling reason” that

seeking termination would not be in the best interests of the child; or

3. The state determines that certain services identified in the child’s case plan are

necessary for the child’s safe return home, but that it has failed to provide them

according to the schedule specified in the case plan.

ARS§8-845C; see also Mary Ellen C. v. ADES, 287 Ariz. 185 (App.Div.1, 1999) (right to parent

is a fundamental right, which the state has a duty to preserve).

Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115.

Arizona has taken that time mandate one step further. Arizona law now requires that the state

hold a permanency hearing within one year of the date that a child was taken into state care. If the

resulting plan is for termination of parental rights or for guardianship, then the state must file a

proceeding to carry out that plan within ten days thereafter. If the child is under age three, the time

frame for permanency hearing is six months. ARS§8-862(A)(2).

ASFA,§302(4), 42 U.S.C.§675(5)(E)

The ASFA mandate requires only that the state commence a TPR proceeding; it does

not mandate the result. In other words, the Juvenile Court is free to make findings either

that the state requirements for termination have not been proven or that, even if proven,

termination is not in the best interests of the child. Thus, the state need not be successful in

terminating parental rights to meet the requirements of federal law.

Even though the State is not required to be successful in terminating parental rights,

the state has a financial incentiveCin the form of adoption bonusesCto be successful.

Moreover, once a proceeding is filed, it has a life of its own. Human nature being what it is,

the State’s case managers and the state’s attorney will try to win.

There are many other federal influences on child protection law. The most important

are the federal supports for the services offered to parents and children to reunify the family.

Federal funds for medical assistance, housing, therapy, and training are all significant

factors in determining whether or not some families can be reunified.

While there is no space here to go into detail, the availability of specific categories of

support -- either to individuals or to the statesCcertainly has impact on the “reasonable

efforts” made by the states.

HOW A DEPENDENCY PROCEEDING GETS STARTED

Reports and Initial Investigations

Dependencies start with some kind of report to the authoritiesCthe appropriate

authority in Arizona being the Child Protective Services (DCS). Reports of suspected abuse

or neglect are made to Child Protective Services in many different ways. They can come

from neighbors or relatives. They can also come from mandated reporters Cthat is,

professionals who are statutorily bound to report suspected cases of child abuse.

Mandated reporters include professionals like teachers, doctors, nurses, social workers,

police officers, and day care providers. Parents are also considered mandated reporters.

Reports can be made anonymously or by identified persons on the Child Abuse

Hotline. That number is 1-888-767-2445. Reports on the hotline are sent into a Central

Statewide Registry operated by DES. Regardless of the source, once contacted by the

Central Registry, local DCS is required to investigate reports of suspected abuse or neglect.

The standard procedure is for DCS to obtain information from the reporter and to personally

check on the child. If deemed appropriate, DCS will visit the child’s home, talk to parents or

other caretakers, consult with medical providers, and interview other persons with relevant

information.

ARS §13-3620.

The DCS investigating criteria are reproduced at the end of this chapter.

When there is a report of suspected abuse or neglect, there is often a parallel

criminal investigation. Acts which can give rise to a dependency may also violate criminal

statutes. Technically, the presence of a criminal investigation has no bearing on the DCS

investigation. DCS must complete this investigation regardless of the decisions of law

enforcement to prosecute or not.

In practice, there is a growing trend for law enforcement to drive some of the

decision-making when criminal charges are a being investigated. There is new societal

undertone is to emphasize the criminality of child abuse and neglect. There have been a

number of high profile abuse cases that have caused a fairly seismic shift in focus. The

short term result is that DCS has begun to defer to law enforcement in a number of ways

that impact children. For example, a criminal court protective order preventing a parent from

seeing a child now takes precedence over any Juvenile Court order.

This past year, in response to the shifting landscape, the State of Arizona created the

Office of Child Welfare Investigations. OCWI is an independent branch of the Department of

Economic Security and is responsible for responding and investigating criminal conduct

allegations of child abuse and neglect with the appropriate local law enforcement entity.

OCWI’s objectives are to:

•Investigate criminal conduct cases called into the Child Abuse Hotline as well as

those determined to be criminal conduct cases by DCS case managers

•Consult on cases in which law enforcement and assigned DCS case managers have

encountered barriers

•Assist in the implementation of the joint investigation protocol where law

enforcement has declined or been unable to participate

•Provide training to law enforcement, DCS and other multi-disciplinary team members

to ensure best practices and best outcomes for at-risk children

How does that play out for our clients? First and foremost, their parents may be

charged with crimes. Criminal charges make it much harder for parents to engage in

rehabilitative services and to speak out in court. Criminal charges add stress to a stressful

situation. Their criminal attorneys have likely advised them to exercise their rights to remain

silent. So addressing their issues becomes more problematic.

DCS may change its protocols as well. Recently, where a child has been the victim

of sexual or physical abuse by a family member, DCS has begun recommending that visits

with non-offending relatives be supervised or eliminated so “that they won’t talk with the kids

about the criminal case.” Prosecutors have requested “no contact” orders from the criminal

court for the same purpose. While separation from well-meaning non-offending relatives

In theory, the criminal justice process operates independently from the child protective process

-- each process having different objectives and policies. Nevertheless the existence of a criminal

investigation can have a dramatic impact on the course of a dependency matter. Counsel for

children need to be mindful of what is happening with any parallel criminal investigation.

ARS § 8-862(E).

may be beneficial to a criminal investigation or prosecution, separation may have an

adverse impact on the child and on the ability of the family to begin to address its problems.

[On the other hand, no kid needs pressure from relatives or friends to recant]. It’s

complicated.

If, after investigation, DCS determines that no credible evidence exists to support the

allegation, it will make a finding that the allegation is unfounded and administratively close

the case. DCS will NOT expunge the records of unfounded investigationsConly seal the

records from public scrutiny. The State Legislature has decided that even unfounded

allegations may hold some future relevance in applications for foster care licenses, teaching

positions, and possible future allegations of abuse or neglect.

If DCS determines that a report is serious enough to warrant intervention, they will

commonly choose one of three tacts:

1. Offer services to the family without initiating formal dependency

proceedings.

2. Initiate a dependency proceeding but leave the child in the home --

sometimes called an in-home dependency.

3. Remove the child and initiate a dependency proceeding. We will

normally be involved only if a dependency proceeding has been started.

The TDM

In Pima County, unless there is an emergency situation, DCS will not remove a child

without holding a meeting of all concerned called the Team Decision Meeting or TDM. At

the TDM, DCS will try and get the family to agree to a voluntary plan to strengthen the family

and family dynamics without removing the child. That plan could involve temporarily placing

the child outside of the home and/or connecting the parent to in-home services. Part of the

TDM will be to assess the family’s strengths and weaknesses to see if a realistic plan can be

created. If DCS and the family can agree on services that do not require that the child be

removed, then no formal dependency will be filed [and we will never know about the matter].

If they cannot come to an agreement, then a dependency is sure to follow.

Removing a child

The State has broad powers to temporarily remove a child from the home if

Atemporary custody is clearly necessary to protect the child because the child is either:

1. suffering or will imminently suffer abuse or neglect”

or 2. suffering serious

physical or emotional damage that can only be diagnosed by a medical doctor or

ARS §8-807

"Abuse" means the infliction or allowing of physical injury, impairment of bodily function or

disfigurement or the infliction of or allowing another person to cause serious emotional damage

psychologist

100

Note: the State need not show that actual abuse or neglect has

occurred -- only the imminent probability that abuse or neglect will occur.

Once a child has been removed, the State must immediately notify the parent and file

a petition with the Juvenile Court alleging the grounds for the dependency proceeding. The

parent is entitled to a temporary custody hearing to determine if removal was necessary

or if the child can now be safely returned. The parent is given a temporary custody

notification (TCN) -- which is the beginning of the legal process.

101

When a child is removed, the child will be placed in some form of temporary foster

care. A temporary placement can be with a relative, a foster family, a group home, a

temporary shelter for children, or a hospital facility. The clear preference is for the child

to be placed with a relative.

DCS CRITERIA FOR RESPONDING TO A REPORT OF MALTREATMENT

The Department of Child Safety maintains a website to explain how they work and

their criteria for making decisions. The website is very interesting reading. It contains a

wealth of important items of information and, of course, it is designed to show DCS in its

best light. The following is taken from the DCS website.

102

Arizona Department of Child Safety

as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and

which emotional damage is diagnosed by a medical doctor or psychologist pursuant to section 8-

821 and is caused by the acts or omissions of an individual having care, custody and control of a

child. Abuse includes:

(a) Inflicting or allowing sexual abuse pursuant to section 13-1404, sexual conduct with a minor

pursuant to section 13-1405, sexual assault pursuant to section 13-1406, molestation of a child

pursuant to section 13-1410, commercial sexual exploitation of a minor pursuant to section 13-

3552, sexual exploitation of a minor pursuant to section 13-3553, incest pursuant to section 13-

3608 or child prostitution pursuant to section 13-3212.

(b) Physical injury to a child that results from abuse as described in section 13-3623, subsection

C. ARS§8-201(2).

"Neglect" or "neglected" means the inability or unwillingness of a parent, guardian or custodian

of a child to provide that child with supervision, food, clothing, shelter or medical care if that

inability or unwillingness causes substantial risk of harm to the child's health or welfare, except

if the inability of a parent or guardian to provide services to meet the needs of a child with a

disability or chronic illness is solely the result of the unavailability of reasonable services.”

ARS §8-201(24)

100

ARS §8-821

101

ARS §8-824

102

Check it out for yourself. DCS Assessment Process

Child Safety and Risk Assessment (CSRA)

Practice Guide

Section I: Background Information (review priors and DPS history before the initial

response whenever possible)

A. Prior History in Arizona or other states or jurisdictions:

 Document each report, including the current report, with the date, summary of allegations,

findings, and service outcomes

 Document if there is a pattern of maltreatment, chronicity, increasing severity of the

allegations, or a change in the household composition

B. Department of Public Safety (DPS) background checks and results:

 List any arrests, charges, and disposition for all parents of the child victim(s)

 List any arrest, charges, and disposition for each adult in the home where the maltreatment

occurred

 Document each adults relationship to the child(ren)

C. Court Orders Limiting or Restricting Contact:

 Document a good faith effort was made to obtain the information: as part of this good faith

effort, the CPS Specialist must ask the parent, guardian, or custodian under investigation if a

current Court order exists

 List any Court order that may restrict or deny custody, visitation or contact with the child(ren)

 Identify jurisdiction and involved parties

 Summarize any Court orders that indicate a potential safety concern

D. Joint Investigation and/or Police Involvement:

 Identify Law Enforcement agency, Detectives names, contact information, and DR# for the

incident

 Document the status of the police investigation and outcomes

 Joint Investigation Detail (LCH 431) will still need to be completed for all reports containing

the "Criminal Conduct" tracking characteristic

E. Documents Reviewed (if applicable):

 Police reports

 Other Criminal history

 Medical records

 School records

 Court orders

 Provider reports on services provided to the family

Section II: Interviews with all required parties – Document each interview in narrative form

with the date, type, location and who was present, information collected, or the

concerted efforts to locate, contact, and interview all required parties

A. Reporting Source – The interview must gather information about:

 Any additional information the reporting source has related to current maltreatment, child

functioning, adult functioning, parenting practices or disciplinary practices

B. Each alleged child victim – Children must be interviewed separately and the interview must

gather information about:

 Who lives in the home and who are the child’s caretakers

 Observations of the child (Infants, toddlers, non-verbal children) and the home

 Child functioning (Medical and dental health, mental/behavioral health, emotional well-being,

education and/or development, special needs that would make the child vulnerable or unable

to self-protect)

 Response to allegation(s)

 Assessment of all types of maltreatment

 Parent/caregiver functioning (Substance use, mental health, domestic violence or violence out

of the home, intellectual and physical health or limitations)

 Family rules, chores and disciplinary practices

 Relationships among family members

 Whether child feels safe at home and with caregivers, why or why not?

 Is there anything the family needs?

C. All other children in the home where the child victim(s) reside (primary residence) and all

other children in the home where the alleged maltreatment occurred - The interview must

gather information about:

 Who lives in the home and who are the child’s caretakers

 Observations of the child (Infants, toddlers, non-verbal children) and the home

 Child functioning (Medical and dental health, mental/behavioral health, emotional well-being,

education and/or development, special needs that would make the child vulnerable or unable

to self-protect)

 Response to allegation(s)

 Assessment of all types of maltreatment

 Parent/caregiver functioning (Substance use, mental health, domestic violence or violence out

of the home, intellectual and physical health or limitations)

 Family rules, chores and disciplinary practices

 Relationships among family members

 Whether child feels safe at home and with caregivers, why or why not?

 Is there anything the family needs?

D. Custodial parent / Non-custodial parents of the child victim(s) - (If applicable and if the

identity and whereabouts can be reasonably determined and contact would not be likely to

endanger the life or safety of any person or compromise the integrity of a criminal

investigation or the CPS investigation) – The interview must gather information about:

 Notification of rights and parent’s response

 Both parents must be asked if there are any Court orders (Good faith effort)

 Who lives in the home/child’s caretakers

 Location of each victim’s non-custodial parent, if applicable

 Observations of the parent and the home

 Response to allegation(s)

 Assessment of all types of maltreatment

 Protection of child by non-abusing caregiver, if applicable

 Child functioning (Medical and dental health, mental health, emotional well-being, education

and/or development, general perception and expectations of each child, and attachment to and

nurturance of each child)

 Parent/caregiver functioning (Substance use, mental health, intellectual and physical health or

limitations, domestic violence or violence out of the home, criminal involvement/history,

history of abuse or neglect as a child, recognition of problems and motivation to change,

economic resources, adequacy of housing, family social supports, family stressors, coping

skills, current services and the need for additional services)

 Family rules, chores and disciplinary practices

 Relationships among family members

 Court orders that restrict or deny custody, visitation or contact between any parent or other

adult in the home and any child in the home

E. Spouse/Partner/Significant Other of the custodial parent/Other adults living in the home

where the alleged maltreatment occurred, if applicable – Interviews must gather

information about any of the following that are applicable to the individual:

 Who lives in the home/child’s caretakers

 Observations of the parent and the home

 Response to allegation(s)

 Assessment of all types of maltreatment

 Protection of child by non-abusing caregiver, if applicable

 Child functioning (Medical and dental health, mental health, emotional well-being, education

and/or development, general perception and expectations of each child, attachment to and

nurturance of each child)

 Parent/caregiver functioning (Substance use, mental health, intellectual and physical health or

limitations, domestic violence or violence out of the home, criminal involvement/history,

history of abuse or neglect as a child, recognition of problems and motivation to change,

economic resources, adequacy of housing, family social supports, family stressors, coping

skills, current services and the need for additional services)

 Family rules, chores and disciplinary practices

 Relationships among family members

 Court orders that restrict or deny custody, visitation or contact between any parent or other

adult in the home and any child in the home

F. Alleged perpetrator, if someone other than listed above – Interviews must gather

information about any of the following that are applicable to the individual:

 Who lives in the home/child’s caretakers

 Observations of the parent and the home

 Response to allegation(s)

 Assessment of all types of maltreatment

 Protection of child by non-abusing caregiver, if applicable

 Child functioning (Medical and dental health, mental health, emotional well-being, education

and/or development, general perception and expectations of each child, attachment to and

nurturance of each child)

 Parent/caregiver functioning (Substance use, mental health, intellectual and physical health or

limitations, domestic violence or violence out of the home, criminal involvement/history,

history of abuse or neglect as a child, recognition of problems and motivation to change,

economic resources, adequacy of housing, family social supports, family stressors, coping

skills, current services and the need for additional services)

 Family rules, chores and disciplinary practices

 Relationships among family members

 Court orders that restrict or deny custody, visitation or contact between any parent or other

adult in the home and any child in the home

G. Collateral contacts (other persons known to have knowledge of the maltreatment or who

could confirm or rule-out a safety threat to the child victim or any other child in the home

where the alleged maltreatment occurred):

 These may include but is not limited to other relatives not living in the home, school

personnel, pediatrician and other medical professionals, law enforcement, tribal

representatives, and out-of-state contacts

 Any additional information gathered related to the alleged abuse or neglect, child safety or

risk of maltreatment

Section III: Analysis of information and conclusions about the presence of risk factors and/or

safety threats and type of intervention needed:

A. Assessment of Present Danger – Narrative must include:

 Based on the initial contact with the child, was an immediate action required in order to

ensure child safety before any further interviews or assessment could take place?

 If a protective action was required, describe the action.

 If the protective action includes a safety monitor, briefly describe how the safety monitor will

manage the current safety threat to the child(ren)

B. Assessment of Risk Factor(s) for each child in the family and parents, guardian, or custodian

and need for intervention:

 Identify and document risk factors based on information about the family's history and current

functioning in each life domain which include the following:

Child Risk factors: Child Vulnerability/Self Protection; Child's Special Needs

(disability)/Behavior Problems (alcohol abuse, drug abuse)

Parent, Guardian, Custodian Risk factors: Parenting Skills/Expectations of child; Parent

Empathy, Nurturance, Bonding; Parent Substance Abuse (alcohol abuse, drug abuse); Parent

Mental, Emotional, Intellectual or Physical Impairment; General History of Violence by

Caregiver towards Peers and/or Children; Domestic Violence in Family; Protection of Child

by Non-Abusive Caregiver; Parent History of Child Abuse/Neglect as a Child; Parent

Recognition of Problem/Motivation to Change, Level of Cooperation

Family Risks factors: Economic Resources of Family; Family Social Support System; and

Current Family Stressors

 Document protective factors (behaviors) by the parent, guardian, and custodian that mitigate the

level of risk in the family.

 Document family strengths, positive qualities or resources the family can build upon to enable

them to care for their child(ren), support case planning.

 Prior to closing a case, the family, CPS Specialist and other service team members should meet to

obtain the thoughts of the parents and children about their unmet needs and develop a aftercare

plan to address these needs and improve family functioning.

C. Assessment of Impending Danger – Narrative must include:

 All safety criteria must be met to identify a safety threat.

a. Vulnerable child: Is the child victim unable to protect him or herself or seek protection

from others, regardless of the child’s age? Is the child defenseless, exposed to behavior,

conditions, or circumstances the child is powerless to manage?

b. Out-of-control: Is there an adult in the home who is able to control the identified safety

threat to the child victim? Will the safety threat continue without external intervention?

c. Severity: Could the threat cause or result in serious pain, injury, suffering, terror or

extreme fear, impairment, or death of child?

d. Specific Time Frame: Is the safety threat to the child's safety occurring now or likely to

occur within the next 30 days? Could it happen just about any time within the near future-

today, tomorrow or during the upcoming month?

e. Observable Family Condition: What is the specific behavior, emotion, attitude,

perception, or situation by the parent/caretaker that can be seen and described and makes

the child victim unsafe? Observable does not include suspicion and gut feeling. It can be

clearly described and reported.

D. Safety Decision:

 Safe - No child is in present or impending danger

 Unsafe - At least one child is in impending danger

o List the name of each unsafe child

Safety Plan: If a child is unsafe, a safety plan is required. The safety plan must be the least

intrusive/restrictive intervention to the family and sufficient to control the safety threats (in-home,

out-of-home, or combination).

 If a child is placed in a licensed home or facility, a safety plan agreement (CPS 1030B and CPS

1030 C) is not required.

 Document DPS checks for all non- DES licensed safety monitors in a Key Issue case note type.

 Complete the hard copy safety plan agreement with the family and the safety monitor. Scan the

document into a Key Issue case note type.

Reminder: CHILDS Windows still needing completion

 Report Detail (LCH031)

 Joint Investigation Detail (LCH431)

 Investigation Tracking Characteristics Findings (LCH049)

 Investigation Allegation Findings (LCH048)

 NCANDS

 Case Closure (LCH060) – Closures only

Section IV: Clinical Supervision Discussion

 Review the Child Safety and Risk Assessment to confirm enough information was gathered to

make an informed decisions on child safety and family risk factors

 If there are three (3) or more prior DCS reports in Arizona or other jurisdictions:

1. Have the previous investigation/assessment outcomes been reviewed to assess causes

for repeated reports

2. The need for intervention based on the current and prior investigations regardless of

the investigation findings (including proposed substantiated and unsubstantiated

allegations); and

3. Whether unresolved risk factors or service needs are present that warrant voluntary or

involuntary intervention and provision of services to support the family, including an

in-home intervention or in-home dependency, regardless of the investigation findings

 Review the Child Safety and Risk Assessment to confirm all required documents were

obtained (the Child Safety Specialist must obtain or gather sufficient information to rule out

the need or ability to obtain the following records: medical exam record, if one was required

by policy; child medical records; child educational records; DCS history records from Arizona

or other jurisdictions; DPS criminal history information on all victim's parents and adults in

the home where the maltreatment occurred; court orders that restrict or deny custody,

visitation or contact between any parent or other person in the home and the child victims;

parent or child behavioral health records or other provider reports

 Review the Child Safety and Risk Assessment to confirm it demonstrates sufficient

information was gathered during each interview (sufficient information confirms the presence

or absence of each of the 17 safety threats and reveals the risk level in relations to each of the

14 risk domains)

 Discuss with the Child Safety Specialist the information gathered from all interviews and

documents reviewed to determine the existence of child maltreatment, circumstances

surrounding the maltreatment, adult functioning, child functioning, general parenting

practices, and disciplinary practices. Analyze and determine if present danger, impending

danger, or risk factors require DCS intervention. If no intervention is required, explain why.

In addition, explain the level and type of aftercare planning required.

 When a DCS report alleges a criminal conduct allegation, review with the Child Safety

Specialist the Criminal Conduct Investigation Practice Guide to ensure that all investigative

tasks on a criminal conduct investigation have been completed.

 Discuss with the Child Safety Specialist and document if there was sufficient evidence

gathered to draw a conclusion on findings for each allegation in the case.

 Document your Clinical Supervision Decision



THE PPH PROCESS

When the State removes a child, a number of legal processes are triggered. In Pima

County, we follow Model Court procedures which we now call PPH procedures. The Model

Court procedures were created in 1997 after studies showed that Pima County Juvenile

Court cases were not working their way towards resolution in a timely and effective manner.

Cases were taking an average of 3.2 years to get through the system. Also, families were

spending up to 90 days in limbo before serious reunification efforts were put into place. As

a result, during this initial period, minimal services were in place, minimal visitation was

provided, and the family was deteriorating rather than healing.

