New England New England November 2012November 2012

Children in the Courtroom Children in the Courtroom Sounds Good, BUT..... Sounds Good, BUT.....

Margaret A. Burt, Esq.Margaret A. Burt, Esq.

All I ever wanted was to be All I ever wanted was to be heard and not just heard and not just

dismissed…dismissed…

Youth in foster careYouth in foster care

Child and Family Service Child and Family Service Improvement Act of 2006Improvement Act of 2006

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

Does “consult” mean child has Does “consult” mean child has to be present in court?to be present in court?

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

Benefits when youth participate…Benefits when youth participate…

Child or Youth may have more sense Child or Youth may have more sense of controlof control

Child or Youth may have a better Child or Youth may have a better understanding of the processunderstanding of the process

Shows Child or Youth that their Shows Child or Youth that their opinion is wanted and respectedopinion is wanted and respected

There may be more information for There may be more information for the courtthe court

OK – this is old stuff to meOK – this is old stuff to me

We already know about this and we do We already know about this and we do try to bring children and youth to come try to bring children and youth to come to their permanency hearings nowto their permanency hearings now

Is bringing children and youth to court Is bringing children and youth to court actually the normal expected practice actually the normal expected practice in your court? Is the child or youth in your court? Is the child or youth really participating in a meaningful way really participating in a meaningful way or are things getting in the way of that?or are things getting in the way of that?

Is there a Is there a meaningfulmeaningful appearance by the child or appearance by the child or

youth?youth?

What is What is reallyreally happening?happening?

HANDS UPHANDS UP Do children and youth come to their Do children and youth come to their

permanency hearings in your experience?permanency hearings in your experience? How frequently?How frequently? Does it matter what age the child is?Does it matter what age the child is? Are they given an opportunity to speak if Are they given an opportunity to speak if

they are there?they are there? How is this done?How is this done? Do they actually talk? Do they actually Do they actually talk? Do they actually

talk about their own permanency issues talk about their own permanency issues and goals?and goals?

What does it look like now in What does it look like now in Your State?Your State?

Who actually decides if child comes?Who actually decides if child comes? Who preps child?Who preps child? How does child “talk” to Judge?How does child “talk” to Judge? Can child talk privately to the Judge? Can child talk privately to the Judge? Who talks to child after the Who talks to child after the

appearance?appearance?

Roles Roles How are things explained to the child How are things explained to the child

about best interests vs the child’s about best interests vs the child’s wishes?wishes?

Who explains this to the child?Who explains this to the child? How will child’s opinion be advanced, if How will child’s opinion be advanced, if

others have different BI position? others have different BI position? Should court and agency also be Should court and agency also be

concerned ethically or due to IV-E concerned ethically or due to IV-E issues if child’s wishes are presented?issues if child’s wishes are presented?

Child Representative’s role when a Child Representative’s role when a youth comes to courtyouth comes to court

Inform the court of any issuesInform the court of any issues Prepare clientPrepare client Ensure youth is aware of what’s Ensure youth is aware of what’s

happeninghappening Allow/Help the youth to speakAllow/Help the youth to speak Discuss the hearing afterwardsDiscuss the hearing afterwards OR – in a particular case, should any of OR – in a particular case, should any of

this be done by caseworker, CASA or this be done by caseworker, CASA or foster parent? foster parent?

Policy and Practice ConsiderationsPolicy and Practice Considerations

What are youth’s wishes? How much What are youth’s wishes? How much before hearing is this ascertained? before hearing is this ascertained? How often are we checking to see if it How often are we checking to see if it has changed?has changed?

How old is the youth?How old is the youth? What is the developmental level of What is the developmental level of

the youth?the youth? Will attending court upset the youth?Will attending court upset the youth?

Policy and Practice ConsiderationsPolicy and Practice Considerations

Will attending court disrupt the Will attending court disrupt the youth’s routine?youth’s routine?

Will court be confusing or boring to Will court be confusing or boring to the youth?the youth?

Who will transport the youth?Who will transport the youth? Will the court need additional time Will the court need additional time

for the hearings?for the hearings?

Assess client preferences- Assess client preferences- before courtbefore court

Does child have any preferences that should Does child have any preferences that should be brought to the court’s attention?be brought to the court’s attention?

Elicit child’s preferences in developmentally Elicit child’s preferences in developmentally appropriate manner, recheck right beforeappropriate manner, recheck right before

Make a good faith effort to determine child’s Make a good faith effort to determine child’s wisheswishes

Child can but won’t express preference? – Child can but won’t express preference? – determine if child wants their representative determine if child wants their representative to:to: Be decision makerBe decision maker Be silentBe silent Express preference only if parent isn’t presentExpress preference only if parent isn’t present

Evidence IssuesEvidence Issues Is what child tells Judge “secret” or Is what child tells Judge “secret” or

does that violate the parent’s rights? does that violate the parent’s rights? Are parents attorneys entitled to Are parents attorneys entitled to “cross” the child?“cross” the child?

Is Judge in total control of deciding if Is Judge in total control of deciding if child will come to court and how child child will come to court and how child will present ? – preserve for appeal? will present ? – preserve for appeal?

What is weight of child’s position?What is weight of child’s position? What could be done about backlash to What could be done about backlash to

the child?the child?

