Ethical issues in North Dakota child welfare cases: principles and practice

1. Ethical issues in North Dakota child welfare cases: principles and practice Children�s Justice Symposium Bismarck, North Dakota JULY 22-24, 2008

2. 2 �This court is real, real different.� first year law student Not civil litigation Not criminal litigation An environment of shared goals Policy driven Most language is not legaleese Lots of public scrutiny Pressure to meet external deadlines Emphasis on problem solving

3. Each of these professions directly involved in deprivation proceedings have shared and separate ethical duties A. Social workers B. State�s attorney/prosecutor/DA C. Attorney GAL for children D. Attorney for parents E. Judges

4. 4 National Association of Social Workers (NASW) ETHICS ETHICAL PRINCIPLES Social worker�s primary goal is to help people in need & to address social problems. Social workers challenge social injustice. Social workers recognize the central importance of human relationships. Social workers behave in a trustworthy manner. Social workers practice within their areas of competence & develop & enhance their professional expertise.

5.  Ethical issues/challenges for lawyers in deprivation cases Relationship with your client Relationship with caseworkers Relationship with attorneys Relationship with other interested parties Each case is unique Confidentiality Meandering �policy� Advocacy or collaboration? Advocacy through collaboration???

6. 6 North Dakota Rules of Professional Conduct I. Client-Lawyer Relationship 1.1 Competence 1.2 Scope of representation 1.3 Diligence 1.4 Communication 1.6 Confidentiality of information 1.7 Conflict of interest 1.13 Organization as client 1.14 Client with limited capacity II. Counselor 2.1 Advisor

7. 7 More N.D.R Professional Conduct lll. Advocate 3.1 Meritorious claims and contentions 3.2 Expediting litigation 3.3 Candor toward tribunal 3.4 Fairness to opposing party & counsel 3.8 Special responsibilities of a prosecutor lV. Transactions with Others 4.1 Truthfulness in statements to others 4.2 Communication with person represented by counsel 4.3 Dealing with unrepresented person 4.3 Respect for rights of third persons

8. Specific ethical challenges in representing a child welfare agency, parents, and children and our shared ethical duties as lawyers Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.

9. Who is my client? State�s attorney Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.

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11. State�s Attorney has an Organization as a Client Lawyer represents the organization or agency, acting through its duly authorized constituents In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on the lawyer. � A lawyer should exert best efforts to ensure that decisions of the client are made only after the client has been informed of relevant considerations . . . Advice of a lawyer to the client need not be confined to purely legal considerations . . . The lawyer may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. Organization as Client (NDRPC 1.13)

12. NDRPC 1.13 Organization as a Client (cont.) If a lawyer for an organization knows that an officer, employee � is engaged in action � that is a violation of a legal obligation to the organization � the lawyer shall proceed as is reasonably necessary in the best interest of the organization. (b) Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

13. Practice Pointer: Watch for ethical traps-conflict of interest and duty to do justice

14. Ethical and Practice Considerations: when professionals don�t agree and things dissolve �Do I have a conflict of interest?� Key principles: 1) the attorney and caseworker should start with a face-to-face meeting to try to resolve the conflict; 2) if there is no resolution, the system should delineate how each should go up their respective chains of command; and 3) the system should set out examples of issues that are legal and those that are social work decisions, understanding that most issues will need to be resolved jointly. timeframes for resolution avoid conflicts in front of judge and other parties PPointer See WVA Chapter 49 �

15. 15 TRAP: The hallways of the courts have ears �We cannot sell this plan to THIS judge� �No parent should ever have a second chance to abuse a child.� �Everyone knows that her reports are always late.�

16. 16 Let�s look at a family that might be familiar Maggie and her older brother, RonaldSome questions of ethics Q: How many ethical issues can you identify? Q: Who is responsible for resolving each issue? Assign the issues to the appropriate person. Q: Are there solutions? For each issue, identify at least one solution.

17. 17 Maggie Maggie aka Margaret is 11 TPR 2 years ago Adoptive home failed Case manager tells her that she will have a new home soon Something happened in adoptive home New adoptive home in same neighborhood Asks GAL help her out to stay in school Quits talking to GAL�wants to talk to judge only

18. Shared ethical duties Competence, Diligence & Communication A lawyer shall provide competent representation COMMENTARY (A) A lawyer shall not: (1) Handle a legal matter which he/she knows or should know that he/she is not competent to handle, without associating with him a lawyer who is competent to handle it. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him/her. CAROLYN: Review tools used by court facilitators to help make the D & N process go more smoothly so that children can be placed into a safe, permanent home as expeditiously as possible. Tools in a workbox that can be used as needed for prevention as well as remediation. A dual layer of tools � the Ct. Facil position is the main tool and what we use to make our positions most effective are our tools.CAROLYN: Review tools used by court facilitators to help make the D & N process go more smoothly so that children can be placed into a safe, permanent home as expeditiously as possible. Tools in a workbox that can be used as needed for prevention as well as remediation. A dual layer of tools � the Ct. Facil position is the main tool and what we use to make our positions most effective are our tools.