These delays were not unique to Pima County. Indeed, they were endemic

throughout the country.

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With the help of some very decisive action by Nanette Warner,

Presiding Judge of the Juvenile Court at that time, Pima County was designated one of

thirteen model courts nationally. Pima County began to experiment with procedures

designed to streamline the process. The entire Child Protection Community was engaged

and the result was what we call the Model Court procedures. Procedures included

attempting to engage all the parties in a cooperative effort at reunification at the earliest

possible time; implementing more training and accountability to the court and for the

attorneys and parties; and revising the calendaring system to help alleviate court

congestion. After some experimentation, the PPH procedures were adopted for all cases.

The key to the model court process is to engage all the participants in a cooperative

effort to support the family at the earliest possible time. Attorneys are assigned to both the

parents and the children in advance. Within seven days of the child’s removal -- even

before legal process is served and the dependency petition is filed with the court -- a 30

minute meeting (Pre-hearing Conference) is scheduled back to back with an initial 45

minute hearing (Preliminary Protective Hearing [PPH]). The PPH also serves as a

mandatory temporary custody hearing if necessary.

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The parents are given information

about the process in the form of a document called the temporary custody notice (tcn).

DCS puts together an initial proposed case map before anyone even gets to court.

PPH notification process

The Juvenile Court sets aside prescheduled times called Model Court or PPH Blocks

for the Pre-hearing Conference and the Preliminary Protective Hearing

105

. Attorneys are

103

See RESOURCE GUIDELINES: IMPROVING COURT PRACTICE IN CHILD ABUSE AND NEGLECT

CASES, National Council of Juvenile and Family Court Judges, 1996. A copy is available in the

Clinic Library.

104

This new process is considerably more productive than the old way of proceeding. Prior to

the model court, the child would be removed. Within 5 days a petition would be filed. The

parent would be served and a hearing would be held within 21 days. If the parent wanted an

attorney, the process could be delayed a week or two further. By the time the court took a

substantive look at the case or the parent requested a temporary custody hearing the child may

have been away from home for over a month.

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The Clinic is notified every three months of the days that we are “on call” for a PPH block.

Pre-hearing Conferences and Preliminary Protective Hearings are held most days at 8:30 and

10:00 am. We will know in advance the dates and times of our PPH hearings. We will not

pre-assigned to a date and time to represent the parents and children for each PPH Block.

The times available for prescheduled blocks are made known to DCS intake workers.

When the child is removed, the worker must request the Attorney General’s Office to

file a dependency petition with the Court within 72 hours. At the same time as the request,

the parent is given the temporary custody notice with the prescheduled time for the PPH

Block. The worker must then telephone a “case intake” to the Dependency Unit of the

Juvenile Court. That phone call puts the court on notice that a petition is coming.

The Dependency Unit will assign the case to a PPH Block and assign the attorneys to

the case. The Dependency Unit will notify the attorneys of their assignments both by phone

and by delivery of a notification form to their mail boxes at the Juvenile Court.

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The notice

form given to the lawyers will contain the name and address of their clients; the client’s

telephone, if any; the names of the other lawyers, parties and case manager. The parents

will not be told the location of the child or the name of any foster parents.

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Prior to the PPH Block, an ex-parte petition will be filed with the Court. The petition

will be faxed to the court even before it is filed to help expedite the process. The petition will

include an application for temporary court orders which must include a ratification of the

removal of the child. Temporary orders include the right to take custody of the child, to

place the child in school and to provide medical care.

Attorneys, including the attorney for the child, are supposed to meet with their

client before the PPH block. Attorneys for children should meet with the placement as well.

Under new law, attorneys for children must ask inform their child-clients of their legal

rights and ask them if they wish to come to court – regardless of age.

In addition, the DCS worker should arrange at least one visit between the parent and

the child after the removal and before the court date. The parents should be encouraged to

come to the PPH and be encouraged to bring supportive family and friends.

know anything at all about the case until we are receive notice confirming the PPH. In a good

week, we will have a week’s notice. Sometimes, we have as little as one day’s notice.

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Each contract attorney (including the Clinic) has an open cubbyhole or box at the courthouse

(on the far west end of the building right in the attorney’s room). The mailboxes are used by the

court to deliver documents and notices. We often use those boxes to communicate with other

counsel as well -- although be mindful that placing a document in an attorney’s courthouse

mailbox may NOT be sufficient for service of process. Check with the attorney to be sure.

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It is standard practice NOT to tell parents where their child has been taken for temporary

placement. This may seem cruel at first -- and in some ways, it is. However, the Court has had

too many experiences with too many irate or intoxicated parents coming to the placement and

creating incidents which are not healthy for the child or the child’s placement. Many foster care

homes or facilities will only take children if they can be insulated from the parents. As a result,

the names and locations of placements are almost NEVER mentioned in front of the parents or

on the court record. The term “foster placement” or “foster parent” is used. Obviously when

there is a relative placement known to a parent the same precautions may not be necessary.

DCS Report to the Court

While all this is going on, the investigating worker will be preparing a written report to

the Court. That report will be the first detailed look at what this case is all about. Attorneys,

clients, and the court rely on this report even though it is preliminary and contains assertions

that may end up looking very different on further investigation. On the next page is the

outline that DCS uses for its preliminary reports. The report is supposed to contain a

history of the case, the reasons the children were removed, information about other possible

placements, and a preliminary assessment of the services that DCS intends to provide.

The report will usually contain an attached narrative and supporting documents.

Since our clients often do not know all the family history and may not know about the

family’s interactions with DCS, all of this information is significant. At the same time, since

this information is both preliminary and filtered through DCS perspective, we should be

cautious about drawing too many long-term conclusions from first impression information.

The following is the format of a DCS report to the Court:

What happens at the Pre-hearing Conference and at the PPH?

The PPH Block is designed to deal with three matters:

1) temporary, short term placement of the child;

2) visitation between parent and child, if the child will not be returned immediately

(and other visitation, if appropriate);

3) services that can be put in place

The conference will also briefly address whether or not paternity has been

established and whether or not the child is an “Indian child” as defined by a federal law

known as the Indian Child Welfare Act or ICWA.

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If a child is potentially an Indian Child,

certain federal standards are invoked that require additional findings as well as notice to the

tribe or tribes to which the child might belong. The Indian Tribe may then have the right to

intervene in the proceedings, to have a say in the appropriateness of any placement, and a

to require a different standard of proof. There is more on ICWA later in the Handbook.

The Pre-hearing Conference

Parties are asked to appear at least 15 minutes in advance to discuss issues.

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Sometimes they meet; sometimes they do not. In any event, we should show up 15 minutes

early.

The Pre-hearing Conference is convened in a room large enough to accommodate all

who are present. A Court facilitator will provide an overview of the PPH and introduce the

participants to each other. If an interpreter is necessary, the facilitator will make sure one is

available. The Judge is not present for the Pre-hearing Conference. The parties are

directed to discuss placement, visitation, and case plan services.

The parties are supposed to be encouraged to have their say in an open dialogue.

110

Sometimes that happens; sometimes the discussion is a little too structured for an active

engagement. A lot depends on the facilitator and the particular attorneys.

The parties will be reminded to try to act in and to consider the best interests of the

child or children. Generally, the parties are directed not to discuss the allegations in the

petition. The allegations are reserved for a later time and place.

After initial introductions, the first thing that will happen is that we, the child’s attorney,

will be asked to describe how the child is doing. That means that we must visit the child

or children in the placement beforehand.

“How is the child doing?” may not seem like much of a question. But in a large

number of cases, the parents have not seen their child since removal and this will be their

108

25 U.S.C.S.§§ 1901 et seq

109

ARS § 8-823(D)

110

Rule 49 RPJC

first opportunity to hear from someone -- other than DCS -- about their kids. Our

reassurance that their kids are ok can be meaningful. Of course, if there are issues, then

we need to raise them.

The second thing that will happen is that someone from an outside agency will have

done an emergency assessment of the child called an “Emergency Response.” The

responders are usually from the Blake Easter Seals Foundation for younger children or, for

older children, from Southern Arizona Mental Health Corporation (SAMHC – sometimes

referred as Sam Heck as if it were a person). Both agencies look for developmental delays,

behavioral health issues, medical issues, and the like. The idea is to get any helpful services

started immediately.

Unfortunately, immediate is a relative term. Because of the way DCS contracts

services with other providers, the standard protocol is to schedule a Child and Family

Team Meeting or CFT at which the particular services will actually be discussed. The CFT

will be scheduled right there in the pre-hearing conference.

The CFT is an out of court meeting of all the relevant individuals – the parents, the

child, the case manager, any mental health professionals, support persons, placements –

who have an interest in the children. At the CFT, the family and professionals will discuss

and try to agree on a plan to make the family whole. The primary purpose of the CFT is to

insure that the family will be engaged in and have input into behavioral health decisions.

At the CFT -- which we should attend -- referrals will be made to other agencies or

people to provide behavioral health or other services. There may be a gap between referral

and actual therapy.

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So if our kid needs services NOW, we need to speak up at the pre-

hearing conference and convey our sense of urgency that services need to be provided

quickly – scheduled CFT or not.

A problem with CFT’s is that parents and case managers likely will attend without

their attorneys. That places us in a Rule 4.2 bind. We cannot communicate with people

who are represented by counsel without counsel’s permission. On the other hand, our

clients need to have a voice at the CFT. So, our protocol is to announce at the Pre-

Hearing conference to all counsel that we will intend to attend all CFTs. Other counsel

can then choose to come or not. If lawyers are not present at the CFT, we will have to be

careful not to direct conversation at represented parties. But we can direct our conversation

to the CFT facilitator who is employed by a behavioral health agency and not represented by

counsel. Whew! That’s awkward. But it is doable.

While we try to attend as many CFT’s as possible, most attorneys do not have the

time to attend with their clients. So our attendance may be off-putting (if that’s a word).

Attorneys – especially the AG – can justifiably feel uncomfortable that we will be present

while their clients are present and unrepresented. We need to respect that ethical rule 4.2

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It might take a week or two to set up a CFT, then a week or so for an initial appointment with a

behavioral health provider, then a week or so to meet with a therapist. Before you know it, a month

has passed and our client’s condition may have deteriorated.

prohibits unauthorized communication with represented persons. Thus, while it may be

redundant, it will never hurt if we remind the AG and other counsel before each CFT that we

will be attending and that we won’t talk to their clients. CFT’s should occur about once a

month.

Sometimes, the behavioral health agency confuses ethical rule 4.2 with a non-

existing rule that “if one attorney attends, they all must attend.” That rule (which does

not exist) has caused some CFT’s to be canceled unless we leave. If that comes up,

contact your supervising attorney. Usually the confusion can be straightened out with a

phone call. More on CFT’s a little later in the Handbook.

The odd thing is that the cultural norm seems to be that children’s attorneys do not

attend CFT’s. And yet, the court rules expect the opposite. Juvenile Court Rule 40.1(F)

states very explicitly:

F. To the extent possible, attorneys and guardians ad litem should attend or provide

input to Department of Child Safety staffings, Foster Care Review Board reviews and

Child and Family Team meetings.

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This just seems to be an issue that we have to keep addressing like hamsters on a

wheel.

In most instances, at the pre-hearing conference, DCS will provide all parties with an

investigatory report containing information in the format above. DCS may also present a

preliminary case map prepared in advance by DCS. In addition, the Agency will make

recommendations for the immediate and long-term placement of the child. The facilitator

should ask everyone present if they know of a relative or kinship placement possibility.

More often than one might think, the family may know of an appropriate and available

placement that is familiar to the child and can facilitate parent child visits or other contact.

After discussing the temporary placement of the child and visitation, the proposed

services are reviewed. The parties discuss and try to identify points of agreement. Some

issues can be negotiated successfully; others will not.

The major sticking point usually concerns visitation between the parent and the child

– and often visitation between the child and other significant people in the child’s life. At the

beginning of a case, DCS will most likely insist that visits be supervised. In most

instances, visits will be supervised by a DCS employee or someone contracted with by

DCS. The main reason for insisting on supervision is the safety of the child -- especially if

there are allegations of substance abuse or some form of physical or sexual abuse. A

secondary reason is to make sure that the parent does not do something inappropriate --

like promise the child that he/she will be home soon when that may not happen or pressure

a child to say certain things to the DCS worker.

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RPJC 40.1

Supervision creates systemic obstacles to visits – mostly around transportation and

supervision resources. What we know from research is that parents are more likely to

accept the help they need when they see their children frequently. What we also know is

that arranging for visits with a child can be costly to the Agency. Supervised visits require

someone to transport the child to and from the DCS office or visit site

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and someone to

supervise the visits. That’s expensive and really stretches the DCS budget.

On the other hand, we know from experience that most children want and need to

see their parents [and their siblings and their relatives and their friends].

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We also

know that parents who see their children more often are more likely to successfully complete

their reunification plan. So it is important that we take an active role in securing as much

visitation as possible for our clients consistent with their wishes.

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We will talk more about

how to accomplish that later in the Handbook.

Preliminary case plan or case map

The case map is a simple chart of the initial plan to reunify the family. At the time of

the PHC, most parents are not functioning at their best. The parents are under the stress of

having their children removed and of having to come to court. And the odds are that this is

all happening while they have untreated mental health issues, substance abuse issues or

both. So, after much debate and experimentation, it was decided to give parents a one-

page overview of what is expected of them to get their children back. Simple can be useful.

The case map give parents a time-table of what they need to do and when. The case

map is not the same as the case plan. The case plan is a much more detailed formal legal

document that will be an individualized plan for family reunification. The case plan will be

introduced about 60 days into a case if the case goes that far. DCS needs that time to get

a better view on the family’s strengths and challenges before developing a formal case plan.

Below, you can see what the case map looks like for substance abusing parents.

There is also a case map where substance abuse is not an issue. The individual tasks are

listed on the left. The time line is colorized so that the parent can get a sense of priorities.

Take a look at the case map before reading on.

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Remember, the parents will, most likely, not be able to go to the child’s foster placement because

the name of the placement is kept a secret. Also, most placements do not have supervision services.

That’s not always the case. Casa de Los Ninos, for example, is a temporary shelter for younger

children. The parents are actually encouraged to visit their children on site at Casa.

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See ARS § 8-513(C) “A child placed in foster care has the right to maintain contact with friends

and other relatives unless the court has determined that contact is not in the child's best interests as

determined pursuant to a court hearing.”

115

If our clients tell us that they do not want to see their parents, that will, obviously, change our

approach.

The case map above is pretty standard. Note how some of the case tasks start at

the beginning and some begin at later stages. At the beginning, we try to keep the tasks

simple: go to visits, test for drugs/alcohol, attend some team meetings and complete an

initial assessment for substance abuse and/or mental health issues. We also require

parents to attend a single session of the Family Drug Court [more on that later] and make

sure that paternity has been established for each child.

Paternity can be very straightforward – e.g., the parents were married at the time of

the birth of the child or there is a prior judicial order of paternity. The latter usually occurs in

conjunction with a child support order. Paternity can be more difficult to determine when

there is more than one possible father or if paternity is unknown. The question of “Who’s

your Daddy?” can be very profound both legally and emotionally for our clients. When

paternity is in doubt and the putative father has been located, DNA testing is available.

It is pretty standard for parents to be required to undergo a psychological evaluation

at the early stages of a proceeding. Psychological evaluations -- commonly referred to as

“psych evals” -- are very useful tools for putting together a case plan that makes some

sense based on the parent’s individual strengths and weaknesses. We used to try and

schedule the evaluations as early as possible. However, we have learned that

psychological evaluations of parents with substance abuse problems can be distorted

unless the parents are substance free. So, the Court may wait a month or so when,

hopefully, they will be sober.

Name:

Court Case #:

Preliminary Protective Hearing Date:

Preliminary

Protective

Hearing

Settlement

Conference

& Disposition

1st

Dependency

Review

2nd

Dependency

Review

Permanency

Hearing

Task:

Month

Maintain Contact with your CPS Case Manager.

Participate in Visitation

Participate in Drug/Alcohol Testing

Participate in Family Team Meetings (Child and Family Team

& Adult Recovery Team Meetings)

Complete a Substance Abuse/Mental Health Assessment

Observe 1 Session of Family Drug Court

Establish Paternity

Complete Psychological Evaluation

(if recommended by CPS consulting psychologist)

Participate in Substance Abuse Treatment

Participate in Parenting Education

Participate in Other Recommended Treatment (may include:

psychiatric evaluation, individual therapy, group therapy, family

therapy, etc.)

Participate in Therapy to Address Domestic Violence Issues

Provide CPS with a Relapse Prevention Plan

(Obtain a guide from your CPS investigator)

Obtain and Maintain Legal Income

Obtain and Maintain Safe and Secure Housing

Preliminary Protective Hearing

When the Pre-Hearing conference is completed, the parties are moved into the

courtroom for the Preliminary Protective Hearing [PPH]. While the parties are walking

over to the courtroom, the Judge will be given a short report by the PHC facilitator. The

Judge can then quickly ratify the points of agreement. The Judge will also have a heads up

on the areas of disagreement.

In Court, after hearing brief argument, the Judge can resolve those differences. The

Judge may also hold temporary custody hearing if the parents request one. A temporary

custody hearing is a parental challenge to the State’s taking custody of the child. There will

be more on the temporary custody hearings later in the Handbook.

A quick note on decorum

Some attorneys dress up for court. Some don’t. Some attorneys stand up

when they speak in the Juvenile Court. Some don’t. We prefer to be more formal.

Wear a suit; stand up when you talk; address the Judge as “Your Honor” -- all of that

good stuff.

You certainly have a constitutional right to free expression which includes the

right to wear flip flops and tie dyed shirts. You also have a job to do – i.e., represent

your client. At some point, too much informality can irritate a Judge or be taken as a

sign of disrespect. Wearing jeans, reclining in the chair, calling the Judge “Dude”

are not likely to be viewed positively.

It is not that Judges are a stuffy bunch of fuddy-duddies. Judges can party,

too. It is that proper decorum adds a level of seriousness to the very serious

business of family protection. Even if you do not care about your image, negative

feelings about your demeanor can and do reflect back on your client. Why take a

chance and hurt your ability to represent your client by projecting a poor image? No

case was ever lost by showing respect for the court. We cannot say the same about

the opposite.

In the PPH, the Judge must make certain findings of fact.

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The first is that it would

be contrary to the welfare of the child to continue living in the home. If the Judge cannot

make that finding then the child should be returned to parental care. The Judge must also

determine if DCS has made an effort to identify and assess whether there is a grandparent

or other relative with a significant relationship to the child who might serve as a

placement.

117

116

ARS §§ 8-824 and 8-829.

117

ARS §8-829 Locating relatives is a priority under the Arizona child protection scheme. If a child

is not placed with a relative within 60 days after the removal, the State has the burden of showing that

such a placement would not be in the child’s best interests. See also ARS §8-845.

The Judge will also deal with a number of routine administrative items. The parents

and child’s attorney (on behalf of the child) will be formally served with a copy of the

petition unless that has been previously accomplished. The parents will fill out a financial

affidavit for the Court to see if they are eligible to continue with court appointed counsel.

The Court may attempt to identify non-custodial parents or to deal with issues of

establishing paternity for children born out of wedlock. The court must identify whether or

not the child is an “Indian Child” pursuant to federal law.

118

If the child is old enough, the

Judge will make sure that someone is responsible for the child’s educational needs.

In addition, the court will give the parents a calendar to keep track of important dates

– including future court dates. It is important, both legally and therapeutically, for the

parents to attend all court hearings and meetings. The court will warn the parents that their

failure to attend hearings could jeopardize their legal status.

The court must also warn the parents that:

“substantially neglecting or wilfully refusing to remedy the circumstances that cause

the child to be in an out-of-home placement, including refusing to participate in

reunification services, is grounds for termination of parental rights to a child.”

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That warning is a pretty negative way to start the process of family reunification. In

fact, that warning can set the stage for permanently removing the children from the family.

You might wonder about the psychology of beginning the process of family reunification with

the warning to a parent that “if you screw up, you may lose your children forever.”

The court will also inform the current placement or a potential placement that the

placement has a right to be heard at all future hearings.

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The right to be heard does not

meant that placement is a legal party who has a right to call witnesses and cross-examine

witnesses. The placement only has the right to make a statement.

Finally, the Court will set further hearings. The court is fairly accommodating of

people’s schedules. Always bring your calendars so that a hearing is not scheduled during

your most difficult final exam or during your honeymoon. [Really, that happened once].

In most instances, nobody will have yet discussed whether or not the allegations in

the petition are true. That is left for the adjudicatory phase of the proceeding. The Court

may set a trial date at the PPH. The court must schedule a settlement conference or a

status hearing to be held within the next 30 days for the express purpose of seeing if there

is common ground to settle the matter without a formal trial. Cases that appear amenable to

a successful mediation may be referred to a facilitated settlement conference with the

court mediator for possible resolution.

121

The dependency will then proceed to the

adjudicatory phase.

118

ARS §8-815

119

ARS§8-824(7) note 99

120

ARS§8-824(10) note 99

121

ARS§8-844

THE COURSE OF A DEPENDENCY

Parents are entitled to a completed trial within 90 days of service of the dependency

petition.

122

For good cause, the trial date can be extended for an additional 30 days. Any

further extensions must be approved by the Arizona Supreme Court.

123

At the trial, DCS

must prove the allegations in the petition and demonstrate that the allegations, if proven,

meet the legal standard for a dependency – i.e., that the child does not have a parent able

and willing to properly care for the child. DCS must prove the allegations by competent

evidence. Hearsay, with certain specialized exceptions, is not admissible.

124

The burden of

proof is by a preponderance of the evidence except in matters involving Indian children

where the burden is by clear and convincing evidence.

125

Each party has the right to call witnesses, offer exhibits, and to cross examine the

witnesses for the other side. Dependency trials follow the general procedures set out under

the Arizona Rules of Civil Procedure. There are specific Juvenile Court rules and statutes,

however, which provide for a more streamlined and informal process than other types of civil

litigation.

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For example, formal discovery is rarely used. The trial is conducted with less

formality than a civil trial in Superior Court.

The Court may make a decision either orally right after the trial or by an in-chambers

minute entry. If the court finds that a dependency has not been established, it will dismiss

the petition and immediately return the child to the parents. If the Court finds that a

dependency has been proven, then the Court will hold a dispositional hearing within 30

days to determine what happens next.

