About two weeks ago, I attended the fourth annual Children’s Justice Conference in Rapid City. The conference is sponsored by the Unified Judicial System’s Court Improvement Program. The event was essentially a continuing education event primarily for therapists, social workers, and CASA volunteers. Out of the well over 100 people in attendance, there were a total of six attorneys and one judge.
As usual, the most informative part of the day in my opinion was hearing from young adults who aged out of the system and are part of the Young Voices group. Unlike two years ago, all three of the panel members knew they had an attorney, but none remembered ever meeting their attorney more than one time. As all of them were in the system for multiple years, that is a damning condemnation of the quality of representation they received. Additionally, none of them had ever seen or spoken to any of the judges handling their case until the very final hearing when the case was closed (there were probably multiple judges that handled each case).
As far as continuing education programs go, this was probably a good one. However, as I lamented following the event two years ago, it is definitely not designed to be a catalyst for any serious discussion regarding improving the child welfare system. Here are some potential topics that could be discussed, but usually aren’t:
- What changes can be made to make sure attorneys actually do their job when representing children? If you represent a child for years and don’t talk to the child more than once, you have committed legal malpractice. The most obvious way for this to be fixed would be for judges to hold attorneys accountable for actually talking to their clients. It would take very little time for the judge to ask the attorney at each hearing “when was the last time you spoke with your client.”
- What is the actual role of attorneys for children in South Dakota, and should it be changed? The “child’s attorney” in South Dakota does not really represent the child. SDCL 26-8A-18 charges the child’s attorney with representing what that attorney determines to be in the child’s best interests, not the stated wishes of the child. The views of teenagers who are perfectly capable of expressing what they want, but who want something that their attorney does not believe is in their best interests (such as to return home), are effectively unrepresented. There are no provisions for dealing with this conflict in South Dakota, and the child’s attorney cannot comply with the ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases.
- Should we adopt the one-family, one-judge model? At least in the 7th Circuit, the A&N docket is reassigned annually, although judges will sometimes keep cases nearing completion. I have personally seen A&N cases complicated by a protection order case being handled by a different judge than the A&N case. There is evidence that a one-family, one-judge model produces superior results.
- Should judges meet with the child? They should according to the Resource Guidelines promulgated by the National Council of Juvenile and Family Court Judges. This question may have more relevancy since, as previously mentioned, there is no attorney assigned to zealously represent the views of the child.
- Do we need to change our procedures at the start of an abuse and neglect case? In my opinion, the Constitution says we do.
- Why is the jurisdictional information that is required by SDCL 26-5B-209 (the UCCJEA) never put in the pleadings in A&N cases?
- Should we open the courts or otherwise enable some sort of court monitoring program? I have previously said that we should.
- Are our current procedures sufficient when a child is moved to a more restrictive level of care? Right now, DSS can basically decide the level of care without court approval, which may be of questionable constitutionality.
- Can we more effectively provide services to help reunite families? For example, if a child is removed in Rapid City, that child will typically get to see his or her parents once a week for about two hours. That is very obviously not enough, although there are also resource limitations.
- What can be done to ensure there are sufficient placement resources, namely family members and foster homes? For example, I know of more than one foster family that quit providing foster services for DSS because they felt they were treated poorly by the Department. Some still provide foster care by working with other entities.
- Can we do more to prepare youths who are going to age-out of the system?
- Are there other innovative measures that are working in other jurisdictions?
For there to be meaningful discussion on many of these topics, judicial leadership is necessary. Everyone else can talk, but if the judiciary is not part of the discussion, very little will happen. I personally wonder when we will stop just paying lip service to children’s issues and start actually doing something.