19. A LAWYER SHALL REPRESENT A CLIENT ZEALOUSLY

20. 20 Ronald Ronald (16) had to be moved to foster home No TPR, father in prison and mother ?? Mild mental retardation FP not willing to keep him after 18- but don�t know how he will be able to make it on his own. Aunt recently graduated from residential drug treatment Visitation with aunt on condition of testing Overhears their conversation outside courtroom GAL denies Wants a new lawyer NOW State's attorney says aunt has a dirty test Case manager explains her testimony regarding test result to state�s attorney�wants to explain to judge. State�s attorney refuses Subsequent motion for visitation to resume� no objection?

21. 21 ATTORNEY FOR MOTHER or FATHER INCARCERATED CLIENT communication control of case case plan CASE STRATEGY different stages require different tactics mediation AND, what about the child/children when the plan is no longer reunification but APPLA, placement with a fit and willing relative

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23. 2. 2. Promote timely hearings and reduce case continuances. Unique to abuse and neglect proceedings�ASFA +state law+child development3. Cooperate and communicate on a regular basis with other professionals and parties in a case, including the client/agency   �AN EFFORT TO�.�: Policy � Foster positive relations among professionals, parents and court Practice � Read court�s file, be aware of history and pending issues Example � Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child�s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example � set up visits between 3 sets of grandparents and extended family members Judicial Perspective � �BARRIERS IN CASES��: �Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.� �NEUTRAL FACILITATION��: �Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them � So many treatment plans have language that the parent may not understand. The plan might make reference to �fostering a positive parental relationship� � does the parent know what that means? The CMC is a time to make that very clear.� �NOTES��: Next slide �AN EFFORT TO�.�: Policy � Foster positive relations among professionals, parents and court Practice � Read court�s file, be aware of history and pending issues Example � Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child�s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example � set up visits between 3 sets of grandparents and extended family members Judicial Perspective � �BARRIERS IN CASES��: �Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.� �NEUTRAL FACILITATION��: �Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them � So many treatment plans have language that the parent may not understand. The plan might make reference to �fostering a positive parental relationship� � does the parent know what that means? The CMC is a time to make that very clear.� �NOTES��: Next slide

24. Informality vs. courtroom competency 7. Subpoena and prepare all witnesses, including the client 8. Ensure proper notice is provided to all parties & necessary caretakers 9.� Prepare and make all appropriate motions & evidentiary objections 10.� Present case-in-chief, present and cross-examine witnesses, prepare and present exhibits Ppointer: don�t forget voire dire of experts and wanna be experts 11.� Make opening and closing arguments as appropriate

25. 25 Cross examination In the Matter of Thomas Zawada, Arizona Supreme Court Ethics Opinion (7/1/04) �Prosecutor engaged� in a blistering xx of six defense mental health experts when he had no controverting expert testimony or mental health evidence��hired guns� xx for NGI defense.� Ordered: 6 month suspension + probation. Violations of 3 Ethical rules: competence, assertions made without basis in law or fact and conduct prejudicial to the administration of justice.

26. � Orders, law, and the integrity of the court 12. Prepare or help prepare proposed findings of fact, conclusions of law when they will be used in the court�s decision. Ppointer: IVE reviews 13. Review court orders to ensure accuracy & clarity and review with client when necessary PPointer: make sure your client fully understands the order and responsibilities 14.�� Take reasonable steps to ensure your client complies with court orders PPointer: what if you find out your client can�t comply or isn�t? 15.�� Consider and discuss with your client the possibility of appeal and file notice of appeal as appropriate. PPointer: watch out for frivolous appeals, what kind of balancing is required? Is there a way out? �

27. 27 Competent representation Facts: Appeal by Mother from TPR/ severance trial Lassiter & NCJCJ Resource Guidelines (1995) cited on importance of role of parent�s counsel Rt. to counsel by statute and due process guarantees of state and federal Constitutions AZ Case law: Ineffective counsel in TPR/severance may = reversible error Standard? Strickland v. Washington, 466 US 668 (1984) or ??? �Inquiry should focus on the quality of assistance required to satisfy due process�what is fundamental fairness in a particular situation�

28. 28 Donald W. Sr. v. Arizona Dept. of Economic Security, 215 AZ 199 (2007) Court Held: DNA to trial tactics that did not work; omitted useless acts; no second guessing on appeal. However in this case the record showed the following: no preparation by Mother�s counsel beyond appearing in court, no recent pre-hearing contact with client, no efforts to do so, no documentation of case plan compliance, no independent investigation, apparent unfamiliarity with the allegations of abuse/neglect; no witnesses; no preparation of client to testify; and �equally disturbing is counsel�s conduct casting aspersions on Mother�s diligence in complying with case plan or keeping sober�and counsel cross-examined Mother about maintaining contact with him; and �if Mother did not produce documentation of her participation in services, both he and the court would presume it did not exist��.. When counsel is ineffective, the entire adversarial process is undermined and what can appear to be clear and convincing evidence to support termination may be illusory.