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The dispositional hearing is an evidentiary hearing to determine what to do about the

dependency. The dispositional hearing is usually the point at which the formal case plan is

introduced and adopted by the Judge.

The Court has a number of dispositional alternatives available by statute. These

include options to either place the child back in the home or with relatives or to place the

child in foster care. Relative placement is the preferred placement option. The available

dispositions also include providing remedial services to the child and to the family to

promote reunification.

128

122

ARS §8-842 (C)

123

Id.

124

See Rule 45 Arizona RPJC

125

The Indian Child Welfare Act or ICWA greatly modifies the state’s rights and responsibilities for

Indian children. The standards for removal, for finding a dependency and for terminating parental

rights are different for Indian children. See section on ICWA infra.

126

Rule 6 AZ Rules of Procedure for the Juvenile Court.

127

ARS §8-845.

128

ARS §8-846.

The key decision by the Judge at a disposition hearing is the preliminary case

plan.

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A case plan is the blueprint by which the State hopes to reunify the family. The

case plan should identify problems to be addressed and offer an individualized strategy to

address them. Part of the case plan will involve the parents completing certain tasks such

as a parenting classes or random urinalysis. Part of the case plan may involve the state

supplying therapeutic or medical services or providing supervised visitation.

In theory, if a parent follows and completes the case plan, the child will be returned

and the dependency will be dismissed. On the other hand, failure to complete the case plan

may be proof that returning the child to the home is a risky proposition

130

or may even justify

a termination of parental rights.

131

Thus the case plan takes on enormous importance. It is

critical that the case plan be a well-conceived and intelligent blueprint for each particular

family. One size does not fit all.

Over the next several months, all the parties are expected to work to implement the

goals and tasks of the case plan. Periodically the Court will reevaluate the situation at a

hearing called a dependency review.

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The statute requires that the reviews be held at

least every six months. Under the model court procedures, however, reviews are usually

schedule 90 days apart.

At the dependency reviews, the Court will assess the progress of the case plan. The

court may modify the plan if that is deemed appropriate. If the parents are not making

enough progress on their case plan, the court may take action to impress on the parents the

importance of completing the case plan if they want their children returned home.

If the court feels that the parents may not be able to succeed in resolving their

parental problems, the court may approve a concurrent case plan of severance and

adoption. A concurrent plan allows the State to start the process of planning to terminate

parental rights while continuing to offer remedial services. The idea behind the concurrent

case plan is to plan for the contingency of the parent’s failure enabling the State to find the

child a permanent home without unnecessary delay.

In addition to dependency reviews in the Juvenile Court, whenever a child is in an out

of home placement, an independent organization called the Foster Care Review Board will

conduct periodic hearings to assess the status of the child. The Foster Care Review Board

operates under the auspices of the Arizona Supreme Court. The FCRB conducts reviews

every six months and makes recommendations to the Juvenile Court concerning such

matters as the efforts made by the Agency to implement the case plan and the progress

towards achieving a permanent plan for the child.

133

129

ARS §8-845

130

ARS §8-861

131

ARS §8-533(D)

132

ARS §8-847

133

ARS §8-515.03 see section on Foster Care Review Board below.

Within one year of the child’s removal, the court must hold a hearing to determine a

permanent plan for the child – six months if the child is under 3 years old. The hearing is

called the permanency hearing.

134

The permanency hearing is a formal hearing in a

manner similar to that of the dependency adjudication. Each party has the right to call

witnesses, to introduce documents, and to cross examine witnesses.

At the permanency hearing, the court must first decide if it is safe to return the child to

a parent.

135

The statute requires the court to decide whether “return of the child would not

create a substantial risk of harm to the child's physical, mental, or emotional health or

safety.”

136

The statute specifies that evidence that a parent did not complete the case plan

is proof that “return of the child would create a substantial risk of harm to the child.”

137

If a preponderance of the evidence shows that the child cannot be safely returned,

then the Court must order a final permanent plan for the child. The final plan may be either

severance and adoption, permanent guardianship, or “another permanent planned living

arrangement”

138

(formerly “long term foster care”). If the parents are making substantial

progress but the child may not be safely returned at the time of the permanency hearing, the

Court may grant the State and the parents more time to continue reunification efforts.

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Because of the limited options available to the Court, the Judge may order the

discontinuance of reunification services. Essentially, unless the parent is successful at the

permanency hearing – or at least making substantial progress -- the State may be relieved

of its obligation to make reasonable efforts to reunite the family.

If the Court confirms a plan of severance and adoption, then a motion must be filed

by the state to commence severance within 10 days of the final hearing. If the plan is for

permanent guardianship, the State has 10 days to file that motion as well. Any plan for

long term foster care can be made only if there is a finding of extraordinary circumstances.

Hearings for both must be scheduled within 30 days of the final permanency hearing.

The statutory grounds for a motion for severance and adoption or for a permanent

guardianship must be proven by clear and convincing evidence and be consistent with the

best interests of the child. If those motions are successful, the dependency will terminate

upon the completion of the adoption or the guardianship. Otherwise the dependency will

continue until the child reaches the age of 18.

In Part II of the Handbook, we will explore the steps in a dependency in much greater

detail with special emphasis on the ethical and functional roles of a child’s lawyer.

134

ARS §8-862

135

ARS §8-862

136

ARS §8-861

137

138

ASFA uses the term “another planned permanent living arrangement” instead of “long term

foster care” and/or independent living for children 16 years and older. ASFA requires a showing

of “compelling reasons” for plans that do not involve adoption or permanent guardianship.

139

ARS §8-862

Clinic Procedures for a New PPH

I. What Happens When the Clinic Gets a New PPH?

Under the Juvenile Court Protocol, when the Clinic is assigned a new case, we will

receive a single sheet of paper called the “Intake Sheet”. The Intake Sheet will provide the

name and age of our client as well as the address and phone number of the child’s

placement. The intake sheet will also contain the names of the parents or guardians

140

; the

addresses of the parents, if known; the name of each parent’s attorney; the attorney’s phone

number; and the name and phone number of the intake worker. Below is a sample intake

sheet.

The intake sheet gives us a lot of information – e.g. the name and address of our

client and the placement, the name and phone number of the case manager, whether or not

there are drug allegations or domestic violence allegations. But the intake sheet does not

give us a lot of other information such as why the children were removed, whether or not our

clients have special needs, how are they doing, and what is the back story to all of this.

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For brevity purposes, the term “parents” will include any type of custodial guardians

(grandparents, title 14 guardians, family friends) unless stated otherwise.

We do not usually know much else at this point. We do not routinely receive a copy

of the dependency petition until a few days after we receive the intake sheet.

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So, at the

beginning, we are pretty hungry for information.

Initial Administrative Procedures

We have a few internal protocols that must be followed once we receive the intake

sheet.

1. The very first thing you need to do when you receive a copy of the intake

sheet is to photocopy it and give the original to Gloria Klinicki, our Administrative Assistant.

Gloria needs the original to create a new permanent file. You will need to retain a copy of

the intake sheet so that you can begin to work on the case while Gloria is putting the file

together.

2. Double check the date and time of the PPH Hearing and make sure it is

correctly scheduled on the Clinic’s court calendar and on your personal calendar.

3. If she has not already done so, ask Gloria to change the listing on our

calendar from the generic “PPH” to the name of the case by last name of our client. [The

Juvenile Court lists cases by the last name of the custodial parent -- sometimes that can be

confusing if the last names are different.]

4. In a few days you will also receive a copy of the Petition with a slew of

attachments that include temporary orders issued by the court. As soon as you receive

the petition, make a photocopy for yourself and give the petition to Gloria for inclusion in the

new file.

5. When the file is ready, Gloria will give you a note in your mailbox.

II. OK, So I Have This New Case and An Intake Sheet. Now, what do I do?

At this point, you have the name and age of your client and not much more. When

we receive the intake sheet, we may have no information about why the client was removed

from his or her parents or anything at all about the mental state or physical health of the

child. With little information at hand, it may be helpful to take another look again at steps

one and two of the three-step planning process mentioned earlier in the handbook. “What

do I need to accomplish right now?” and “What is my plan to accomplish it?”

What do I need to accomplish?

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In a private dependency, we might receive a petition right away. Unfortunately, in a private

dependency we might not learn the name of the investigating worker right away. You can’t have

it all.

In order to prepare a plan for yourself, remember the short term goal that you are

facing in approximately five to seven days: you will be attending a Pre-hearing Conference

and Preliminary Protective Hearing. At that conference, you will be asked to participate in

decisions concerning the child’s placement, visitation, the case plan, and possibly whether

or not the dependency will proceed to trial.

What will put you in the best position to respond on behalf of your client at the PPH

Hearing? Information! You need to gather as much information as possible about the

situation and about our client. Here are a few places you can start to get a picture of what is

happening:

A. Telephone the DCS Investigating Worker.

The person in the best position to give you preliminary information is the investigating

worker. The investigating worker is the person who made the initial determination to remove

the child. The investigating worker will also be preparing a report for the court. You are

unlikely to receive a paper copy of the report more than a single day before the PPH

Hearing as the investigation will be on-going until the day of the PPH. But the worker may

already know much of what will be included in the report.

However, the investigator is an employee of DCS and, thus, represented by counsel.

So, because of ethics rule 4.2, we need to contact the Assistant Attorney General assigned

to the case and receive permission to talk to the investigator. Whether or not we receive

permission is really out of our control. Permission may depend on the AG’s availability to

respond to your request or particular concerns of the AG the dictate limited direct contact

with attorneys.

If you are given permission to talk to the investigating worker, the next step is to

telephone or email the worker and inform him or her that the Clinic has been assigned to

represent the child and that you (and your partner) will be the child’s attorney. In addition to

basic factual information, this first phone call will be a good opportunity to discover how DCS

perceives the underlying situation. Was there an emergency? Are the children okay for the

short term? Are there long term concerns?

The investigating worker should also be able to give you an initial assessment of the

condition of our child and describe the nature of the placement. While the investigating

worker can give you a cursory overview of the dependency, be mindful that the information

you have received is from one source only -- that source being the Agency. Remember

that as a child’s lawyer, you have an independent obligation to assess all the facts

before making any decisions about a course of action.

In your telephone conversation with the DCS worker, make sure to let him or her

know the best way to reach you if something comes up that needs our attention. Lastly,

don’t be offended if you don’t get a return phone call. These intake workers are overworked

and under-resourced. Sometimes they just don’t have time. It stinks. But it’s not personal.

B. Contact Other Sources.

The investigating worker may be able to provide you with some names to contact for

more information: e.g., school teachers, neighbors, police officers, relatives. The intake

sheet itself provides you an additional take off point.

A parent’s attorney may have significant information as well as an alternative point

of view to that of the DCS worker. You cannot contact the parents themselves as they are

represented by counsel. But there is nothing to prevent you from seeking information

directly from their lawyers.

Unfortunately, at this early stage, some parent’s attorneys might not have had the

opportunity to meet with their clients. They may be just as new to the case as you.

Nevertheless telephoning the parents’ attorneys may still be worth the effort if only to open

lines of communication for later use.

The child’s placement is an important source of information about the condition of

our child. Whoever is caring for the child will have had a chance to observe our client. Feel

free to contact the placement and ask how the child is doing both emotionally and

physically. Is the child well? Is the child adjusting? Does the child appear to need

anything? Is there anything that the caretaker thinks we should know?

It is highly unusual for a placement to be represented by counsel at the initial stages

of a dependency. So direct contact with the placement is fine. If you find out that the

placement is represented, discuss that with your supervising attorney.

There are four main types of out-of-home placements. The child could be placed in a

temporary group shelter, in a group home, with a foster family or with a relative.

Whatever the nature of the placement, the location of the child is confidential.

The Court has a hard and fast rule not to disclose the name of the placement -- even in

court hearings. The placement will generally be referred to as the “foster home” or the

“group home”. The foster parents will never be identified by name in reports or when they

appear in court but will similarly be referred to as “foster parents” or “foster mother” or “foster

father”.

C. Visit the Client.

The Preliminary contacts noted above will help you formulate an initial picture of the

case and of our client. But the most important source of information about our client

is our client. Your initial visit with the client is extremely important. Depending on the age

and developmental level of our client, your first visit may be a significant information

gathering event. More importantly, your first meeting with your client may set the tone for

the entire course of your lawyer/client relationship.

Notice how we use the term visit the client. Our general philosophy is that we go to

our client not the other way around. First, in most cases, our client is a child who has been

recently separated from home. The last thing he or she needs is to be carted off to one

more sterile professional’s office – even some place as cool as Rountree. It is far easier to

begin a relationship in a more child-friendly place than the College of Law. [We know, that’s

where all your friends are -- but you do go out now and then, don’t you?] And it is helpful to

send a message to our clients that we care enough about them to come to their place.

More significantly, we need to see the child in the context of the child’s life. We need

to observe the placement. No matter how much we may read in reports or hear from other

people, nothing measures up to our own first hand observations -- both of the placement

and of our client in the placement. That does not mean that we cannot take the child away

from the placement -- to a park or a schoolyard or to McDonald’s or Eegee’s – in order to

have some private time. On the contrary, physically getting away from the placement may

help the child open up a little. Nevertheless, we should personally observe the placement if

at all possible.

1. Planning the visit.

Every time you see your child-client, you will be part of a dual assessment. On the

one hand, you will be obtaining valuable information from your client about the facts of the

dependency and about your client’s legal and personal needs. At the same time, your client

will be assessing and developing a relationship with you.

In your very first visit with the child, you need to have realistic and limited

expectations of what you can accomplish. For a very young child, your expectations will be

less that they might be for an older and more interactive child. You may want to consider a

number of things before deciding whether or not you want to make some of these goals a

part of your very first visit with your child-client.

Before undertaking your first visit with the child-client, we strongly suggest that you

review the materials assigned in class on interviewing and questioning children. The ABA

Handbook on Questioning Children: A Linguistic Perspective is an excellent source of

information about the developmental considerations in interviewing a child-client.

142

You

might also want to read the chapters in Binder, Bergman, and Price on active listening and

questioning.

143

Copies of those books are available in the clinic offices and the Law

Library.

In any event, we recommend that you consider the following in assessing what you

wish to accomplish by your first interview (or interviews with your child-client).

2. Establishing a relationship with your child-client.

142

Walker, Anne Graffam and Kenniston, Julie, Handbook On Questioning Children, 3

Edition,

American Bar Association, 2014.

143

Binder, Bergman & Price, Lawyers as Counselors: A Client Centered Approach, West

Publishing, 1991

First impressions mean a lot. Establishing a relationship with the child-client is a

critical phase in your longer term attorney-client relationship with that child. To most kids,

you are another stranger asking uncomfortable questions. So how do you change likely

discomfort into a trusting relationship? There is no easy answer or one size fits all. That

said, here are a couple of approaches to ponder.

1. Establishing a relationship with a child is not always easy--especially for

older children. It is okay to take your time. You don’t have to accomplish

everything in one meeting.

2. It is okay to trust your instincts in the moment. However, you have better

instincts when you plan the first meeting.

3. We suggest two rules regardless of your plan. First, always, always, always, tell

your client the truth. There is nothing that undermines trust between an adult and

a child more than the feeling on the child’s part that the adult is not being straight

up.

That does not mean that you have to answer every question. You don’t.

Sometimes, you can’t because you don’t know the answer. But when you do

give an answer or offer information, be accurate and honest. If you say

something to a client or make any promises, make sure that you carry them out.

Second, listen to the client. There is nothing that turns a child, especially a

teenager, off quicker than the feeling that they are being talked to and that

nobody is listening to them. Take a little extra time to make sure that you listen to

the things that your child-client has to say.

You might want to think about how to put the child at ease. For younger children you

might bring a coloring book and crayons, food, etc -- perhaps even use the digital camera

from the Clinic office. If you use the digital, be mindful of our client’s privacy. You can

certainly take a picture to print and give or show to the child. However, asking if we can

keep a picture can be threatening to some children. There are very few uses that we have

for a picture on the first visit.

For older children, explain your role in a way they can understand. Depending on

the child’s age, you may want to try to explain what an attorney does and why you are there

in the first place. For older children, it is important that you explain the concepts of

confidentiality and privilege to help build some trust between you and your client.

As a child’s lawyer, you are probably the only person in the child protection

system that can listen to a child and not have to report anything that child says. For

a lot of kids, distrust is inherent in the situation. Most everything they have said to an

investigating adult has likely been used to separate them from their families. Knowing that

they can talk to you without fear that everyone else will know what they have said – and

knowing that you care and will listen – is a great first goal. Trust and information can come

over time.

Reminder: privilege only applies where the conversation with your client is

private. More practically, it is difficult for a child to open up to a lawyer if others are in on

the conversation. It is also important that you explain that your job is to advocate their

decisions not your own. So, at some point in each visit, you need to meet with your

client privately.

A private meeting can be disconcerting to some caretakers – especially relatives who

are not familiar with the role of a child’s lawyer. In some circumstances you may need to be

a little assertive about privacy. The placement caretaker may, naturally, want to protect this

child. The child has, after all, been placed there for a reason. And you are just some

stranger coming into their space. Often, the caretakers hover about -- with all good

intentions. It is certainly okay for the caretaker to be close by for a little while as you are

introduced to your client and begin to establish a comfort zone. However, at some point you

may need to explain confidentiality and privilege to the caretaker so that you and your client

can have a private conversation.

Thus, you must be politely firm about meeting privately with your client. Kids will

often tell you things that they won’t say when others are around. Kids might be reluctant to

be critical, might not want to hurt their caretakers feelings or they might be afraid. So, it is

critically important that they be able to talk with you privately at some point in every visit.

Feel free to go slowly. You don’t have to conquer the world in your first meeting

with a child. Even though you may want to leave the first meeting with a clear sense of the

child’s point of view, clear goals, and answers to all your questions, that just may not be

possible in a single meeting in a time crunch. It’s okay to lower expectations. It is far better

to develop an on-going relationship over time than an awkward relationship that never

matures because we tried to accomplish too much at once.

Besides, even in a short visit, you can learn a lot that will help you set the short term

goals for a PPH.

Court rules require us to ask kids if they want to come to court.

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Some do,

some don’t. It’s their choice. And we have to ask irrespective of their age.

145

It’s not their

parents’ choice or their foster family’s choice or the case manager’s choice or our choice.

That choice belongs to the child. The fact of that choice is often hard to explain to a

concerned caretaker. Nevertheless, we are the ones who usually have to explain it.

Since most of our clients can’t get to court by themselves, it is best to ask the

placement to take them. If the placement can’t or won’t, we need to let the DCS worker

know ASAP. It is not our job to transport them.

144

Rule 40.1 Rules of Procedure for the Juvenile Court

145

It probably seems silly to ask a newborn or a one year old if he/she wants to come to court. But

Rule 40.1 does not differentiate by age. So we have to ask.

Sometimes, we have asked our clients who do not want to go to court if they would

like us to take a picture to show to the Judge. The Judges actually appreciate pictures.

Judges don’t always get to see the children they oversee. We rarely request a picture for

the Judge on the first visit. We wait until we have a more solid relationship with the client.

3. Gathering Information.

Certainly a significant part of any visit is gathering as much information as possible to

help you assess the situation. But do not be limited to the verbal facts that you can elicit

from a child. Look around, observe the child’s surroundings. Assess the child’s emotional

maturity, knowledge and capacity, medical needs, and general health. Take away from this

meeting as much as you can of the unspoken pieces of information by observing the child

carefully.

4. Giving Information.

Part of your relationship with the child is to give the information to help your client

start to make some initial decisions. If the child is able to understand, tell him or her about

the dependency proceeding. Answer questions if you can. And if you cannot answer

questions right away, let child-clients know that you will get back to them. And do it!

5. Decision Making.

You and your client may have to make a number of decisions. You may want to

consider whether some of those can be made at the first visit. These decisions may include

whether you are not you are going to act as an attorney if the child lacks capacity. Do you

need to act as a guardian ad litem or request a guardian ad litem? Is the child in safe

circumstances? Does the child attend the PPH and PHC? Can you elicit or otherwise figure

out the child’s preferences for the short term considerations of placement, visitation, or

elements of a case plan.

You do not have to make all decisions at once. Your first visit with the child,

although important, should never be your last visit with the child. Take the time to get to

know your child-client. Visit as frequently as it makes sense to help develop a relationship.

Don’t feel rushed or pressured into having conversations with kids that they are not ready to

have. And talk things over with your clinic partner and your supervising attorney.

6. Assessing Special Needs.

Although we may not be experts in all areas, sometimes we may notice that our child

clients have special needs. For example, does the child look healthy or sickly? Are there

obvious dental problems? Does the child behave in an unusual manner? Is the child

classifies as special education in school?

146

If you note something unusual [or even if you

146

You might hear an acronym that a child has an “I.E.P.” An IEP is an Individual Educational Plan

for a child who has been identified with special learning needs. If you hear the letters “IEP” applied

don’t] you may want to follow up with a few questions to the caretaker to see if he or she has

noticed the same thing or some other area of concern.

If you identify special needs, the Clinic will need to make sure that someone – the

case manager, the foster placement, or a relative placement – is aware of those special

needs and is able to access services for the child. The court has resources that are

available to us to help with special educational needs. There is also a new program called

“Foster-Ed” that is accessible to help with educational issues of children in foster care. See

http://www.foster-ed.org/ourworkaz.html.

7. After the Visit

Once you have completed the visit, write down all of your thoughts. Note taking is

very difficult during a visit with your child-client. It is distracting, and it is often disturbing to

the child that you are taking notes. Instead, immediately after your visit, write down not only

the data and the information you have gathered but your impressions and your thoughts as

well and any follow up that you think may be necessary.

Your thoughts may change over time as will your impressions. The odds are that

your first impressions will be revised over and over throughout your relationship with

this client. Nevertheless it always helps to keep a contemporaneous record of your

thoughts. Those records will be useful as you reassess what is happening with your child-

client over the course of the dependency.

Next, go to Step 3 of the planning process. Ask yourself, “Did I accomplish what I set out

to do? Why or Why not?” In answering those questions, reassess the situation from two

perspectives:

(1) From the lawyer-client perspective, decide if you need to schedule a second visit

or implement some other follow up action.