Different Jurisdictions : Different Jurisdictions :

Have the youth present in the court room Have the youth present in the court room only for certain issues like visitation or only for certain issues like visitation or placement but exclude for discussions of placement but exclude for discussions of difficult parental issuesdifficult parental issues

Have the youth talk in chambers - with or Have the youth talk in chambers - with or without the lawyerswithout the lawyers

Present the child’s hearsay statements in Present the child’s hearsay statements in court via written or oral statements from the court via written or oral statements from the child’s representative – with or without the child’s representative – with or without the child presentchild present

Different Jurisdictions:Different Jurisdictions: Have “Enhanced Hearings” for older Have “Enhanced Hearings” for older

youth and/or special hearings for youth youth and/or special hearings for youth close to aging out close to aging out

Arrange advance visit to the courthouseArrange advance visit to the courthouse Have the youth wait in a special waiting Have the youth wait in a special waiting

area for the hearing – food, activities area for the hearing – food, activities (obtain community volunteer help)(obtain community volunteer help)

Have a “birthday” acknowledgement at Have a “birthday” acknowledgement at court – card, photo, cake (also court – card, photo, cake (also community volunteer help) community volunteer help)

Different Jurisdictions:Different Jurisdictions:

Allow the child to appear via Allow the child to appear via teleconferenceteleconference

Had “teen” day at court Had “teen” day at court Made sure all sibs were at the same Made sure all sibs were at the same

time --- or not, if that was seen as an time --- or not, if that was seen as an issueissue

Talked to child/youth individually Talked to child/youth individually without sibs present and then with sibswithout sibs present and then with sibs

Did mock hearing trainingDid mock hearing training

Different JurisdictionsDifferent Jurisdictions

Put together books at age Put together books at age appropriate levelsappropriate levels

Put together videos – for children and Put together videos – for children and for attorneys and Judgesfor attorneys and Judges

Created an older foster care youth or Created an older foster care youth or a prior foster care youth advocate a prior foster care youth advocate that would accompany child/youth that would accompany child/youth

Common IssuesCommon Issues

Child who says he/she does not want Child who says he/she does not want to come to court at all:to come to court at all:

Does not want to come or does not have Does not want to come or does not have an opinion to express?an opinion to express?

Why and who is talking to child about it?Why and who is talking to child about it?

Come with a friendCome with a friend

Contact/Invite from the JudgeContact/Invite from the Judge

Letters/ checklist input as an optionLetters/ checklist input as an option

Common Issues:Common Issues:

There are things that the child should There are things that the child should not hear/knownot hear/know

Really? How do we know that the child Really? How do we know that the child does not already know?does not already know?

Have child step out of court at this Have child step out of court at this point? How would this look or be point? How would this look or be handled?handled?

Common Issues:Common Issues:

Hearing is at a bad time, or will take Hearing is at a bad time, or will take too long:too long:

Can the court be advised in advance Can the court be advised in advance that more time will be needed?that more time will be needed?

Can hearings be held outside of school Can hearings be held outside of school hours?hours?

REALLY???REALLY???

Common Issues:Common Issues: At court child becomes (or we think might At court child becomes (or we think might

become) very emotional or won’t say become) very emotional or won’t say anything at all:anything at all:

Someone there that the child wants/trustsSomeone there that the child wants/trusts

Still able to communicate? Use other ways Still able to communicate? Use other ways to communicate – write something out, to communicate – write something out, let GAL say what child would like saidlet GAL say what child would like said

Is it really our discomfort?Is it really our discomfort?

Common IssuesCommon Issues

Child is not supposed to have contact Child is not supposed to have contact with the parentwith the parent

What is reason for the no contact?What is reason for the no contact?

Bifurcate the hearing?Bifurcate the hearing?

Your ideas?Your ideas?

What has worked for you?What has worked for you?

What are you biggest challenges?What are you biggest challenges?

What training or other things would What training or other things would you recommend and for who?you recommend and for who?

Youth should feel that …Youth should feel that …

I have the right to:I have the right to: Attend all hearings where case is reviewedAttend all hearings where case is reviewed Meet with my representative before hearingsMeet with my representative before hearings Tell my representative where I want to live and Tell my representative where I want to live and

what services I think I need to meet your goalswhat services I think I need to meet your goals Have my representative do what is needed to Have my representative do what is needed to

help I get an appropriate placement and make help I get an appropriate placement and make sure my needs are metsure my needs are met

Have my representative call witnesses to Have my representative call witnesses to testify for me or present evidence to the court testify for me or present evidence to the court to support my positionto support my position

Have my representative cross examine Have my representative cross examine witnesseswitnesses

Have the judge know what I think about my Have the judge know what I think about my placement and any needs that I have, including placement and any needs that I have, including visitation – not to have visitation used as a visitation – not to have visitation used as a punishment or rewardpunishment or reward

Have a judge determine if my needs are being Have a judge determine if my needs are being met, if I am in an appropriate placement, and if met, if I am in an appropriate placement, and if I am receiving all the services I need to meet I am receiving all the services I need to meet my goalsmy goals

Have information shared in court be kept Have information shared in court be kept confidential and discussed only with people confidential and discussed only with people who need to know about it to provide me with who need to know about it to provide me with care and servicecare and service

Child and Youth at Court?Child and Youth at Court? This is just This is just too important too important to go through to go through

the motions or check the boxthe motions or check the box

You cannot know how You cannot know how vitalvital this may be this may be to the childto the child

It is It is CRITICALCRITICAL for the child or youth to for the child or youth to see themselves as a person whose see themselves as a person whose presence and opinion are valued by presence and opinion are valued by everyone in our system everyone in our system