(2) From your own perspective, take the time to ask yourself, “What did I learn from

this experience?” Remember our Clinic theme. Reflection is where the real learning

takes place.

D. How Do I Determine My Client’s Position?

Perhaps it is appropriate at this point to offer a few more thoughts about determining

your client’s position for the PPH as well as for other future hearings.

1. When your client is capable of articulating a position.

to your child, you will know that the child has been identified by the school district as a special

education child.

Determining your client’s position is not a passive process. You must do more than

just ask your client what he or she wants. An important part of being an effective lawyer is

preparing your clients to make the best decisions for themselves. An effective lawyer for

children actively counsels clients before decisions get made.

There are a number of theories on how to counsel clients to make the best decisions

for themselves.

147

Most of them contain the following common elements:

a. Get to know your client. We repeat this theme often. The only way to make sure

that you accurately determine your client’s real position is to get to know that child in

his or her own context.

148

b. Establish a working relationship which includes a basic trust. For younger

children, it may be that all you can reasonable hope for is to establish a comfort zone.

For older children, you may need to communicate a basic appreciation and

understanding of the principles of confidentiality and loyalty. Whatever you do, trust

implies being honest with your clients and always keeping whatever promises you

make to them.

c. Make sure your client has all the relevant factual information. It is your

obligation as a lawyer to keep them informed. You will be the one who receives

disclosures from DCS and their parents; you know the schedule of events; you

independently investigate.

It is not an easy task to keep your client informed. Passing on information is the kind

of artful task that should be well planned in consultation with your faculty supervisor.

First, you must pass on information in a way that your client can understand. That

often means simplifying data into developmentally appropriate and absorbable pieces.

However, simplifying never means that you paint a false picture. For example, if a mother is

in the hospital for cancer treatment you might say “your mother is sick and in the hospital.”

You would never say; “your mother is on vacation and won’t be home for a while.”

Simplifying does not mean lying. Simplifying means that talking at a level and using

concepts and language that your client can understand.

149

Second, you must be conscious of the emotional impact when your client receives

negative information about his or her family. On the one hand, children often know much

147

See e.g. Binder, Bergman & Price, Lawyers as Counselors: A Client Centered Approach,

West Publishing, 1991; Cochran, DiPippa & Peters, The Counselor-at-law : a Collaborative

Approach to Client Interviewing and Counseling, New York : Matthew Bender, 1999; Shaffer &

Elkins, Legal Interviewing and Counseling in a Nutshell, West Group, 1997

148

For an excellent discussion of the child in context, see chapter 1, Koh Peters, Jean,

Representing Children in Child Protective Proceedings: Ethical and Practical Considerations,

Lexis Law Publishing, 1997.

149

See Walker, Anne Graffam and Kenniston, Julie, Handbook On Questioning Children, 3

Edition, American Bar Association, 2014.

more than adults think they know.

150

Even preverbal children can sense when something is

not right with their parents.

Nevertheless, there are situations where a child’s attorney, in trying to keep the child

client fully informed, is placed in the extremely awkward position of being the bearer of bad

news. Perhaps you have information that the child should know and should have been told

to the child a long time ago by his or her parents. “Jimmy, you are adopted.” Coming from

you, the information could be devastating. Coming from the parents, at an appropriate time

and circumstances, the information might be therapeutic.

Perhaps you have the kind of information that most children ought never to know.

“Your mother had unprotected sex with a HIV infected heroin addict.”

Perhaps, in delivering the news, the trust relationship between attorney and client

may be place in peril:

Lawyer: “Your parents are not doing well. So, you may not be able to go home

soon.”

Child Client: “You are just telling me lies about my family!”

The ABA Standards and Ethical Rule 1.14 give us quite a bit of leeway in

delivering potentially damaging information to our clients.

151

The rule allows us to

consult with experts such as a physician or a client’s therapist. It also allows us to withhold

information under certain circumstances.

Ultimately, the rules place the responsibility on us to make intelligent and thoughtful

decisions about how much and in what manner we keep our clients informed-- balancing the

need to help our clients make good decisions with our desire to avoid harming our own

clients.

d. Identify Alternatives. Part of your role as counselor is to help your client identify

the available alternatives. Identifying alternatives can be a joint effort with your client.

For example, if the issue is placement, your client may be able to name possible

relatives or friends who might be willing and able to help. Through your own research

you can confirm the relative’s willingness and qualifications. Or, by talking with other

family members, you might become aware of other possibilities to present to your

client Working together with your client, you can generate a maximum number of

alternative choices.

150

Bennett, Paul, Secret Reflections: Some Thoughts about Secrets and Court Processes in Child

Protection Matters, 45 Ariz. L. Rev. 713, 729-734. (2003).

151

E.R. 1.14 (b) When the lawyer reasonably believes that the client has diminished capacity, is at

risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in

the client's own interest, the lawyer may take reasonably necessary protective action, including

consulting with individuals or entities that have the ability to take action to protect the client and, in

appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

e. Explore the consequences of each alternative. Identifying choices is important.

But you must also help your client understand the consequences of each choice.

Will living with Aunt Marie mean changing schools? How might moving out of state to

live with Dad impact the case plan to return to Mom?

As attorneys, one of our most significant functions is to help our clients see clearly

the long and short term consequences of their choices. Exploring consequences is not

qualitative. It is geared towards making sure that our clients see clearly what each

alternative means to them. Take the time to explore those consequences in light of your

client’s needs.

Here is a common example. A child has been recently removed from home. You talk

with the child. You realize that the child wants to go home but also wants her parents to get

help. You might successfully argue, in a temporary custody hearing, that state intervention

was precipitous and that there are no grounds for removal. That would get the child home.

But that same decision might make it far less likely that the child’s parents will get

help. With the State of their backs, the parents might revert to old behaviors. The best long

term strategy might be for the child to remain in foster care while her parents get help.

Those are tough conversations.

f. Help the client decide -- offer advice when appropriate. The final stage is

to help our clients decide. Once they are fully informed of the facts, of the law, of the

alternatives and of their consequences, our clients can make more intelligent choices.

At this point, while the choices are theirs to make, it is perfectly appropriate to offer

your advice about the better alternatives.

Both the ethical rules and the ABA Standards not only allow us but encourage us to

offer our clients advice. Advice can be legal advice but it can also be practical or even

moral advice.

152

153

Offering advice to a child can be powerful and should be exercised with caution to

make sure that our advice does not overpower our client’s free choice. As the ABA

Standards comment:

A lawyer must remain aware of the power dynamics inherent in adult/child

relationships. . . On one hand, the lawyer has a duty to ensure that the child

client is given the information necessary to make an informed decision,

152

Ethical Rule 2.1. “In representing a client, a lawyer shall exercise independent professional

judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but

to other considerations such as moral, economic, social and political factors that may be relevant

to the client's situation.”

153

B-4 ABA Standards (First Commentary) “As in any other lawyer/client relationship, the

lawyer may express his or her assessment of the case, the best position for the child to take, and

the reasons underlying such recommendation”

including advice and guidance. On the other hand, the lawyer has a duty not to

overbear the will of the child.

154

As you give advice, assess yourself you make sure that your advice is helpful but not

coercive. For one author’s very thoughtful and thorough discussion of the decision-making

process, see Chapters 3 and 5 of Professor Jean Koh Peters’ book on representing children

in the Clinic library.

155

2. When Your Client is Not Capable of Articulating a Position.

When your client is not capable of articulating a position, you should first attempt to

figure out a position from your client’s conduct and situation. Essentially, you should try to

ask yourself the question, “if my client were able to tell me what he or she is thinking, what

would that be?” If you can answer that question one way or the other from what you know

about your client, then you should try to advocate for that position.

156

If you cannot

determine what your child’s position would be, then you should assume the role of Guardian

Ad Litem and advocate for the client’s best interests consistent with our appointment under

the Pima County contract.

E. Review The Petition, Temporary Orders and the Court Report.

The Petition

As part of PPH procedures, DCS must file and serve a petition alleging the grounds

for the dependency and for the removal of the child.

157

In addition, DCS must prepare a

thorough report for the Court.

158

The two documents serve two different purposes.

The petition serves as the jurisdictional document. Filing a petition invokes the

Court’s power. The petition also provides the basic due process notice to the parents and

the child. The petition must contain the basic allegations of a dependency.

159

In addition,

the petition serves as the State’s application for temporary custody. When DCS removes a

child, removal must be ratified by a Court for the State to retain custody of the child.

160

154

B-4 ABA Standards (First Commentary)

155

Koh Peters, Jean, Representing Children in Child Protective Proceedings: Ethical and

Practical Considerations, Lexis Law Publishing, 1997.

156

See section on “Role of the Child’s Lawyer” in this handbook.

157

ARS § 8-841

158

See Pima County PPH Protocol – Court protocols for various purposes can be found on the

court website at:

http://www.pcjcc.pima.gov/HTML%20files/Judiciary/ProceduresPolicies.html

159

Like any other pleading, the petition must contain a factual statement, with reasonable

particularity, of the acts, conduct or conditions which bring the child within the jurisdiction of

the court. Mere recital of the statutory definition is insufficient. In Pima County Juv. Act. No. J-

46735, 25 Ariz. App. 424, 544 P.2d 298 (1976)

160

ARS § 8-822

Lastly the petition also serves as an ex parte application for temporary custody,

Arizona ethical rules require that the document contain all of the pertinent facts -- including

those adverse to the petitioner’s position.

161

Consequently, the petition often appears to be

a rambling document full of denials and contrary information. For example, a petition might

allege that the parent uses cocaine. The petition might also contain a statement that the

parent denies all drug use.

Unlike a standard civil complaint, therefore, the petition is rarely drafted as a

document with short, individually numbered paragraphs which can be admitted or denied by

the responding party. In the Juvenile Court, none of the responding parties are

required to file an answer or other formal reaction to the petition.

162

We are a no

pleading court. Instead, the parent may orally deny the material allegations in the petition at

the time of the initial court appearance.

163

The petition must be personally served on the parents unless they cannot be located.

Then the petition can be served by certified or registered mail or by publication.

164

Because

of the PPH time constraints, the petition is rarely served before the PPH Hearing. Instead,

the petition is generally served on the parents in Court on the record during the Preliminary

Protective Hearing. The petition will be formally served on you, as well, as the attorney for

the child.

But we already had a copy of the petition

We will usually be given a copy of the petition a few days in advance of the initial

PPH block. However, that delivery does not meet the standards for service of process. For

one thing, the orders contained our copy may not be signed by the Judge. For another,

pages are sometimes left out. Accordingly, the Assistant Attorney General will formally

serve us in court, as the child’s attorney, at the same time the parents are served. A sample

petition is included in the Appendix.

Temporary Orders

When the petition is filed, the Court will also issue temporary orders.

165

These

orders will include granting temporary custody to the state, an order appointing us as

counsel for the children, an order authorizing the state to provide medical and other care,

and an order requiring that the child remain in the State of Arizona unless otherwise

authorized by the Court.

161

ER 3.3 (4)(d) “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material

facts known to the lawyer which will enable the tribunal to make an informed decision, whether

or not the facts are adverse.”

162

Rule 48(D)(4)Arizona Rules of Procedure for the Juvenile Court

163

Id., ARS § 8-843

164

Rules 4.1 and 4.2 AZ Rules of Civil Procedure; Rule 48(D)(4) AZ Rules of Proc. for

Juvenile Court

165

Rule 48 RPJC

Court Report

The report to the court is prepared by the DCS investigating worker.

166

The DCS

report will include all of the information obtained by DCS to date relating to the allegations in

the petition as well as information necessary to make decisions about placement, visitation

and the case plan. The court report will, of necessity, contain hearsay statements as well

as refer to other reports and records. The report will be the clearest statement for us of

DCS’s initial position on most matters. An outline of the information contained in the report

was included in the previous section of the Handbook.

The court report should include a preliminary case map for services to the child and

the family. Unfortunately, because of the shortened time periods of the PPH, the initial case

map is a computer generated product that attempts to be one size fits all. We have to look

beyond the case map to make sure that it suits the immediate needs of our client.

The law requires an “urgent response” assessment for each child to be evaluated for

both physical and mental health concerns. The court report should include copies of those

assessments. If not, usually, the person who makes the mental health assessment will be at

court for the PHC and PPH. So there is an opportunity for follow up. That assessment is

particularly important because, despite all our good work at the first visit, we are not trained

in child development – unless you had that class as a 1L.

Finally, the court report should include a summary of the TDM. That summary will

help you get a handle on where everyone is coming from.

To sum up, in the brief period of time before the PPH Block, we have much work to

do. The following is a short check list of things to do. At the end of this Handbook in

Appendix I, we have included an informational checklist to guide you in your interview with

your client, preparation for the hearing and organization of your file.

Checklist:

__ Visit with the child at the Placement

166

Rule 45 RPJC

__ Contact Placement

__ Visit with Child

__ Review the Petition

__ Review DCS Report

__ Review Proposed Case Map

__ Talk with Intake Worker.

__ Contact Parents’ Attorneys

__ Determine the child’s positions, if any.

III. Planning for the PPH Hearing.

Assuming that you have gathered all the information that you can, it is time to

formulate your plan for the PPH Hearing. By this time, you should have observed at least

one PPH Hearing. Yours will follow the same basic procedure as the one you observed.

Before looking at substantive issues, you should address whether or not your client

wants to come to court. Some children want to be part of the process; others would rather

eat lint. For the younger children, court may be too scary or confusing. For older children

going to court may satisfy a need to know what is going on; to see things for themselves.

Some kids just want to see their parents. A few don’t want to go in case they see their

parents.

Some children may want to go to court only to meet the judge and get a sense of

place. If the latter is the case, we may be able to make arrangements for the child to meet

the Judge on a more informal basis independent of the PPH.

The statutes allow us to bring our clients to the Pre-hearing Conference

167

and to

Preliminary Protective Hearing

168

in the court’s discretion. The practice at Pima County

Juvenile Court is to routinely allow children to attend the Pre-hearing Conference and the

PPH, if nobody files a written objection. The burden is on the person or entity objecting to

raise that issue with the court. DCS will be responsible to arrange transportation for the

child. Nonetheless, if our clients are going to attend, we should notify the Judge and the

other parties as much in advance as possible.

169

Our experience has been that others [not Judges] may get upset if our clients attend

court. Many placements feel protective of the children and want to keep them protected

from a perceived potential “trauma” of a court hearing. Some investigating workers

[especially those who have seen firsthand what the children have been through] feel that our

clients may be too fragile to hear some of the negative things that might be said about their

families. Some have expressed that a child’s presence changes the dynamics of the

courtroom. People won’t feel as free to speak their minds if a child is listening. Still others

argue that children get confused and angry at a court process that is hard to figure out.

167

Rule 49(B), RPJC

168

ARS § 8-824(C)

169

Time constraints sometimes make it impractical to notify all the parties. In this instance, notice is

not a legal requirement. It is a courtesy. Just do the best you can with the time you have.

Going to court can also mean contact with the child’s parents. For some children,

contact with parents may be a benefit; for others seeing parents may be traumatic --

especially if there are allegations of serious abuse. All of these concerns have merit. We

should discuss them with our clients before making a final decision about attendance.

Nevertheless, if a child wants to be in court, we should take every available step to ensure

the child’s participation.

In planning for the PPH Hearing, remember the three basic topics at issue in the Pre-

hearing Conference and the Preliminary Protective Hearing:

A. Initial Placement

B. Visitation

C. Initial Case Plan [services for the child and the family]

A. Initial Placement.

If our client has a preference for short-term placement we should be prepared to

express that preference at the pre-hearing conference. The child might want to return to a

parent. Or the child might want to live with a relative or a friend or what we sometimes refer

to as a kinship placement – someone who is not a blood or marriage relative but someone

whom the child thinks of as family.

It is all the better if we are able to marshal enough information to make a meaningful

argument for the client’s position. Most often the child’s preference is to return to mother or

father. If so, it is important that we understand the parent’s situation so that we can

informatively argue for a return. We should also be prepared to advocate for a back-up plan

if the client’s choice is not feasible or not acceptable to the court. Second choices are often

all that are available.

If our client has no position or no alternative to the parents presents itself, we should

nevertheless insist on sufficient information to make sure that the placement is safe and

healthy from our client’s point of view.

If we suggest a non-parent placement, DCS will usually demand the right to make a

home study of the placement if it is not a licensed foster home. Home studies are done by

an outside agency. Home studies take time. Thus, if we have any suggestions, we should

make them as early as possible -- even before the hearing. Because home studies take

time, we cannot reasonably expect that our placement choice will be instantaneously agreed

to at the Pre-hearing Conference.

“Home studies” are not found in the law. Nor is a home study a legal prerequisite to

placement with an unlicensed family. Home studies are departmental policy – i.e., an

internal mechanism that DCS uses to determine if a home is safe and appropriate for a

child. When the home is that of a licensed foster care provider, DCS assumes that the

home is safe. When someone proposes to place a child with an unlicensed adult – usually a

relative -- DCS’s preferred procedure is to conduct a home study. DCS is unlikely to agree

to a placement without the home study. DCS places its comfort zone over speed.

A home study is an investigation conducted by an outside Agency which contracts

with DCS for that purpose. A home study consists of criminal and child protective

background checks, interviews with the principals, contacts with references and visits to the

home. The home study will recommend whether or not the proposed home is safe and

appropriate. It is all great information to have. The downside is that it takes too much time

– perhaps weeks or months.

There are two quicker alternatives to a home study. They both involve a decision by

the judge that the proposed placement is proper. The first alternative is where the proposed

placement is a grandparent or other close relative. The statutory default is that a relative

placement is deemed appropriate unless DCS demonstrates or the court determines that

such placement “is not in the best interests of the child.”

170

The burden is on DCS to nix the

relative placement.

If the proposed placement is not with a grandparent or close relative, then the court

can also make a determination that the placement is with a “reputable citizen of good moral

character.”

171

If DCS will not agree, we may need to file a written motion to for a

determination that the placement is a reputable citizen of good moral character. A sample

motion for placement is set out at the end of this section.

The following are some questions to consider in any placement for our clients:

1. Will the placement provide a safe, clean and nurturing home for our client?

2. Is our client familiar with the placement? Is that a positive or a negative?

3. If there is more than one child, will the placement require that siblings be

separated or enable them to be together?

4 Will the placement make it harder or easier for our clients to visit with their

parents?

5. Are there other children at the placement? If so, how will that affect our

client?

6. Will our client be able to stay in the same school?

7. Will our client be able to access services from this placement?

8. How long will our client be able to stay at the placement? Will our client be

forced to move at some point?

170

See ARS §§ 8-829, 8-845.

171

ARS § 8-845.

9. Can the placement financially afford to keep this child?

We are sure that more questions will arise with any placement decision. Try and plan

for those questions as much as possible.

CHILD AND FAMILY LAW CLINIC

University of Arizona College of Law

1145 N. Mountain Ave.

Tucson, AZ 85719

State Bar No. 008169

(520) 626-5232

Fax: (520) 626-5233

Attorney for Minors

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

JUVENILE COURT

In the Matter of

M – dob 01/01/00

M – dob 01/01/99

)

No. J1111111

MOTION FOR HEARING ON CHANGE OF

PLACEMENT

Judge Rubin

Pursuant to A.R.S. § 8-845(A)(5), the children, M and M, request this court approve an

immediate change of placement to the home of Ms. J. Ms. J is a reputable person of good moral

character, and it is in the children’s best interests to be placed with her.

The children desire to be placed with Ms. J in her home instead of their current group home.

Criminal and child protective backgrounds check on Ms. J has cleared, and the children want to be in

a small home environment as soon as possible.

Ms. J has demonstrated her interest in being part of this dependency process. As a high

school teacher, Ms. J first met the children over two years ago during their first dependency. She had

interest in taking in the girls during the first dependency, but the children were successfully returned

to their mother. After the children were returned to their mother, Ms. J continued to be a part of their

lives. She sees them at school and speaks to them frequently over the phone. As part of the current

dependency process, Ms. J has attended Child and Family Team (CFT) meetings. Ms. J realizes that

the dependency goal is family reunification, and she does not want to interfere with that goal. She

simply wants to provide more personal care for the children in accordance with their wishes, until

they can be returned. Furthermore, Ms. J will fully comply with DCS placement rules, and she is

willing and able to care for the children.

Ms. J lives with her youngest daughter (age 11) in a four-bedroom home in a quiet, safe

neighborhood. Her oldest daughter, who is 19 years old, frequently visits her home. M and M would

share a room and have much more personal space than they currently do. They get along with Ms. J’s

daughters. Ms. J has a good relationship with her children’s father, but no one else lives in the home

besides Ms. J and her daughter.

Ms. J has worked for almost six years at the P Middle School. Her current line of work

requires that she maintain her clean record. She has no criminal convictions, no history of substance

abuse, and does not consume alcohol or use tobacco. In addition, she has CPR and first aid training.

Her work schedule would allow her to be home whenever the children are not in school. Ms J’s only

major commitments are her family and work. Her youngest daughter attends school while she is

working.

Ms. J is realistic and recognizes that taking care of all the children will be an increased

financial burden. She is willing to obtain certification as a foster parent. However, the certification

process can take time, and the children desire to be placed in a small home environment as soon as

possible. No relatives have ever been identified as potential placements, and at this time, no tribal

foster parents appear to be available. Moreover, the children have difficulty bonding with people.

Above all, they desire to be placed with Ms. J because they have a special relationship with her.

The children therefore ask that this court find that Ms. J is a person of good moral character and

immediately place them with her.

RESPECTFULLY SUBMITTED THIS ____ of May, 20__.

CHILD AND FAMILY LAW CLINIC

By Jason S

Certified Limited Practice Student

Sibling placement

Some families have more than one child. We have had cases with as many as

eleven in one family. [That’s our record!] In many multi-children situations, it becomes

apparent from the first meeting with our clients that siblings are extremely attached to each

other. For many abused or neglected children, their brothers and sisters are the only people

they feel that they can count on.

Sibling attachment and separation are not insignificant issues. It is hard enough to

be removed from one’s parents. To be separated from brothers and sisters can be even

more traumatic.

Unfortunately, as you might imagine, DCS has a very difficult time finding placements

that will keep all brothers and sisters together. The foster care system is very lucky when it

finds a placement that will take a group of siblings. Despite that difficulty, if our clients need

to be together, we should advocate as strongly as possible for a placement that keeps them

together. And if we cannot house them together, we need to advocate for frequent sibling

contact.

172

The law requires DCS to explain why they are separating sibling groups.

173

But there

is no requirement that siblings be kept together.

174

It is kind of like an environmental impact

statement. On a helpful note, this past spring, Arizona passed legislation to allow licensed

foster parents to exceed their licensing limits in order to keep sibling groups together.

175

B. Visitation:

Unless there is a serious abuse allegation or unless our clients insist otherwise,

children who have been removed from their homes need to see their parents. Visits should

be as frequent and as long in duration as possible. The child-parent bond is not easily

strengthened if the children and parents do not have frequent contact.

Research indicates that the more frequently parents are able to have meaningful

contact with their children the more likely parents are to engaged in rehabilitation

services.

176

The reverse is also true. The more frustrated parents become when they can’t

see their kids, the more likely they are to turn to their personal comfort mechanism.

Unfortunately, that comfort food may be self-medication by substance abuse, not ice cream

or Cheetos.

There are two types of child-parent visitation: supervised and unsupervised. In

unsupervised visits, the parent simply takes the child for a specified period of time. No

monitoring is required.

Supervised visitation is necessary when the visiting parent:

1. May be a threat to flee with the child;

2. Is deemed dangerous to the child;

3. Might behave inappropriately with the child.

Depending on the nature and severity of the perceived problems, supervision may be

performed by trained therapists, visitation professionals, other family members or

responsible friends. If the allegation is sexual abuse, the Court may insist on visits

supervised by DCS in the DCS office. If the allegation is alcohol abuse, it may be sufficient

to have visits supervised by a responsible relative who can stop a visit if the parent appears

intoxicated.

172

ARS § 8-845

173

ARS § 8-513(D)

174

ARS § 8-824(G)

175

ARS § 8-514(A)

176

See e.g., Davis, Inger P.; Landsverk, John; Newton, Rae; and Ganger, William, Parental Visiting

and Foster Care Reunification, 18 Children and Youth Services Review 363, 1996.

The pros and cons of supervised visits

The obvious advantage of supervised visits is that supervision ensures the safety of

the child. The presence of the supervisor can guard against abduction or mistreatment or

other inappropriate parental behavior. In addition, visit supervisors can often provide

valuable observations for the court about how the parent relates to the child and can even

provide helpful parenting tips.

On the other hand, the fact that a stranger is present can affect the nature of the visit.

It is hard to be relaxed when you are being scrutinized in a fishbowl. For some parents, the

artificial nature of a supervised visit can negatively affect the visit. Other disadvantages are

logistical. Supervisors must be available. Locations may be limited. Transportation needs

to be arranged for the child or the parent or both.

As a result, the logistical problems generally mean that children will receive fewer

visits of shorter duration when visits are supervised. Fewer, shorter visits usually are not in

a child’s best interests. We know that reunification is difficult when visits are low quality and

infrequent. Nevertheless, when we have reason to be concerned for the health or safety of

our clients, we should carefully consider supervised visits.

Under the PPH procedures, the children have maybe had only one visit before the

Pre-hearing Conference. In addition, the standard initial DCS recommendation offers one

visit per week.

For most children, one visit is way too few if not completely unacceptable. If children

are very young or have told us that they want to see their parents or miss their parents, we

should aggressively assert their right as a child to additional meaningful visits -- even

supervised visits. Accordingly, we should not take obstacles as insurmountable. We

should examine each obstacle and propose alternatives when we can. Separation and

infrequent visits can have a severe negative impact on a child and should be avoided.

Of course, if our clients do not want to see one or both parents or if visitation might be

dangerous or harmful, we should act accordingly to oppose visitation.

C. Services.

At the PPH Hearing, the parents will be presented with a preliminary services plan.

The plan will outline tasks and responsibilities of all the party participants. The preliminary

case plan will set out the services to be provided by DCS and to be accepted by the parents

and the child. The initial case plan is just that -- a temporary plan for activities between the

PPH and any disposition. Nevertheless, the initial case plan has enormous consequences.

The first few months of services can set the tone for the entire dependency. The first

few months will determine if the parents and DCS will have a cooperative working

relationship. Attitudes will be established. Postures will be taken. Opportunities may be

seized or lost in the first few months. Also, the first few months may be the most traumatic

time for the child. Those early months may be the time at which the most appropriate and

productive services and the best parental behaviors are most needed.

In addition, the initial case plan, unlike a long term plan, has immediate litigation

consequences. Information gleaned as a result of these tasks -- such as data from

psychological evaluations or patterns of drug testing -- can be used at a later dependency

trial. Failure to follow the plan may, by itself, be proof of a dependency. For that reason,

parents’ attorneys, especially, may take a very guarded approach to the initial case services.

The initial plans usually contained two main elements: assessment services and

remedial services.

1. Assessment Services

a. Assessment of Parents

We have already discussed visitation. Outside of visitation, the biggest area of

dispute is commonly over the assessment services for the parents. Assessment services

include psychological evaluations [often referred by the diminutive “psych eval”], random

urinalysis [“UA”s or “drops”], specialty evaluations such as alcohol, drug or psycho-sexual

evaluations, and physical examinations.

From the Agency and, more often than not, from the child’s point of view, it is usually

best to complete assessments as early as possible. The sooner we identify parental

problems, the sooner we can address them. Unfortunately, DCS initial case proposals can

be one-size fits all. The same plan is proposed for nearly every family. The proposed array

of services may or may not make sense for a particular family. They may not address an

obvious immediate need. For example, if a parent is a drug addict, may not be a priority

over, say, substance abuse treatment.

From the parents’ point of view, there are two dangers from an early assessment of

the parent. The first is that the assessment device may provide admissible proof of a

dependency where little proof now exists. The assessments may even identify problems of

which the state was not aware, thus broadening the scope of the dependency. The second

danger is that, if the parents are abusing substances, an assessment could be skewed by

the substance abuse itself. Some psychological tests will not produce valid results if a

parent is high. In those situations, DCS may want to wait until the parent is clean to properly

assess the parent’s condition.

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The most commonly used psychological test – the Minnesota Multiphasic Personality Inventory or

MMPI – can actually be an effective screening devise for substance abuse. It does not make much

sense to wait for clean drops before sending the parent to a psychological evaluation if the

psychologist uses the MMPI. See Rouse, Steven V., Butcher, James N., and Miller, Kathryn B.,

Assessment of Substance Abuse in Psychotherapy Clients: The Effectiveness of the MMPI-2

Substance Abuse Scales, 11 Psychological Assessment 101 (1999).

100

Like all other decisions, we should approach assessment services from our client’s

perspective. What will help our client? That will obviously depend on the situation. If

there is an identifiable parental problem, then the assessment services should be directed

towards confirming the problem. If the existence of a problem seems evident but the nature

of the problem is unclear, then more broad based assessments might be in order.

Having a parent assessed will rarely cause a direct problem for a child. After all,

more information rarely hurts. However, some assessments, such as regular random

urinalysis, require such an investment of time and resources for the parent that there may

be some indirect negative consequences. In addition, needless assessments can appear to

the parents to be unnecessary obstacles to reunification and can cause resentment.

For that reason, we should carefully scrutinize a shot-gun approach to initial

assessments of the parents to ensure that the assessments are necessary and appropriate.

b. Assessment of the Child

Because the initial focus is on family reunification, the assessment of the child

sometimes gets lost in the moment. It is our job to make sure that necessary assessments

of our clients should not be overlooked.

State law requires that if a child was removed from home because the child is

suffering serious physical or emotional damage, DCS must immediately take the child to a

medical doctor or psychologist for an examination.

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Sometimes what gets lost in the

shuffle is that our clients may need physical, dental or psychological examinations when no

apparent serious condition can be observed.

Our clients can come from uninsured families and may have not been examined by a

doctor or dentist for years. Our clients can suffer from low level malnutrition, tooth decay,

allergies or a host of other not-so-obvious physical problems. Sometimes our clients have

reacted poorly to the stress of being removed from the home or suffered from mild

depression to begin with and need therapeutic help.

If we even suspect there is a problem, we should plan to forcefully advocate for

appropriate assessment services for our clients.

Two assessment services are used more often than others and are worthy of

mention. They are psychological evaluations and random urinalysis.

(1) Psychological Evaluations

“Psych Evals” can come in two parts. The first consists of standardized

psychological tests. Currently, parents take a rudimentary intelligence test to see if they

have a minimal capacity to work with DCS. They are also given an MMPI personality

178

ARS § 8-821(b)

101

inventory

179

which can be used to red flag psychological disorders. They may be given a

child abuse predictor test. Not all psychologists use these or other written tests. Most do,

however.

The second part of the evaluation consists of a face to face meeting with a

psychologist chosen by DCS. The psychologist then issues a report attempting to diagnose

any psychological conditions and recommending a course of treatment. If the psychologist

believes there may be an organic or medical problem, the psychologist will recommend that

DCS have the parent evaluated by a psychiatrist. Similarly the psychologist may make a

referral for a different specialized diagnosis – neurology, hearing, dental.

Both DCS and the Juvenile Court place great stock in psychological evaluations. In

nearly all circumstances, recommendations for treatment contained in the psychological

evaluation will become part of the permanent case plan.

Parents (and lawyers) have expressed concern that the DCS chosen psychologists

are biased because “they know who pays them”. Certainly some are better than others at

giving accurate diagnoses. Unfortunately the perception of bias is endemic. Most parents

cannot afford to hire their own psychologists. As a result, parent chosen evaluators are very

rare. The DCS ones are all we have available.

Psychological evaluations can be extremely helpful tools if prepared competently and

used appropriately. On the other hand, as the frequent bearers of unhappy news, they can

generate angry and resentful reactions on the part of those who feel they have been

evaluated unfairly.

(2) Random Urinalysis

In nearly 75% of dependencies, there is an allegation of drug or alcohol abuse. The

Juvenile Court takes substance abuse very seriously. There is pretty much a zero

tolerance of drug or alcohol use in a dependency proceeding with a substance abuse

allegation.

The theory is pretty straightforward. Good parenting and substance abuse do not go

hand in hand. More importantly, the Juvenile Court regards any parent who would risk using

illegal drugs or alcohol while under the scrutiny of a pending dependency as having

demonstrated a fundamental lack of understanding of what it takes to be a parent -- that is,

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“The Minnesota Multiphasic Personality is . . . an empirically-based assessment of adult

psychopathology. The MMPI-2 instrument, provided by NCS, is the standard that mental

health professionals use to help measure psychopathology across a broad range of client settings.

The MMPI-2 instrument is used by clinicians in hospitals, clinics, counseling programs, and

private practice to assist with the diagnosis of mental disorders and the selection of an

appropriate treatment method.” Source NCS Pearson advertising literature,

http://www.pearsonclinical.com/psychology/products/100000461/minnesota-multiphasic-

personality-inventory-2-mmpi-2.html

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putting the child first. Such a parent is deemed to have put him or herself first by using

drugs or alcohol when the Court has indicated that there will be a period of zero tolerance.

The way the Court detects drug use is through random urinalysis [also called “UA’s”

or “drops”. The system of random urinalysis works as follows:

1. Each day the parent telephones a specified number.

2. The person or computer answering the phone call will inform the parent

whether or not he or she must drop on that day.

3. The parent must then personally appear at one of the urine collection sites

before it closes that day [usually by 6:30 pm].

4. At the collection site, someone will observe the parent giving a urine sample

and will take the sample.

5. The sample will be sent to laboratory for testing.

6. The results will then be sent to the DCS worker who will disclose it to the

court and to all parties.

If the parent fails to call on a given day or fails to report when directed, the parent will

be deemed to have given a "dirty drop” -- that is, a sample that is positive for the suspected

substance.

If the parent tests positive for a substance, at the very least, the court may order that

future visits be supervised until the parent demonstrates that he or she is clean. More likely,

a positive test while under the microscope of a dependency proceeding indicates a

sufficiently serious problem that treatment will be required.

Parents who test positive often argue that the tests were inaccurate or mistakenly

registered a perfectly legitimate chemical in the urine. Moreover, without an expert witness

and testimony from one of the lab technicians from Kansas, these tests would hardly meet

criteria for admissibility at a dependency trial.

While those arguments are technically possible under some circumstances, our

experience indicates that they will be rejected out of hand by the Juvenile Court judges.

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A parent who tests positive for drugs has pretty much guaranteed that the Court will find a

dependency based on substance abuse regardless of any evidentiary problems.

The upside of random urinalysis is that it is a very effective way to identify users. The

downside is that it poses a tremendous burden on the parents. Transportation may be

180

The Clinic library has literature about the testing procedures commonly used by DCS. The

library also contains a copy of the American Bar Association Judicial Benchbook on Drugs and

Families.

103

difficult as many parents have no automobiles and live or work at a great distance from the

collection sites. Many parents have to take significant time off of work on less than a day’s

notice -- with employers who have little tolerance for missing work -- in order to drop during

the limited hours of collection.

Random urinalysis is not an easy burden for a parent. The Court does not tolerate

most excuses for missed drops.

A sample urinalysis report is included in the Appendix.

2. Other Remedial Services.

Services recommended at the PPH Hearing are just that -- recommendations. While

DCS may believe such services to be necessary, the need for such services has not yet

been adjudicated by the Court nor acknowledged by the parents. Parent may be reluctant

to agree to such services before trial -- especially where accepting the services recognizes

the validity of the petition.

Nonetheless, IF a parent agrees to remedial services, that parent will have a head

start on reunification -- especially where a finding of dependency appears inevitable. Often

parents’ attorneys will candidly advise their clients that, from the known circumstances, the

Court will probably declare a dependency. They may then advise their clients that it is in the

parent’s and the child’s best interests to agree to remedial services from the outset.

Not every parent contests services. Many parents recognize their limitations and

welcome the help from the state. On the other hand, many parents are angry and resentful

at the State’s intrusion into their family. Those parents may offer resistance at all fronts.

Typical remedial services include:

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i. Random Urinalysis

ii. Parenting Classes

ii. Substance Abuse Treatment

iii Individual, Family, and/or Relationship Counseling

iv. Use of a parent aide in the home

v. In-home services such as “Family Builders”

Last, but not least, during the Pre-hearing Conference, the facilitator will ask that a

Child and Family Team meeting (CFT) be scheduled. It is very important that we

attend our clients’ CFT’s.

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3. Other Requirements of the Case Plan.

Although Juvenile Court Rules limit discussion at the Pre-hearing Conference to

placement, visitation and the services aspect of the case plan, the initial case plan will

routinely impose some additional requirements on the parents. These may include

requirements that the parent have a job or other legal source of income

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, have a safe

residence for the child, obtain a car seat, or take steps to establish paternity. Most of these

additional requirements are not controversial and are usually agreed to by the parents.

D. Placement of the Child.

1. Out of Home Placement.

We have already discussed some of the factors associate with placement of our clients. If

our client has a position, we should be prepared to use those factors to advocate effectively.

We should note, however, that there are certain disqualifying circumstances for nearly all

placements. These include:

a. A recent serious criminal history.

b. Credible allegations of substance abuse for anyone living in the home.

c. Lack of physical space for the child.

d. A pending dependency involving the caretaker.

e. A substantiated allegation of abuse or neglect for anyone living in the home.

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See discussions at text surrounding fn. 113 and 234.

182

Some case plans call for the parent to obtain employment. The better practice is for the case

plan to simply state that the parent must obtain a legal source of income. For some parents,

obtaining employment may be difficult or even impossible. They have no work history or job

training. It is a terrible economy. They have no child care. For others, out of home employment

may be unnecessary or adverse to the child’s interests. The call for poor people to work out of

the home when raising young children is a central part of the recent welfare “reforms”. One

might question the trend to make poor persons leave their young children in child care while

encouraging more wealthy parents to stay at home and nurture their children. Regardless where

you stand on this issue, if the parent is seeking employment, it is in our clients’ interests to

make sure there is quality child care available when the parent is working.

105

In addition, we should be aware of any personal or emotional reasons why a parent

might object to our child’s choice of placement. Family feuds and personal slights can

cause some parents to vehemently oppose apparently perfectly appropriate placement

suggestions. Sometimes feelings run deep.

2. Temporary Custody.

We should also be prepared for the parent to argue for return of the child and to

request an immediate temporary custody hearing. Under the statutory scheme, every

parent is entitled to an immediate hearing to determine temporary custody.

In a Temporary Custody hearing, the State has the burden of showing the necessity

of keeping the child in care. The standard of proof is whether the State can present sufficient

evidence that:

“. . . there is probable cause to believe that continued temporary custody is clearly

necessary to prevent abuse or neglect pending the hearing on the dependency petition.”

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A temporary custody hearing follows a very particular order.

a. First the State presents its evidence.

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Because this is a probable cause hearing scheduled on relatively short notice, the

State can rely on certain types of hearsay

185

. The enumerated forms of hearsay are:

(1) The allegations of a verified

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petition.

(2) An Affidavit

187

(3) Sworn testimony

(4) The written reports of experts.

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(5) DCS reports if the caseworker who make the report is present

189

183

ARS § 8-824(F). In making a probable cause finding the Court may refer to the grounds for

removing a child in the first instance. Those are set forth in ARS § 8-821 B:

B. A child may be taken into temporary custody by a peace officer or a child protective

services worker if temporary custody is clearly necessary to protect the child because the child is

either:

1. Suffering or will imminently suffer abuse or neglect.

2. Suffering serious physical or emotional damage that can only be diagnosed by a

medical doctor or psychologist.

184

Rule 51 Arizona RPJC

185

Rule 51 Arizona RPJC

186

A verified document is one in which someone swears under oath that the information

contained in the document is true. All dependency petitions must be verified. ARS § 8-841.

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An affidavit is a written statement sworn to under oath.

188

Rule 45 Arizona RPJC

189

Rule 45 Arizona RPJC

106

(6) Documentary evidence without foundation if foundation will be available at the

dependency hearing.

(7) Out of court statements by persons who will be personally available at trial.

(8) Essential witnesses who cannot be physically present at the hearing can testify by

telephone in the Judge’s discretion.

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b. At the conclusion of the State’s case, the Court may make a finding of whether or

not there is probable cause based on the evidence presented by the State

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c. The parent or guardian who requested the hearing can then submit evidence to

rebut any evidence put on by the State

d. The Court must then make a final ruling about the sufficiency of the evidence to

establish probable cause. If there is not sufficient evidence, the Judge must return the child

to the parent. If there is probable cause, then the child will remain in State custody as a

temporary ward of the court.

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In addition, under Federal Regulations, the Court must make a finding that

"reasonable efforts have been made to prevent the child's removal from home". That

Federal Law finding can be delayed past the TCH for up to 60 days from the date of the

child’s removal.

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IV. Change of Judge.

If, for any reason, a party does not feel comfortable in front of the assigned Judge,

that party can file a “Notice of Change of Judge” with the Clerk of the Court. The notice

must be filed within five days of the party’s receiving notice of that the particular Judge has

been assigned to the case.

194

A party waives the right to a change of judge on request once

the party participates in any contested matter or hearing before the Judge.

195

A party can also petition to change Judges for “cause” -- the cause usually being

personal interest or prejudice on the part of the Judge.

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If the assigned Judge disagrees

with the petition, the court will schedule a hearing before a judge other than the challenged

Judge.

IV. Conduct of the PPH Hearing.

You have formulated a plan for the hearing. What else might you expect? First,

expect the unexpected. While we stress planning and more planning, a good lawyer must

190

Rule 42 Arizona RPJC

191

Rule 51 Arizona RPJC

192

Rule 51 Arizona RPJC

193

45 C.F.R. § 1356.21(b)

194

Rule 2 (B) RPJC

195

Rule 2 (A) RPJC

196

Rule 2 (A) RPJC

107

also be flexible. This is especially true at a hearing like the initial PPH where there has been

no opportunity for formal discovery, where the proceedings are somewhat rushed, and

where you have not had the opportunity to meet many of the people involved.

So be prepared to listen and to adjust your plan based on what you hear. That does

not mean that you should abandon your goals at the first piece of new information. Being

flexible simply means that you should be well enough prepared to make adjustments while

keeping to the basic positions you have worked out.

The Pre-hearing Conference will be very informal. No Judge will be present. There

is no court reporter or tape recording. All the parties and other participants will sit around a

large table. Everyone will sign an attendance sheet.

While no verbatim record is kept, court rules specifically state:

Statements made by the parties and participants in the course of the pre-hearing

conference may be used in future proceedings.

197

As a result of Rule 49, parents’ attorneys may advise their clients to say very little or nothing

at all in the Pre-hearing Conference.

The very first thing that will happen is that you will be asked how the child is doing.

Since you have visited the child – and parents may not have seen the child – your response

can be very reassuring to a parent that the kid is alright. Of course, that is only if the kid is

alright. If there are health or mental health issues, that is the time to voice them. Also, if

true, it is perfectly ok to say that Johnny and Maria miss their parents.

The facilitator will make introductions and will try to get everyone to participate in the

discussion. The facilitator will try to keep people on topic -- that is, placement, visitation,

and services -- and away from interpersonal conflict.

198

So be polite but feel free to speak

your mind or to ask questions within a framework of cooperation.

Immediately after the Pre-hearing conference, the facilitator will send a brief report to

the judge. If all sides reached agreement, then the facilitator will let the judge know what

happened. The parties will proceed to court and the agreements will likely be ratified. If the

sides did not agree on some or all of the issues, the parties can present argument to the

Court in the Preliminary Protective Hearing. Argument will be informal without the court

taking testimony -- except if there is a hearing for Temporary Custody.

The PPH will be more formal. The Judge’s Law Clerk or Bailiff will call us into the

courtroom. The courtroom is set up in a semi-circle facing the Bench. The parents and their

attorneys will sit on the left facing the Judge. The Intake worker and the Attorney General

will sit on the right.

199

And we will sit in the middle.

197

Rule 49 (A) RPJC

198

Rule 49 RPJC

199

If one or more parents are in jail or prison, they will be accompanied by a deputy sheriff. For

security reasons, the deputy may change the seating arrangements.

108

To the side of the Judge will be a court clerk who will take minutes of what happens.

In front of the Judge will be a court reporter. The reporter will make a verbatim record of the

proceeding. It is a really, really good idea to write your name on a several pieces of

paper and to hand one each to the Court Clerk and to the court reporter. That way,

they don’t have to interrupt you to find out how to spell your name.

200

Also, it is not proper

protocol to hand documents or exhibits directly to the Judge. Hand them to the Court Clerk

or to the Bailiff.

When the Judge enters the courtroom, everyone should rise and stay standing until

the Judge tells us to be seated. The Judge will then announce the case. Some Judges will

then state into the record each individual who is present. Others will ask the parties to

announce their presence on the record -- usually beginning with the Attorney General. If

non-parties are in the courtroom, the Judge will want them identified for the record as well --

including other Clinic students who may be observing.

If you are asked to announce your presence, please stand up and say these

three statements:

1. “My name is ________.

2. “I am a “certified limited practice student” appearing on behalf of _______ the

minor child(ren) who is/are [is/are not] present.”

3. “I am under the supervision of _________________, who is present in the

courtroom.” Then point in the direction of your supervising attorney.

The Judge will then address some preliminary issues:

Assignment of counsel for the parents. Up until this point, the parents’ attorneys

have been assigned only on a temporary basis. The parents will have completed a financial

affidavit. The Judge will then determine each parent’s eligibility for an assigned attorney. If

the parents are eligible, the attorneys will be assigned by the Court at the PPH.

201

The parents may be assessed the cost of their attorneys.

202

The cost is set by the

County Board of Supervisors.

203

In Pima County the cost is 1,000.00. The Judge can waive

the assessment or make a partial assessment if the parents are indigent.

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If the Judge

makes the assessment, payments can be made over time. The parents can appeal the

Judge’s decision to a court administrator who is empowered to make adjustments.

200

Is “Bennett” spelled with two “t’s” or just one? You should do this for every hearing in which you

participate. Court personnel, like law professors, take a while to learn all your names.

201

ARS § 8-824 (D); Rule 50 RPJC

202

Rule 38 RPJC

203

Rule 38 RPJC

204

Rule 38 RPJC

109

Service of the petition. The Attorney General will serve a copy of the petition on

the parents and on the child’s attorney in Court if AG has not already done so. The Judge

will check to see if that service has been completed.

Ask the parties if they want an “open or closed hearing.” A new law passed by

the legislature now presumes that all hearings are open to the public. The new law is a

dramatic change from the old law in which hearings were closed to the public unless a

parent requested that the public be allowed.

205

Under the new law, Judges are required to ask about open hearings at the PPH. If

the parties request a closed hearing, the judge can close the hearing to the public for “good

cause shown” if closing the hearing would be in the child’s best interests. The statute

requires that the court examine a number of factors:

1. Whether doing so is in the child's best interests.

2. Whether an open proceeding would endanger the child's physical or emotional

well-being or the safety of any other person.

3. The privacy rights of the child, the child's siblings, parents, guardians and

caregivers and any other person whose privacy rights the court determines

need protection.

4. Whether all parties have agreed to allow the proceeding to be open.

5. If the child is at least twelve years of age and a party to the proceeding, the child's

wishes.

206

As you can imagine, most children would prefer that these proceedings be closed to

the public. Teenagers especially do not want people knowing their business. We also

should be mindful of cases involving very sensitive issues such as sexual abuse. No matter

what, if our client is old enough to understand, we should discuss the pros and cons

of an open or closed hearing with our client and prior to the PPH irrespective of

whether or not the child is planning to attend.

Even if a hearing is open to the public, the information about the child remains

confidential. The public can watch but they cannot disclose. At and open hearing, the

Judge must warn all those who are watching that

1. Attendees are prohibited from disclosing any information that may identify

the child and the child’s siblings, parents, guardians and caregivers, and any other

person whose identity will be disclosed during the proceeding.

2. There are possible consequences of violating an order of the court

including the fact that anyone who violated the warning may be held in contempt.

207

205

ARS § 8-525

206

ARS § 8-525

207

Id.

110

The court may close an open proceeding at any time for good cause shown and after

considering the factors listed above. If a proceeding has been closed, any person may

subsequently request that the court reopen a proceeding or a specific hearing to the public

considering the same factors listed above.

There are several other ministerial issues to be addressed by the court. They may

come at the beginning or during the course of the hearing. They are:

1. Establishing Paternity. The Judge will determine if paternity has been

established. If paternity has not been established by Court order or under

operation of law, the Judge will ask the parties to take the steps necessary to

establish paternity.

208

2. Determining if the Indian Child Welfare Act applies. If so, certain procedures

are invoked.

209

Vacating the Initial Dependency Hearing. If the parents attend the PPH hearing,

there is no need for an initial dependency hearing. If the parents do not show, then the

procedure is for them to be served with the petition. Once service has been completed, the

parents must attend the initial dependency or the matter can be adjudicated by default.

3. Entering a Denial for the Parents. The parents will be deemed to deny the

petition unless they admit to all the allegations. In most PPH’s the parents will

enter a general denial -- even if they eventually intend to admit the petition.

Usually, they have not had sufficient time to meet with their lawyers at the PPH

for everyone to feel comfortable with an admission with its attendant

consequences.

After the preliminary issues are completed, the Court will generally turn to the

Attorney General to see if there were any agreements at the Pre-hearing Conference. They

will be detailed orally. If the agreements are acceptable, the Court will adopt them. The

Court may ask each party if they agree with what the Attorney General says. We should be

prepared to make corrections or additions if appropriate.

If the parties have made any changes to the preliminary case plan, the Judge will go

over each change in court to make sure that all understand and are in agreement.

If the parties disagree on any subject, the Court may make on the spot decisions. Be

prepared to argue your position briefly and concisely.

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Paternity can be established in a number of ways in Arizona. If the parents were married at

the time the child was born, paternity will be presumed as a matter of law. ARS § 25-814 If the

parties were not married, the parties can both sign the birth certificate or can both sign an

affidavit of paternity which can be the basis of a court order. ARS § 25-814 Or the parties can

have a contested proceeding. If the matter is contested, the parties are entitled to genetic marker

blood test which often settles the matter without a trial.

209

See section on Indian Child Welfare at notes 215 et seq.

111

If there is a need for a temporary custody hearing, the court will begin the hearing

then. The TCH may take more than the time allotted. If so, the Judge will continue -- that

is, adjourn -- the hearing to a date and time within the next five working days.

Finally, at the conclusion of the PPH, the Court will perform three administrative other

tasks:

1. Schedule the next event.

Unless a parent admits the allegations at the PPH -- a relatively rare event -- the

court will schedule at least one other hearing with an eye towards resolving the matter

without an adjudication hearing

210

. There is a strong preference in the Juvenile Court for

non-trial resolutions. To that end, Court rules require that the court must schedule a

settlement conference or, if appropriate, a mediation.

211

The settlement conference or

mediations are usually scheduled within the next thirty days. If mediation is chosen, the

court will also schedule a status hearing to inform the court of the outcome of the mediation.

Some cases will inevitably go to trial. Some cases settle early. Usually, the Judge

will not schedule a trial date until after the settlement conference or the mediation and the

parties have a sense of where things are going.

212

Some judges schedule trials at the PPH

before the settlement conference. Scheduling is a matter of judicial style.

In any event, a trial must be held within 90 days of the date the parent was served

with the petition.

213

The Judge can extend the trial date an additional thirty days for good

cause.

214

Any further extensions must get the approval of the Supreme Court.

215

2. Make Admonishments.

The Court will routinely make an “admonishment” to the parents that if they fail to

show up at any future hearing, mediation or settlement conference that the court may

adjudicate their child as dependent and make dispositional orders in their absence.

216

3. Issue an immediate minute entry.

210

An adjudication hearing is a trial on the allegations in the dependency petition.

211

Rule 52 RPJC

212

Rule 53 RPJC

213

Rule 55 RPJC

214

Rule 55 RPJC

215

Rule 55 RPJC

216

ARS § 8-824(6); Rule 50 RPJC “Admonishment’ is the word used in the Pima County

Juvenile Court. It is our opinion that admonishment is an unduly harsh term -- implying

reprimand or chastisement for parents who have not, as yet, been found to have committed any

wrongful acts. It is one more occasion to ponder the power of words. ARS § 8-824 uses the

word “inform”; Rule 50 merely uses the word “advise”.

112

Unlike almost all other hearings, the court will issue an immediate hand written

minute entry

217

that will be available to all parties on the same day as the PPH.

PPH FOR PRIVATE DEPENDENCIES

In Arizona, dependencies need not be brought by the State. They can be initiated

privately.

218

The PPH has developed special procedures for dealing with private

dependencies. The basic model of the Pre-hearing Conference and the PPH remain the

same. However, the roles of the respective parties are somewhat different. So too, are the

behaviors.

Why would anyone bring a private dependency? Who would bring a private

dependency?

Most private dependencies are brought by family members: grandparents, aunts and

uncles, sometimes even non-custodial parents. Sometimes, these folks have suddenly

inherited a child – the mother has been jailed or hospitalized; the child is a runaway; the

child has been abandoned. Many private dependencies are brought because of a sincere

concern for the welfare of a child. The parent may have a drug problem or a psychiatric

disorder. Some private dependencies appear to be brought as part of an on-going family

feud.

Whatever the reason, the basic goal of a dependency remains: safety of the child and

reunification of the family. As you might imagine, reunification may be more difficult in a

private dependency. First, private families may not have access to the array of services and

resources available to the State. Second, family dynamics may make open

acknowledgment of family problems quite difficult. Third, there may be no motivation on the

part of the persons with temporary custody of the child to facilitate reunification.

In most private dependencies, the petitioner is also the placement. The petitioner

probably obtained temporary custody as part of the temporary court orders. Since the filing

of the petition and the application for temporary custody were made ex parte by people to

whom the parents were probably very close, there is a huge potential for anger, resentment

and a feeling of betrayal by the parents.

Role of Child Protection Services in a Private Dependency

217

A minute entry is the Court Clerk’s summary of what happened during a court hearing. The ME

also contains any court orders that resulted from the hearing. It becomes official when signed by the

judge – although unsigned minute entries are enforceable. Rule 47.2 RPJC. Usually a minute entry

may take a week or so before the final version is signed. The PPH uses a contemporaneous hand

written minute entry so that orders can take effect more quickly.

218

ARS § 8-841(A) “Any interested party may file a petition to commence proceedings in the

juvenile court alleging that a child is dependent.”

113

Although not a party at the outset, DCS may still play a major role in the PPH portion

of a private dependency. After the petition has been filed, the court will order DCS to

investigate the allegations. An intake worker will be assigned to prepare a Court report.

The report will provide background information and safety check of the current placement

and will investigate the underlying allegations in the private petition.

If DCS believes that a dependency exists which requires state intervention, it will so

state in the report. DCS will then move the Court to be substituted as the petitioner in the

case. If DCS is substituted, then the case will proceed as a regular dependency proceeding

with DCS acting as the petitioner. DCS can proceed on the allegations in the original

petition or may choose to file a new petition.

If DCS chooses not to be substituted, then the intake worker will file the court report --

giving a copy to all parties. The intake worker will probably attend the PPH Hearing but as a

witness, not as a party unless DCS is leaning towards being substituted.

If the Court believes that further investigation is warranted or further information is

needed, the Judge may order DCS to continue its investigation and/or to have its worker

present at the next hearing. It is very important to note that, if DCS chooses not to be

substituted, DCS may still be able to provide voluntary services to the family. As the child’s

attorney, you may want to contact the DCS intake worker before the PPH block to see what

services might be available to the family.

Even if DCS decides not to be substituted, the Juvenile Court can nevertheless order

DCS to be substituted as petitioner if the Court believes that the circumstances warrant DCS

case management. We should consider that option carefully even if DCS does not want to

join in.

Special Considerations for the Child’s Attorney

A child’s attorney needs to approach matters from a slightly different point of view in a

private dependency. Consider the following:

1. In a DCS case, we must obtain permission of the attorney general before discussing any

matter other than scheduling a visit with our client. In most private petitions, the petitioner

does not have a lawyer. Under the dependency statutes only the parents and children are

entitled to appointed counsel.

219

So we have a ready source of information -- the person

who brought the proceeding.

2. Unfortunately, the lack of a lawyer may put an extra burden on the child’s attorney.

a. If a petitioner does not have a lawyer, the petitioner may naturally turn to the

child’s attorney for advice. We must be very careful to remind the petitioner that the

Clinic is the independent attorney for the child -- not the attorney for the petitioner.

219

ARS § 8-841

114

Even if our position is in 100% agreement with the petitioner’s position, we must be

careful to make our role explicit.

b. A pro per

220

petitioner may not have the wherewithal to properly present the

petition. If our positions are in agreement, we may have to take responsibility for

presenting the evidence in the case. This will be especially important if our client’s

position is to remain in placement care and the parent requests a temporary custody

hearing. It may be up to us to make the initial probable cause showing.

3. When we visit our client, there is a greater need for privacy as the placement is likely one

of the litigants.

4. We need to be mindful of stronger than usual feelings on the part of the litigants. It is

one thing for the State to intervene in a family. It is quite another for family members to

initiate their own internecine dispute. The Pre-hearing conference needs to be handled with

those emotions in mind. It may be harder to get down to business of reunification.

5. It may be much harder for our clients to make choices. As in #4 above, it is one thing for

a child to choose between his or her parents and foster care. It is quite another to have to

choose among people whom the child loves. Asking a child to choose between parents or

between a parent and a grandparent is not an easy thing.

6. It will be much harder for our client to manage this adversarial proceeding. The conflict

between the petitioner and the parents will be much more intense for our client than a DCS

dependency. The client will be observing conflict between loved ones as opposed to conflict

between a loved one and a bureaucracy. Observing loved ones in conflict can be terribly

damaging to children. We may need to be a little more protective of our client without

overbearing the client’s right to participate fully.

7. Because of personal conflicts or conflict with the ultimate goal, the petitioner and parent

may not be able to work together for reunification.

8. Because of cost constraints, not all needed services will be affordable by the private

parties.

9. Visitation -- especially supervised visitation -- may require more careful management of

transportation, supervision, and case management resources.

Because of all of the above concerns, we should carefully consider whether or not we

want to request that DCS be ordered to substitute as petitioner regardless of the Agency’s

position. We should make sure that we know if DCS can and will provide voluntary services

if the Agency is not substituted. Finally, we must take a much more active role in developing

and implementing the case plan.

220

Pro per is termed used in the Juvenile Court to refer to a person representing him or herself.

Other jurisdictions may use the term “pro se.”

115

INDIAN CHILD WELFARE ACT

In 1978, Congress passed the Indian Child Welfare Act (ICWA) establishing new

policies and practices for states to follow in dependency, foster care and adoption

proceedings involving Indian children.

221

The Act was needed, Congress said, because in the states’ exercise of their

“recognized jurisdiction” over child custody issues they had failed to accommodate “the

essential tribal relations of Indian people and the cultural and social standards prevailing in

Indian communities and families”.

222

The Act included a somewhat muted mea culpa accepting Congressional

responsibility

Congress, through statutes, treaties, and the general course of dealing with Indian tribes,

has assumed the responsibility for the protection and preservation of Indian tribes and their

resources. [and] there is no resource that is more vital to the continued existence and

integrity of Indian tribes than their children

223

but acknowledged damage only in the passive voice

[A]n alarmingly high percentage of Indian families are broken up by the removal, often

unwarranted, of their children from them by nontribal public and private agencies and that an

alarmingly high percentage of such children are placed in non-Indian foster and adoptive

homes and institutions.

224

The Act articulated national policy toward preservation of Indian tradition, culture and

values, at least insofar as Indian child custody issues are concerned.

The Congress hereby declares that it is the policy of this Nation to protect the

best interests of Indian children and to promote the stability and security of

Indian tribes and families by the establishment of minimum Federal standards

for the removal of Indian children from their families and the placement of such

children in foster or adoptive homes which will reflect the unique values of

Indian culture, and by providing for assistance to Indian tribes in the operation

of child and family service programs.

225

Who is Covered?

The Act requires a course of action with Indian children markedly different from that

with non-Indians and it is different from the start. The form used by the State of Arizona to

221

25 U.S.C.S. §§ 1901 et seq.

222

25 U.S.C.S. § 1901 (5)

223

§ 1901 (2), (3)

224

§ 1901 (4)

225

25 U.S.C.S. § 1902

116

initiate a dependency petition now has a box to check indicating whether the child at issue is

or is not an Indian child. So the first step of every proceeding is to determine if you are

dealing with an Indian child and whether ICWA’s regulations are to be followed.

After the most recent “Baby Veronica” decision by the U.S. Supreme Court eligibility

under the Indian Child Welfare Act may be in some doubt if the Indian roots are through a

non-custodial father. We will have to see how that plays out over time.

226

An Indian child is “any unmarried person who is under age eighteen and is either (a)

a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the

biological child of a member of an Indian tribe”

227

Ultimate determination of tribal eligibility

is made by a tribe itself, not by the court nor the family, and the eligibility rules can vary

widely from tribe to tribe. ICWA applies even if the child is not being removed from an Indian

home. As long as the child is an Indian child, ICWA is in force.

228

To begin gathering the information, someone must ask the child, parent or

caseworker whether ICWA might apply because the child has a parent with Indian heritage.

Of course, no affirmative or negative assumptions may be made based on appearance or

domicile. The court must follow through on any possibility.

If it has not already taken place, once a child has been identified as a possible Indian

child, the tribe or tribes must be notified immediately that a dependency or other petition has

been filed and that the tribe has a right to intervene.

229

The tribe can then decide two

things:

1. Is this child an eligible Indian child?

2. Does the tribe wish to participate in the dependency?

The Proceeding and Participants

If the child is an Indian child, the next step is to determine whether the state or tribal

court will hear the petition. The process should begin in the Juvenile Court with a fair

presumption that the Juvenile Court will end up hearing a case involving an Indian child just

as it does all others.

ICWA adds two potential parties to any Juvenile Court proceeding involving an Indian Child.

The Act allows the tribe itself to intervene at any time

230

and it permits the intervention of an

“Indian custodian”

231

. An Indian Custodian is “any Indian person who has legal custody of

an Indian child under tribal law or custom or under State law or to whom temporary physical

226

Adoptive Couple V. Baby Girl, 398 S. C. 625, 731 S. E. 2d 550,

227

25 U.S.C.S. § 1903(4)

228

Michael J., Jr. v. Michael J., Sr., 2000 WL 873182 Ariz.App. Div. 1, July 3, 2000.

229

25 U.S.C.S. § 1911(a)

230

25 U.S.C.S. § 1911(c)

231

25 U.S.C.S. § 1911(c)

117

care, custody, and control has been transferred by the parent of such child.”

232

(emphasis

added)

Both of these parties may also request transfer from state to tribal court. Tribal courts can

assert their exclusive jurisdiction when the child lives in or is domiciled in the reservation or

is already a ward of the tribe. The tribal court can also accept jurisdiction if either parent

makes such a request and the other parent does not object.

233

Only “in the absence of good cause to the contrary” is there an objection to transfer to

a tribal court.

234

While no statistics are readily available, many observers believe that most

cases stay in the state juvenile court with the tribe acting as a party to the proceedings, if it

is involved at all. But it is important to remember that the tribe or the Indian guardian is able

to intervene at any time and have the case transferred to a tribal court even if a state court

has already begun to hear the case.

235

Burdens of Showing and of Proof

The Act imposes a unique burden on the state to attempt family reconciliation even

before the first dependency hearing. The court must be satisfied that the state has made

active efforts to provide remedial services and rehabilitative programs designed to prevent

the breakup of the Indian family and that these efforts have proved unsuccessful.”

236

such strict requirement is in place for non-Indian dependency hearings in which only require

reasonable efforts at the outset to maintain the family structure

All dependency petitions are initiated because of concern about circumstances in

which there is likelihood of serious emotional or physical damage to the child or children.

These concerns must be proven to the court, not just alleged. ICWA establishes burdens of

proof one notch higher at each stage of a proceeding involving Indian children. ICWA

requires “clear and convincing” evidence instead of “preponderance of the evidence” at the

dependency phase. ICWA requires proof “beyond a reasonable doubt” instead of “clear and

convincing evidence” for final parental severance.

237

Placement

Finally, at each stage of the proceeding, if the court orders foster care or adoption,

there are mandated placement preferences that must be followed. For foster care or pre-

adoptive placement, ICWA mandates preferences order for:

i) a member of the Indian child's extended family;

ii) a foster home licensed, approved, or specified by the Indian child's tribe;

232

25 U.S.C.S. § 1903(6)

233

25 U.S.C.S. § 1911(a)

234

Id.

235

25 U.S.C.S. § 1911(b)

236

25 U.S.C.S. § 1911(d)

237

25 U.S.C.S. §§ 1911(e)(f)

118

iii) an Indian foster home licensed or approved by an authorized non-Indian licensing

authority; or

iv) a suitable institution for children approved by an Indian tribe or operated by an Indian

organization. Tribes may establish different preferences in individual circumstances if

they wish.

238

In adoption the Act has fewer choices. The Act specifies placement preferences for:

i) a member of the child's extended family;

ii) other members of the Indian child's tribe; or

iii) other Indian families.

239

Summary

ICWA adds a level of potential complexity to a system that may already seem

excessively burdened with opposing lawyers, parties with different interests, and sometimes

widely differing perspectives on a single set of facts. But one must remember the objectives

of ICWA. ICWA merely recognizes some added characteristics of Indian culture that can

be overlooked by non-Indian courts and raises those characteristics to a level of importance

they did not historically have. ICWA attempts first, to save families, and then to save the

culture if the family cannot be saved.

238

25 U.S.C.S. § 1915(b)

239

25 U.S.C.S. § 1915(a)

119

THE CHILD AND FAMILY TEAM MEETING

Child and Family Team [CFT] meetings are informal but very significant meetings

designed to put appropriate mental health services in place for the family. CFT’s were

the outgrowth of a long and expensive Federal lawsuit that was brought in Arizona to

address the growing problem of professionals making significant behavioral health

decisions for families in a grossly paternalistic way and without any regard for the

opinions of the members of the family.

In the Matter of JK,

240

the lawsuit was settled with the State but only after the

State agreed to certain “JK Principles.” The most current version of JK principles and

procedures is set out in a protocol developed by the Arizona Division of Behavioral

Health Services. Below are some interesting excerpts of what is supposed to be:

240

CIV 91-261 AZ District Court (unreported)

120

121

As you can see, there are a number of goals and procedures for CFT’s. Part of

our job is to ensure that others are mindful of these goals. By actively attending CFT’s,

we can ensure that the child’s voice is heard in the development of any service plans.

We cannot stress enough how important the CFT has become. The choice of

services for a family will have a profound impact on the end result. Decisions will be

made at CFT’s that are more than just basic therapy. They can include all types of

visitation decisions, parenting plans, placement and even long term goals such as

reunification or long term foster care.

As discussed previously, the other parties are not used to children’s attorneys

showing up at CFT’s. So there may be some resistance.

241

But the CFT is often one of

the most critical events in a child welfare proceeding. So we need to insist that we be

able to attend and actively participate.

241

See text surrounding note 111.

122

THE SETTLEMENT CONFERENCE

Given the Preliminary Protective Hearing’s limited purposes, it is fairly unusual

for a dependency to be adjudicated the first time people appear in court.

242

Occasionally, but not very often, one or both parents may admit the allegations in the

petition at the PPH. If that happens, the children will be adjudicated dependent and the

court will hold a dependency disposition hearing. On extremely rare occasions, the

State might dismiss the petition outright if new facts come to light.

However, in most instances, parents will -- at least initially -- deny the allegations

in the petition and ask that the matter be scheduled for a dependency adjudication

hearing. The dependency adjudication is a fact finding trial concerning the allegations

in the dependency petition.

Before hearing evidence any dependency adjudication, the Court must hold a

settlement conference or send the parties to mediation. The purpose of the

settlement conference is to see if the parties can agree on a mutually acceptable

resolution of the petition and save the court and the parties from an adversarial trial.

The general theory is that resolution by agreement is more user-friendly and will, in the

long run, have a better chance of success in reuniting the family.

243

The Juvenile Court will schedule the settlement conference about 30 days after

the Preliminary Planning Hearing. The fact finding hearing will usually take place

approximately 30 to 60 days later.

244

Interestingly, it often does not take much of a compromise to settle a dependency

proceeding. Many parents instinctively recognize that their family needs help but may

disagree with how the family circumstances are described in the petition. Some parents

may simply need to “save face”. Many parents are willing to accept the allegations in

the petition if they can add some comment of their own -- sort of “guilty with an

explanation.”

We should not underestimate the power of words. The way an allegation is

phrased can have a profound impact on how the allegation is received. Words are

powerful. They can evoke strong emotional reactions.

242

See section on the Preliminary Protective Hearing, supra

243

A mediation has essentially the same end purpose. However, mediation uses a different

approach. A settlement conference is more of a traditional negotiation supervised by a judge

or court official. A mediation is a more in-depth attempt to help litigants understand each

other before attempting a resolution.

244

The adjudication hearing must be held within 90 days from the date the parent was

served with the petition. Rule 55 RPJC. More often than not, that is 90 days from the PPH

as the custom is to formally serve parents at the PPH.

123

The upside of the power of words is that a slight change of language can

sometimes make all the difference to a litigant. A parent may find language that has

been gently tweaked to be perfectly acceptable. Even if the change in wording would

have little legal impact, the change could have an important emotional distinction for the

parent. Of course, sometimes the parties have more fundamental differences making

settlement a more difficult process.

A settlement conference is a judicially aided discussion among the parties but

without a stenographic record. Presumably, in the absence of a record, the parties

may feel freer to openly discuss disputed issues. Most settlement conferences are

held before a judicial official other than the judge who will hear the case. Having a

facilitator other than the sitting judge also allows the parties the freedom to make ex

parte statements that would be prohibited if made before the trier of fact.

245

In some cases, the settlement conference is the first opportunity for a parent to

personally speak to an official about the allegations in the petition. Up to this point, the

lawyers have done all the talking in Court. The mere fact that the parent can “say

something” to a Judge or to a facilitator who actually listens can be a significantly

cathartic event. Having a chance to speak can sometimes allow the parent to admit the

petition and “move on” to the work of reunification.

The child’s attorney can -- depending on the child-client’s position -- help

facilitate voluntary compromise among the adult parties. A child’s attorney can often

play a significant role in brokering a settlement if that serves the child client’s interests.

A suggestion coming from the child’s attorney may be more acceptable than the same

suggestion coming from DCS or the parents. If you feel that settlement is in your

client’s interest, there is nothing wrong with initiating settlement discussions among the

parties even before the settlement conference.

Often the attorneys for the state and for the parents get together prior to the

settlement conference to try to reach a compromise. Nearly as often, the parties forget

to include the children’s attorneys in that discussion. While children’s attorneys have

little control over the ultimate outcome, our input is necessary -- perhaps even

mandatory -- since any resolution will have a direct impact on our clients. We need to

stay on top of the situation to make sure that we are included in the discussion loop.

There are two kinds of settlement conferences: facilitated and non-facilitated.

The easy one is the latter. At a non-facilitated settlement conference, the parties talk

beforehand the conference and see if they can work out an agreement. The matter is

then presented to the Judge for ratification. If the parties cannot agree, then the matter

is set for trial or for a facilitated settlement conference. The judge gets involved only if

the parties need a little nudge and/or to ratify the agreement.

245

Rule 53 RPJC

124

A facilitated settlement conference is a little more interactive. In the Pima County

Juvenile Court, the conference is set before one of the court mediators. Sometimes,

not very often, it is set before a judge other than the assigned judge. The court

mediators are quite skillful at helping people move beyond their visceral reactions to

their situation and focus on the real decisions that they face. The facilitators can often

provide litigants with their first, and perhaps only, effective opportunity to explain

themselves to someone in authority. That can be very therapeutic.

Mediation is very much like Las Vegas – what happens in mediation stays in

mediation. Statements made in mediation are privileged and cannot be introduced by

any party in any court hearing.

246

Thus a facilitated settlement conference – while not a

formal mediation -- allows people to speak frankly without legal repercussions. The

mediators are also skilled at explaining the process to parents in a non-judgmental way.

What is our role in a facilitated settlement conference? Most of the time, it is not

much. The decision whether or not to go to trial belongs to the parents and to the State.

We can’t force trial if the parents and State wish to settle. However, we can be very

helpful in suggesting possible compromises and in presenting the child’s point of view

for all to hear. Sometimes a very brief: “Your child loves you and needs you. But

needs you not to be drinking” may be all a parent needs to be able to move forward.

Confidential Settlement Memorandum

Rule 53 of the Arizona Rules for Juvenile Court Procedure governs the facilitated

settlement conference. At least five days before the conference, each party submits an

ex parte memorandum to the mediator or to the settlement conference judge. The

memorandum should include the following:

1. A general description of the issues to be litigated and the position of each

party with respect to each issue;

2. A general description of the evidence to be presented by each party;

3. A summary of any attempts to settle the matter;

4. An assessment by each party of the anticipated result if the matter did

proceed to trial; and

5. Any other information a party believes would be helpful to the settlement

process, including acceptable settlement proposals.

247

246

ARS § 12-2238

247

Rule 53 RPJC

125

The format of a settlement conference is pretty straightforward. At least 24

hours in advance of the conference, each side is required to submit to the mediator a

short [usually one or two pages] confidential settlement memorandum. The

memorandum should outline the party’s position and parameters of acceptable

settlement. The memo is submitted directly to the mediator, and, unlike any other court

document, the settlement memorandum is submitted as a sanctioned ex-parte

communication.

The ex parte confidential memorandum is to assist the facilitator in determining

where the parties are coming from without requiring the parties to divulge their

negotiation strategy to the other side. The facilitator can use the confidential

memoranda to see if there is some common ground that exists in fact but has eluded

the parties.

From the child’s perspective, the confidential memorandum is a not only an

opportunity to express the child’s legal position, it is also an opportunity offer the

facilitator some insight into the child’s thinking without having to disclose the child’s

thoughts to the parents. In any other court proceeding, all the parties are entitled to a

copy of any communication between a litigant and the court. There are no private

communications.

Some children would rather keep silent and tell the facilitator nothing than have

to disclose his or her opinion to a parent. A settlement memorandum can be a rare

opportunity to “speak” privately to a person with authority without having to let the rest of

the world know.

248

Thus, it would not be inappropriate to use the settlement memorandum to address the

child’s ambivalence about her parents or the child’s systemic confusion or to offer a

comment, from the child’s perspective, about placement issues, services issues or other

needs.

On the other hand, it can often be in our client’s interests to be open about our

settlement position. This openness can help the parents’ and state’s attorneys assess

their respective positions and perhaps facilitate a settlement helpful to our client. In

those instances, and with our client’s permission, we can send copies of our confidential

memoranda to the other parties as well as to the court.

Thus, in addition to the requirements of Rule 53, the settlement memorandum

should state our client’s position, if any, on the following:

1. Any changes in the allegations that would be acceptable to our client.

2. Any additions to the allegations that our client wishes to be included.

248

Depending on the Judge, there are limited occasions where a child can speak directly to a

Judge privately in chambers. Most Judges require the consent of all the parties. Many

Judges will not hold in chamber interviews under any circumstances.

126

3. Dispositional recommendations, if appropriate.

The settlement memorandum should also briefly state the rationale behind the

position we advocate. Below is a sample Confidential Settlement Memorandum:

CHILD AND FAMILY LAW CLINIC

University of Arizona College of law

1145 N. Mountain Ave.

Tucson, AZ 85719

State Bar No. 008169

(520) 626-5232

Fax: (520) 626-5233

Attorney for Minors

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

JUVENILE COURT

In the Matter of

Child P – dob 11/21/91

Child E – dob 8/12/02

Child I – dob 5/30/04

Child C – dob 7/28/06

)

No. J111111

CONFIDENTIAL SETTLEMENT

MEMORANDUM

The children, by and through their counsel, submit this confidential settlement

memorandum on the following matters:

I. UNCONTESTED MATTERS

127

a. At the time DCS removed the children from the home, the home was

unsafe and the parents were abusing substances.

II. CONTESTED MATTERS

a. Whether or not a dependency exists.

b. Whether or not the parents have substance abuse problems.

c. Whether or not there is domestic violence in the parents’ home.

d. Whether or not the parent have stable housing or finances.

e. Whether or not the parents have exposed all of the children to unsafe and

unhealthy living conditions.

III. POSITION ON CONTESTED MATTERS

The children want to go home. However, they recognize that their parents need help

and that a dependency may be the best way to get that help. The parents need to

address their substance abuse and domestic violence problems. The parents also need

to secure stable housing and finances so that they do not expose their children to

unsafe and unhealthy living conditions.

IV. EVIDENCE TO BE PRESENTED

The children do not have independent evidence to present. We expect DCS to present

evidence consistent with the preliminary protective hearing report including drug tests,

photos, and the testimony of the investigating worker. We expect the worker to testify

that the house was unsafe and unhealthy and that the parents admitted to using illegal

substances.

V. ATTEMPTS AT SETTLEMENT

The parties have thus far made no formal attempts to settle the issue of dependency.

128

VI. ANTICIPATED RESULT AT TRIAL

If the matter proceeds to trial, the court will likely find a dependency exists.

VII. OTHER HELPFUL INFORMATION

The children wish to return to their parents. They also believe that their parents

need help. They were all affected greatly by the domestic violence. The oldest child

recognizes that a dependency may be the best way to get his parents the help that they

need. The younger children do not understand the process sufficiently but want their

parents to get better so they can go home. On behalf of the children, any settlement

has to recognize the need for domestic violence treatment.

RESPECTFULLY SUBMITTED THIS ____ of November, 20__.

CHILD AND FAMILY LAW CLINIC

By Jason S

Certified Limited Practice Student

Attorneys for Minors

___________________________

Paul Bennett

Supervising Attorney

What to Expect at a Facilitated Settlement Conference

The facilitated settlement conference, like all other court hearings, is an event at

which our child clients are entitled to attend. When discussing possible attendance

with our client, it may be a good idea to ask our client to consider whether his or her

attendance will help or will stifle his or her parent’s ability to make a compromise.

Theoretically, all settlement possibilities are on the table -- including dismissal of

the petition. However, practically speaking, it will be a cold day in Yuma before DCS

will compromise on whether or not there will be a threshold finding of dependency.

129

Mostly settlement conferences are about modifying the allegations in the petition -- not

about dismissing it outright.

The key to a functioning settlement conference is to listen and to be creative. By

listening carefully, we can figure out what the parents and what DCS really want. In a

good settlement, both sides can get what they want – or at least what they need. [Do

you hear a choir?] If we can “hear” the common ground, then we can help them

achieve their goals consistent with our client’s interests.

The mediator or judge is present to help facilitate a voluntary resolution of the

petition. They are not present to arbitrate or make decisions. Rather they will try to

assist the parties in reaching a voluntary accord. The role of the facilitator in a

settlement conference will vary depending on the facilitator’s style and/or the underlying

case. Some facilitators may be very proactive in encouraging settlement. Others are

more hands off.

A more active facilitator might offer practical suggestions for compromise. The

facilitator may even perform a little arm twisting by offering his or her analysis of the

import of certain alleged facts. For example, a facilitator may tell the parent’s attorney,

“even if the Judge found that explanation to be credible, the Judge would still find a

dependency.” Or the facilitator might tell the attorney general that, “unless you can

prove that fact, there may be no dependency.”

Other facilitators may leave it up to the parties to see if settlement is possible --

with the facilitator standing by as a resource if needed.

Most discussions will be in a roundtable format with all the parties present.

However, some facilitators like to meet with the parties separately as a means of

facilitating compromise. As in other areas, it is helpful to know your facilitator’s

preferences.

What is a good settlement for our client?

Obviously, any settlement that will enable our client’s long term goals to be met is

a favorable settlement. If our client wants to go home, a settlement that realistically

enhances that possibility is a good settlement. If our client wants be protected from an

abuser, a settlement that clearly establishes the abuse would be preferred.

Whatever our client’s position, the settlement should make it easier for our

client’s goals to be met. Sometimes that can be tricky. For example, if our client wants

to return home, a settlement that creates a minimal dependency would probably make it

easier for the parent to succeed. A parent is more likely to succeed in following the

case plan where there are fewer identifiable problems to overcome.

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On the other hand, if really serious problems exist and they are not identified in

the settlement, DCS may devise an inappropriate case plan that will not address the

poor parental behaviors impacting on the day to day life of our client. A settlement that

places our client in a position of having to be removed a second time does not

accomplish the client’s long term goals. Settlement is a situation where our clients need

good advice and counsel.

If the parties reach a settlement at the conference, it is the court’s custom to try

to wrap it up right there and then. If the settlement allows the parent to admit to

different language from that contained in the original petition, the petition will have to be

amended. Simple amendments may actually be handwritten on the original petition.

More likely, the amendments will be read onto the court record and then memorialized

at a later date by filing of an Amended Petition.

249

If the settlement is acceptable to all the parties, the facilitator will want to take an

admission by the parents to the Amended Petition. That is then presented to the Judge.

If the admission is accepted by the Court, the Court will adjudicate the child as

dependent and will schedule a dependency disposition within thirty days. If no

settlement can be reached, the facilitator will schedule the matter for a trial if a trial date

has not already been set.

Admissions

Most dependencies are settled by some form of admission by the parents. There

is likely to be some changed language in the allegations. However, very few

dependencies go to an adjudication hearing. Before the Judge can accept an

admission by a parent, the Judge or facilitator must advise the parent of his or her trial

rights and of the consequences of an admission.

250

Ultimately, the Judge must also

determine that the admission involves a knowing and voluntary waiver of those rights.

At a facilitated settlement conference the mediator takes over the warning and

assessment functions – but the compromise must still be approved by the Judge. If the

admission is taken in court, then the Judge takes the lead role in ensuring that any

admission is properly made.

“Knowing” means that the parent waiving rights understands those rights being

waived -- i.e., there is a right to a trial; the petitioner must prove the allegations, there

are possible defenses, etc. “Voluntary” means that the parent waiving rights has not

been coerced and/or is not under the influence of drugs, alcohol or medication such that

the parent could not think clearly.

In order to protect the rights of the party making the waiver, the Judge or

mediator will take a few moments to ask that parent some questions. Most Judges will

249

Amended petitions are usually prepared by the Attorney General.

250

Rule 55 RPJC See discussion in the handbook section on Dependency Adjudications.

131

ask if the parent’s attorney explained the parent’s trial rights. They may check to see if

the person can read, write and understand English -- just to be sure that there are no

language misunderstandings.

If for any reason the Judge feels that the parent does not understand, then the

Judge will not accept the admission. If the Judge feels that the parent is not capable of

understanding by a reason other than a language barrier, then the Judge may appoint a

Guardian Ad Litem to act in that person’s best interests.

Similarly, the Judge will ask questions to make sure the admission is voluntary.

The Judge will ask if anyone has made any promises to the parent. If so, the promises

must be placed on the record to make sure that they were not coercive in nature. The

Judge will ask if anyone has threatened the parent or coerced the parent in any way.

The Judge will also ask them if the parent is on medication. If so, the Judge will explore

the nature of the medication and whether or not it might affect judgment. And the Judge

will ask the parent if he or she has had any alcohol or drugs. Again, if the Judge feels

that the waiver is not voluntary, it will not be accepted.

Some Judges or facilitators will also ask similar questions to the attorneys.

“Have you discussed the case with your client? Have you explained possible defenses?

Do you think your client is thinking clearly? Have you made any promises to your

client?”

251

Once the Judge accepts that the admission as knowing and voluntary, the Judge

may also ask questions to determine if there is a sufficient factual basis for a

dependency. The Judge may ask the parent questions about the facts being admitted.

Or the Judge may ask the attorneys if there is sufficient evidence to support a finding of

dependency. Only when the Judge is satisfied that a dependency exists in fact, will the

Judge declare that the child is adjudicated dependent.

251

So far, we have not heard the Judge ask any attorneys if the attorneys are on medications

or have used alcohol in the last 24 hours. But be prepared!

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MEDIATION

Mediation is available when the parties feel that a more intense exploration of an

issue is required. Mediation will allow for more time. Mediation is often helpful when

there are highly emotional issues involved or where the parties just feel stuck. Through

mediation, the parties to a dependency try to resolve the dispute with the help of a

neutral third party called a mediator. In the course of an informal, off the record meeting

the mediator tries to help resolve differences. The mediator does not make a decision; it

is up to the parties to reach their own agreement. The mediator is there to help find a

solution to their problem.

In the Juvenile Court, we send cases to mediation that appear able to be

resolved if the parties could just “talk to each other”. Mediation is not for every case. It

seems to work better when there is a private dispute as in a private dependency. Or

there is a private aspect to a dispute -- such as a dependency in which there is a

concurrent child support or visitation issue in Family Court or a request for a post-

adoption visitation agreement in a severance proceeding.

Any party may request mediation. They can be held voluntarily or the Judge

could order people to appear for mediation. If the parties are ordered to mediation, they

are not required to participate – just to show up and listen to the ground rules.

Mediation can be ordered to try to settle the entire case or just one or two unresolved

issues within a case. The mediation can be requested and ordered during a hearing or

by written motion or by a request to the mediator’s office. A written motion should try to

specify what issue is being mediated and who should attend.

In Juvenile Court, even though mediation may be court ordered, once the parties

appear at the mediation, actual participation is voluntary. Juvenile Court has five

mediators: Stacey Brady, Jessica Findlay, Joseph Berriman, and Leah Cotton.

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The

mediators can be reached through their administrative assistant at 740- 4795.

Attorneys for the adults do not always participate in mediation. For some matters

– such as parenting time -- the theory is that, for mediation to be successful, the parties

themselves need to speak and listen each other directly -- not through intermediaries.

There cannot be an open and free flowing discussion if people are concerned with

“legalities”. The adult’s lawyers must still be available in the Courthouse to offer legal

advice and to review agreements before they are finalized. But they are often asked to

stay out of the process.

On the other hand, the custom in Pima County is that child’s attorney must be

present at all mediations. The attorney will speak for the child or be present to make

sure that an older child’s decisions are not the result of adult overbearing.

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Stacey and Leah were once clinic students just like you!

133

At the beginning of mediation, the parties will sign an agreement to participate in

mediation and to obey certain ground rules. In Pima County, there are essentially three

ground rules:

1. Everything said in the mediation is off the record. Nothing said

can be used in court in any fashion except for the final agreement.

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2. However, if someone makes a statement indicating that there is a

present danger or ongoing child abuse, the mediator is obligate to report the

statement.

3. The parties agree to be respectful to each other and to try to

listen to each other.

Mediation sessions are relatively long -- up to three hours at a time. The

extended time gives the mediator the ability to explore underlying feelings as well as

nuts and bolts matters. The mediator may meet with people privately in a caucus or in

small groups to see where people’s heads are really at.

Ultimately, the mediator will try to see if there is some common ground buried

beneath the adversarial postures of litigation. The mediator will reduce any agreement

to writing. The mediator will then review the agreement orally with the participants

before allowing anyone to sign it. If the parties reach an agreement, it will be forwarded

to the Judge for the Judge’s approval.

The Attorney General’s Office also has a voluntary mediation program that is

available to people before a dependency petition is filed as well as for ongoing cases.

The contact person is Adam Glazier at 628-6504.

Does mediation work?

In a word, “yes.” The more important question is “why does it work?” We offer

two reasons. The first is that the court process does not have the time or the expertise

to let people air their issues. Even with the expanded PPH hearings, there is simply not

sufficient opportunity for the parties to address a person in authority and express

themselves. In Court, lawyers speak for clients, we follow [loosely, perhaps] the rules of

evidence, and clients can only speak when spoken to or questioned in court.

The court process may work well for the efficiently and orderly resolution of

disputes by third party arbitrators. But it does not work well for a resolution within which

all the parties can feel some ownership. Mediation does.

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ARS § 12-2238

134

Similarly, with apologies to Eric Burdon, there is a very real human need to “be

understood.” Even parents who have done badly by their children need to be

understood. Mediation gives them that. Mediators are people in authority who listen.

Don’t underestimate the power of feeling understood. We have been amazed at

how many parents, children and even the state, are willing to compromise once they

feel acknowledged – even to compromises that one would never have believed

possible.

DEPENDENCY ADJUDICATIONS

A dependency adjudication is the process by which allegations of a dependency

become judicially adopted by the court and the court officially determines that the

children are dependent on the State. There are four types of adjudications:

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1. The parent admits the allegations contained in the dependency petition or

admits to an amended version of those allegations.

2. The parent neither admits nor denies the allegations but defaults or otherwise

chooses not to contest the allegations.

3. The parties submit on the papers.

4. The court holds a trial to determine whether or not the dependency exists. An

adjudication hearing [sometimes called a trial] is a contested process where

the state will try to prove the allegations in the petition by a preponderance

of the competent evidence offered at the trial.

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An adjudication does not decide what to do about a dependency. It is simply a

judicial determination that a dependency exists. Decisions about long term placement

or the permanent case plan are left to a later hearing called the disposition.

Admissions

For many reasons, a parent may choose to forego a trial and admit to the original

or amended allegations in the petition. The most common reason is that the parent

recognizes that he or she needs help and wants to move on quickly with the

reunification process. For most parents, the earlier they start, the earlier they can work

toward getting their kids back. For a great many parents, the one year clock of

permanency necessitates an early start. Their problems have taken years to unfold and

12 months is not a lot of time to fix them. For some parents, the stress of a trial can be

overwhelming.

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Rule 55 RPJC

255

Except for ICWA cases where the standard of proof is by clear and convincing evidence.

135

Whatever a parent’s reasons, presumably they have had a healthy conversation

with their attorney about the pros and cons of admitting a petition rather than exercising

their right to a trial. The court will inquire about their awareness of their rights [see

section about settlement conferences, infra] and the voluntariness of their admission.

The court must also decide if the admitted facts can support a finding of

dependency under the law. The court could take additional testimony or rely on the

admission and the documents produced to date. If the court finds that the admission

was knowing and voluntary and that the facts support a dependency, the court will

adjudicate the child to be dependent as to the admitting parent.

Defaults and “no contests”

A parent can also avoid a trial by defaulting – that is, by not showing up at a trial

date. If a parent fails to show and was properly warned at the PPH that an adjudication

could occur in the parent’s absence,

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then the court may make an adjudication with

minimal testimony or relying on the previous record.

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The Court may proceed as if the

parent had admitted the allegations. The court will then assess if the “admitted” facts

constitute a dependency as a matter of law just as it would with an oral admission

described above.

Instead of defaulting by not showing up, a parent may simply state that the

parent does not wish to contest the petition – essentially entering a “no contest” or nolo

contendre [for you Latin scholars] plea. If the parent pleads “no contest”, then the court

will conduct the same inquiries that it would for an admission -- i.e., is the plea knowing

and voluntary? The court will also evaluate the evidence to see if the uncontested facts

constitute a dependency as a matter of law.

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Why would a parent plead no contest?

The most likely scenario for a no contest plea is when a parent is also charged in

a criminal proceeding for the same or similar acts alleged in the petition. For example,

a child might be removed from a parent because of allegations that the parent is using

methamphetamines. The parent could also be charged by the police for possession or

sale of meth. Maybe that arrest is how DCS found out about the drug use.

The parent may not want to admit to allegations of meth use – even if it is true –

because that admission could be used against the parent in the criminal case. The

parent might not want to default because failing to show up could send a message to

the Judge that the parent does not care or want reunification. So the compromise is a

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Rule 50(C)(5) RPJC

257

Rule 55 RPJC

258

Rule 55 RPJC

136

no contest plea. Presumably the message of the no contest plea is this: “Judge, I want

to get my kids back but I have been advised by my lawyer that I should not admit to

drug use until my criminal case is resolved.” The problem of parallel criminal and civil

proceedings poses a number of awkward and difficult choices for the child welfare

system.

Submitting on the papers

If the parent wishes to contest a hearing but wants to avoid a trial, the parent

could submit on the papers. What that means is that the parties will give the Judge the

court reports, the petition, police reports and other documentary evidence. Based on

the papers before the Judge but without testimony or cross-examination, the Judge can

determine if a dependency exists under the law.

Submission on the papers is relative uncommon in Pima County but it is standard

operating procedure in Maricopa County. The most likely reason for a parent to submit

on the papers is face saving. The parent is not ready to say out loud “I have a problem

or I behaved badly.” Maybe the parent wants to be able to tell the world [or the child or

friends or family] “I fought the dependency” but does not want the stress of trial or to

face a trial that the parent knows he or she will lose. Whatever the reason, submission

on the papers is a viable option for some parents.

Adjudication hearing

A parent always has the option of a trial. Dependency trials are rare – occurring

in fewer than 10% of cases. Nonetheless, you may have a case that will go to trial.

The bad news is that trials are stressful, tough and require very thorough preparation.

The good news is that trials are intense and exhilarating. They can be a real buzz.

[oops, my ‘60’s are showing].

I. Pre-hearing Procedures.

A. Disclosure.

Arizona has the most liberal disclosure rules in the nation. Aside from ordinary

disclosure under the Federal Rules, Rule 26.1 of the Arizona Rules of Civil Procedure

puts the burden on all the parties to disclose the names, addresses of all persons who

have relevant knowledge or information and the nature of their knowledge; the

substance of any witness’ testimony; and a list of any relevant document or piece of

tangible evidence known to a party.

However because of the “informal” nature of Juvenile Court hearings, our courts

have ruled that the Rule 26.1 does not apply to dependencies.

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Accordingly, litigants

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S.S. v. Superior Court, 178 AZ 428, 874 P.2d 980 (Division I. 1994)

137

are not required to submit formal disclosure documents or to utilize standard discovery

devices.

Instead, disclosure in Juvenile Court practice is pretty much a one-way street.

DCS routinely discloses all the documents, reports and examinations that it receives. In

addition, DCS is required to submit reports to the court which contain significant

information. On the other hand, the parties -- especially the parents -- tend to disclose

little unless asked.

All disclosure is received by the Court as well. Unless the disclosure is contained

in a required court report, the Judge will file the disclosure in the “social file” -- a file of

court documents that is not open to the public except by Court order.

260

The Judges

have a need to read these reports in order to make interim case management

decisions. They are expected to disregard information in the social file for the purposes

of adjudication unless it is later admitted as evidence. The receipt by judges of

significant disclosure has been criticized by some as tainting the Judge’s ability to fairly

decide the adjudication. However, so far, no cases hold that a Judge is incapable of

limiting adjudication decisions to the evidence presented.

B. Pretrial Disclosure Statement

The parties are usually ordered to file a pretrial disclosure statement at least 20

days before the trial. The rule actually says that the statement must be filed 60 days

after the Preliminary Protective Hearing.

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The practical difficulty is that sometimes

trial remains uncertain during the first 60 days. So the 20 day policy seems to be what

is observed. The pretrial statement must include:

262

(1) The uncontested facts deemed material;

(2) Contested issues of fact and law that are material or applicable;

(3) A statement of other issues of fact or law which that party believes to be

material;

(4) A list of the witnesses the party intends to call at trial, which shall include the

names, addresses and telephone numbers of the witnesses in addition to a description

of the substance of the witness' expected testimony.No witness shall be used at the trial

other than those listed, except for good cause shown.

(5) A list of and copies of all exhibits which the party intends to use at trial. If a

party objects to the admission of an exhibit, the party shall file a notice of objection and

the specific grounds for each objection and provide a copy of the notice to all parties

260

Rule 47 RPJC

261

Rule 44 RPJC

262

Rule 44 RPJC

138

and the court within ten (10) days of receipt of the list of exhibits. Specific objections or

grounds not identified in the notice of objection shall be deemed waived, unless

otherwise ordered by the court. No exhibits shall be used at trial other than those

disclosed in accordance with this rule, except for good cause shown.

In addition, the pretrial disclosure statement will certify that exhibits have been

exchanged.

If the parties wish to object to any exhibit or witness contained in the

pretrial statement, they must do so, in writing, before the trial. Objections not

made are waived.

Below is an example of a pretrial disclosure statement.

CHILD AND FAMILY LAW CLINIC

University of Arizona College of law

1145 N. Mountain Ave.

Tucson, AZ 85719

State Bar No. 008169

(520) 626-5232

Fax: (520) 626-5233

Attorney for Minors

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

JUVENILE COURT

In the Matter of

C, J dob 07/00/00

No. J 111111

PRE-TRIAL STATEMENT

Hon. Judge Judy

The minor, JC by and through counsel undersigned, submits the following Pre-

Trial Statement:

I A. Nature of Action: Contested Dependency

B. Trial Schedule: 06/13/10 9:00 a.m. – 5:00 p.m.

II The names and addresses of the parties are as follows:

Petitioner: AZ Department of Economic Security

Abe Lincoln, responsible case manager

1700 E. Broadway

139

Tucson, AZ 85719

Respondent: S G

Minor: J C in relative care

III Exhibits for Petitioner:

1. Child Protective Services Court Report(s) of 02/27/10 (disclosed

02/28/10).

2. Child Protective Services Case Plan(s) of 02/27/10 (fax date, Section XI-

XV, Case Plan, disclosed 02/28/10) and Summary of Case Plan Tasks (draft, disclosed

03/07/10).

3. SAMHC Behavioral Health Services assessment of the child, prepared by

Sigmund Freud, LAC/Clinician, dated 02/27/10 (disclosed 02/28/10).

4. In-Home Service Program Monthly Progress Reports and summaries

including but not limited to report of May 2007 prepared by Wily Coyote (disclosed

02/28/10) and Discharge Summary dated 02/29/10 (disclosed 03/07/10).

5. Any and all call-in compliance reports, PSI Drug test results of the step-

father, including but not limited to reports from February 2010 to the present.

6. Any and all and Omega Laboratory hair drug test results of the step-father,

including but not limited to report of 02/28/10 (date reported).

7. Any and all call-in compliance reports, PSI Drug test results of the mother,

including but not limited to reports from February 2010 to the present.

8. Any and all and Omega Laboratory hair drug test results of the mother,

including but not limited to report of 03/03/28 (date reported).

9. Any and all call-in compliance reports, PSI Drug test results of J G,

including but not limited to reports from February 2010 to the present.

10. Any and all and Omega Laboratory hair drug test results of J G, including

but not limited to report of 03/04/28 (date reported).

11. ADHS-DBHS Behavioral Health Assessment and Services Plans of the

mother prepared by Carl Jung, Our Family, dated 03/10/10 (disclosed 04/28/10).

12. ADHS-DBHS Behavioral Health Assessment and Services Plans of the

step-father prepared by Carl Jung, Our Family, dated 03/10/10.

13. Behavioral Health Service Plan for the child prepared by Carl Jung, dated

03/14/10 (disclosed 04/28/10).

14. Crisis Plan of the child prepared by George Ruth, Intermountain Centers

for Human Development, date of plan 03/14/10.

15. Any and all TDM Summary Reports including but not limited to report of

02/02/10 (disclosed 02/28/10).

16. Psychological evaluation of the mother, J G, prepared by Joyce Brothers,

Ph.D., date of report 03/17/10, (disclosed 04/28/10).

17. Psychological evaluation of the child, J C, prepared by Joyce Brothers,

Ph.D., date of report 02/07/09 (disclosed 03/07/10).

18. Psychological evaluation for the mother, S G, prepared by Joyce Brothers,

Ph.D., date of evaluation 04/14/10.

19. Psychological evaluation of the step-father, L G, prepared by Joyce

Brothers, Ph.D., date of evaluation 04/14/10.

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Any exhibit listed by any other party

IV Witnesses for Petitioner:

1. Respondent Elicited testimony: The mother’s ability and willingness to

parent and protect her child, and her progress with reunification services.

2. Betsy Ross, investigating caseworker 740-1882 ext. xxx

Expected testimony: The circumstances surrounding the dependency, the case plan

and case management, and the mother’s participation in the tasks in the case plan.

3. Abe Lincoln, ongoing case manager 884-4755 ext. xxxx

Expected testimony: The case plan and case management, and the mother’s

participation in the tasks of the assigned case plan.

4. Joyce Brothers, Ph.D. 1000 E. Speedway Blvd.Tucson, AZ 85705 1 888

555-1212

Expected testimony: Her clinical interview, mental health examination, test findings,

diagnostic impression, conclusions and recommendations from her psychological

evaluations of the parents and the children.

5. Roy Orbison, Ph.D.J2 Laboratories 3640 North 1

Ave., #130 Tucson, AZ

85719 (877) 690-7385

Expected testimony: His review and opinion regarding methods and veracity of drug test

results.

6. Wily Coyote Intermountain Centers for Human Development 7920 E.

Broadway Suite 100 Tucson, AZ 85710 721-1887

Expected testimony: Services provided to the child, her assessment and

recommendations.

6. Yosemite Sam, Clinician The Blake Foundation Child & Family Services

3170 E. Ft. Lowell Rd. Tucson, AZ 85716 795-4977

Expected testimony: Services provided to the family, her case notes, the family’s need

for services and the family’s ability or inability to benefit from services.

7. Foghorn Leghorn, In-Home Services The Blake Foundation Child &

Family Services 3170 E. Ft. Lowell Rd. Tucson, AZ 85716 321-3396

Expected testimony: Services provided to the family, his case notes, the family’s need

for services and the family’s ability or inability to benefit from services.

8. Hans Brinker SAMHC Behavioral Health Services 2502 North Dodge,

#190 Tucson, AZ 85716 618-8610

Expected testimony: SAMHC assessment of the child, the child’s need for services and

her recommendations.

141

9. Foster Parents [names not disclosed] Address not disclosed

Expected testimony: Will testify about the child’s special needs and daily care.

10. Any witness called by any other party

V. Objections to Exhibits

All the documents listed by the other parties are hearsay.

VI Objections to Other Party’s Witnesses

None

VII Uncontested Issues of Fact Deemed Material:

1. S G is the mother of the minor, J C.

2. L C may be the father of the minor, J C.

3. L G is the step-father of the minor, J C.

4. The minor has been in the temporary care, custody and control of the

Department since February 15, 2010.

VIII Contested Issues of Fact Deemed Material:

1. Whether S G is willing and able to provide safe, proper and effective

parental care of the minor.

IX Uncontested Issues of Law:

1. The Pima County Juvenile Court has jurisdiction to hear this matter.

X Contested Issues of Law:

1. Whether the minor is dependent pursuant to A.R.S. § 8-201 (13).

XI This Pretrial Statement will be supplemented in a timely manner should the

parties become aware of additional witnesses, exhibits or objections.

RESPECTFULLY SUBMITTED this _____ day of __________, 20__

CHILD AND FAMILY LAW CLINIC

__________________________

By Jason Simon

Certified Limited Practice Student

Attorneys for Minors

___________________________

Paul Bennett

Supervising Attorney

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COPY mailed this ______ day of ____________, 20__ to:

Attorney General Jack McCoy, Esq.

3939 S Park St 0101 N. Shannon Rd

Suite 1000 Phone: 555-1212

Tucson, AZ 85719 Tucson, AZ 85742

Attorney for mother

Judy Blue Eyes

3535 David Crosby Blvd.

Tucson, AZ 85701

Attorney for the father

143

C. Status Conference

About the same time that the pretrial statement is due, the court will hold a short

status conference to make sure that everything is in order for the trial. Sometimes the

Court will make a last ditch attempt to settle the case at the final status conference. If the

parties do not settle, then the matter will go to trial.

II. Conduct of the Trial

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A. Finding of Dependency in Absentia

If a parent does not appear for the trial, the court may -- after finding that the parent

had proper notice of the hearing and proper warning at the PPH -- declare that the parent

has waived the right to a hearing and is deemed to have admitted the allegations in the

petition by failing to show. The court can then made a finding of dependency and make

dispositional orders based on the record and evidence to date.

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If the court had previously made the admonition referred to in the PPH section, the

Judge will most likely make the finding in absentia.

B. “The Rule”

At the outset of the adjudication hearing, you may hear one of the parties stating that

they “invoke the rule”. While this “invocation” sounds like you might be part of a séance,

the parties are, in fact, requesting that the court exclude non-party witnesses under Rule

615 of the Rules of Evidence.

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Under Rule 615, any party may request that the Court

exclude all non-party witnesses from the courtroom so that they cannot hear the testimony

of other witnesses. The rule does not apply to party witnesses who have an absolute right

to be present. Under Rule 615, granting the request is automatic.

When a party “invokes the rule”, the Court will ask all potential witnesses to identify

themselves. The Judge will then ask the witnesses to leave the courtroom -- explaining why

-- and will also order the witnesses not to talk to each other about their testimony. The

latter order cannot be found in Rule 615 but is pretty standard in Juvenile Court. If and

when a witness completes his or her testimony, with the consent of all parties the witness

may remain in the courtroom but may not testify further.

C. Order of Events at Hearing.

The Judge will conduct the adjudication hearing like any other civil trial but with

flexibility to deviate from strict courtroom protocol. The rules state that a ”contested

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The statute and rules refer to a dependency “adjudication” hearing. ARS §8-844; Rule 55 RPJC.

For all practical purposes, there is no difference between an “adjudication hearing” and a “trial”.

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Rule 55 RPJC

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Rule 615 Arizona Rules of Evidence

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dependency adjudication shall be as informal as the requirements of due process and

fairness permit.”

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The State has the burden of proving the facts of the dependency by a

preponderance of the evidence.

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As in any other civil case, each party -- including the

child -- has a right to call witnesses, to cross examine witnesses, to present evidence and to

subpoena people and documents.

Since the State has the burden of proof, it will present its evidence first. Even if the

DCS witnesses are friendly to us, our examination of them will be considered cross-

examination and leading questions will be allowed. Different Judges handle the order of

cross examination differently. Some have the parent’s attorney go first and the child’s

attorney last. Others do the reverse. It is a good idea to find out before the hearing starts.

As in temporary custody hearings, witnesses may appear by telephone.

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However,

the rules require a motion for telephonic testimony in advance of the hearing.

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The Judge may ask for opening statements. The Judge will usually ask for an oral

summation with the parent going first and the State last. If requested, the Court may allow

written summations.

D. Rules of Evidence

Dependency hearings are designed to be conducted in an informal manner.

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Nevertheless, the rules of evidence apply to most dependency hearings -- especially

dependency adjudications, placement hearings, severance hearings and guardianship

hearings. Thus, as in any other civil trial, the evidence presented must be competent,

material and relevant. The hearsay rule applies as do rules concerning foundation and

opinion evidence.

There are some special rules, however, which apply only to the Juvenile Court. It is

important that the juvenile court practitioner be aware of these special rules.

1. Privilege.

The doctor-patient, social worker-client and the marital privilege are all deemed

waived for the purposes of abuse and neglect hearings.

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A person who speaks in

confidence about child abuse or neglect is not protected by the normal societal privileges.

Thus, if a patient tells his psychiatrist about on-going child abuse, the psychiatrist cannot

keep that matter secret but, in fact, must report it to the appropriate authorities.

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Rule 55 RPJC

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Rule 55 (C) RPJC

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Rule 42 RPJC

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Rule 42 RPJC

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Rule 55 (D) RPJC

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ARS § 8-805

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Presumably, the public policy in support of such privileges is outweighed by the

public policy of protecting children from abuse or neglect. Note, however, the statutes

suspending the privileges do not affect the attorney client privilege. What a client tells his or

her lawyer in confidence remains protected by the evidentiary privilege subject to the

Arizona Rules of Professional Conduct.

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2. Hearsay.

The hearsay rule applies in Juvenile Court

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. In Arizona, hearsay is defined as

“.a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”

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Juvenile Court, like all other Civil Courts in Arizona, recognizes the common exceptions to

the hearsay rule such as a party admission and the business record exception.

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addition, the hearsay exceptions have been expanded somewhat in the Juvenile Court.

There are three significant exceptions to which apply only to dependency

adjudications in Juvenile Court.

a. Statements by a Child about Abuse or Neglect.

Out of court statements from a child concerning abuse or neglect are admissible by

statute.

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The circumstances surrounding the child’s statement must offer some basis of

reliability. However, in practice, nearly all statements by children are admitted as special

exceptions to the hearsay rule. Unlike other states, Arizona does not require that the

hearsay statement of a child to be corroborated.

The obvious purpose of the statutory exception for hearsay statements by children is

to protect children from having to testify in court. The theory is that testifying -- especially in

front of the child’s parents -- could cause harm to the child. While this may or may not be

true in a particular case, the statute obviates the need for proponent of a child’s hearsay

statement to make any preliminary showing of harm to a child.

b. Written reports of case managers.

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See e.g. Rule 1.6 of the Rules of Professional Conduct and commentary.

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Rule 802 Arizona Rules of Evidence

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Rule 801(c) Arizona Rules of Evidence

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Rule 803 Arizona Rules of Evidence

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ARS § 8-237 “The out of court statements or nonverbal conduct of a minor regarding acts of

abuse or neglect perpetrated on him are admissible for all purposes in any adoption, dependency

or termination of parental rights proceeding under this title if the time, content and circumstances

of such a statement or nonverbal conduct provide sufficient indication of its reliability.” See also

Rule 45 (E) RPJC

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The second major exception concerns the written reports of case managers. Case

managers are required by statute to issue periodic written reports to the courts about the

status of each dependent child. Those reports include all sorts of information -- much of it

involving statements of third parties such as visitation supervisors, therapists, child care

providers, etc.

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Generally, these written reports would not be admissible as they are out of court

statements offered to prove the truth of the matters asserted within them. However, by court

rule, case manager’s reports are admissible without foundation IF:

(1) They have been distributed to the parties at least 10 days in advance of the

hearing; and

2) The case manager is available for cross examination.

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While the parties are protected from the statements in the reports that originate with

the case manager by the requirement that the case manager be available for cross-

examination, this hearsay exception offers little protection from third party Ahearsay within

hearsay” contained in these reports. As a result, some judges will allow significant amounts

of hearsay contained in the case managers reports without requiring the state to produce

those witnesses for cross examination.

c. Reports of Evaluators

The Rule 45 (D) also provide that reports of evaluators such as psychologists,

doctors, and the like, are admissible if the person who prepared the report is available for

cross examination and the report was promptly disclosed under Rule 44.

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Foster Care Review Board and other Official Reports.

The final special Juvenile Court exception is for reports to the court required by law.

These reports include Reports of the Foster Care Review Board and reports of the Court

Appointed Special Advocate.

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The Judge in a dependency hearing can take full

cognizance of those reports without special foundation and without requiring the availability

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See e.g. ARS §8-802(C)(7)(b) [report for the PPH]; and ARS § 8-516(E) requiring a detailed

progress report on any child in placement including:

1. An assessment of the extent to which the division or agency is accomplishing the

purpose of foster care for the child as described in the case plan.

2. An assessment of the appropriateness of the case plan.

3. The length of time the child has been in foster care.

4. The number of foster home placements the child has experienced while in foster care

and the length of each placement.A