29. �IF ALL YOU HAVE IN YOUR TOOL BOX IS A HAMMER, EVERYTHING WILL LOOK LIKE A NAIL�� M. TWAIN Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.Carolyn: will give a brief overview about the grant and the decision to hire case managers/court facilitators In 1994, Colorado received federal funds through the Family Preservation and Support Act for use in assessment of court handling of D&N cases, and to implement reforms to improve and strengthen this system. These funds have been administered by the Colorado State Court Administrator�s Office (SCAO) in collaboration with an advisory council of judges and magistrates, who have worked to set the �Court Improvement� project agendas for Colorado. The initial assessment phase of the project was completed in 1996, and a total of 70 recommendations were incorporated into the first and second year plans for implementation of Court Improvement efforts in the D&N arena. The basic components of implementation were divided into six broad categories: Supreme Court directives, case management models, statutory and rule changes, legal representation of children and parents, training, and miscellaneous. The Court Improvement continues to monitor the case management models and make recommendations to the Colorado Supreme Court.

30. A lawyer shall not reveal information relating to the representation of the client, unless the client gives informed consent, disclosure is impliedly given, or�

31. 31 Finding that fine line between confidentiality and candor to tribunal Facts: Motion for supervised visitation based on father�s alleged meth use F�s attorney arranged urinalysis for meth; drug screen showed marijuana only; Lab refused to screen for meth only or issue new report; at direction of attorney, tech cut off bottom portion of the report re: marijuana; partial report introduced as evidence F not using meth. At hearing on Motion, court asked �Is this this the whole report?� F�s attorney said �That�s what I was provided by the hospital; that's what I have judge�� And when judge asked if the report � was cut off?� F�s attorney said �That�s what I asked them to screen for�� and argued that the report was evidence that F not using meth. After argument, the court found that the report was not �competent� due to its apparent irregularities and ordered another screening. Criminal contempt filed, which was reduced to civil contempt and a fine Referred to South Dakota Board of Professional Conduct�.

32. 32 In re Wilka, 638 NW2d 245 (2001) South Dakota Supreme Court upheld public censure on the following grounds: While Wilka may not have directly lied to the court, he intentionally evaded the plain and understandable questions of the judge The requirement of candor towards the tribunal (RPC 3.3) goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright. Wilka�s intent to mislead the court is not mitigated by his concerns over his client�s right to confidentiality. The dilemma in which Wilka found himself was of his �own making�. �Options other than evading the questions of the court remained open to him.�

33. 33 ATTORNEY FOR THE CHILD GAL Youth Voice Statutory best interests Conflicts arise Case strategy: Youth voice or youth client??? Does the 12 year old control the case? Are you communicating? Are you listening?

34. 34 Do I owe the same duty to a child or teenager as an adult? Facts: child was removed due to DV and sexual abuse by mother�s bf. At removal, she told police/caseworker that the bf had touched her inappropriately & later recanted. After clarifying that what she said would be confidential, she told GAL, and said that she was OK and wouldn�t testify. Court took jurisdiction and reunification goal. A few months later she told caseworker about the sexual misconduct and that she had told her GAL DHS petitioned court to remove GAL due to conflict. Court denied based on privilege; DHS appealed. GAL asserted Rule 1.6. Ruling?????

35. 35 In re Christina W 639 SE2d 770 (2006) West Virginia Supreme Court of Appeals: This is a case where the duties of the attorney as a GAL extend beyond the typical attorney-client relationship but attorneys who represent children in these proceedings have a primary duty to protect the best interests of the child. RPC 1.6 (a) read with RPC 1.14 ��.The lawyer�s duty to maintain a normal client-lawyer relationship with the client� extends only �as far as reasonably possible��.GAL must also balance the child�s desire for confidentiality with the guardian�s duties to the court.� Accordingly we hold: While a GAL owes a duty of confidentiality to the client, this duty is not absolute. Where honoring the duty�would result in the child�s exposure to a high risk of probably harm, the GAL must make a disclosure to the court in order to safeguard the best interests of the child..� While disagreeing that RPC 1.6 applied as an absolute prohibition against disclosure of a confidential communication. Affirmed decision of Circuit Court denying DHHR�s motion to remove GAL because conflict had been removed by disclosure.

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38. 38 A lawyer may not communicate with a person represented by another lawyer  During the course of representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he/she knows to be represented by a lawyer in that matter unless he/she has he prior consent of the lawyer representing such other party or is authorized by law to do so. (NDRPC 4.2 Communication with person represented by counsel.)

39. 39 Ethics reminders does this ever happen here? (1) Case manager calls parent without getting permission from parent�s lawyer? (2) Case manager gets lawyer�s permission to talk to Mother to get contact info for grandparents and asks how she is doing with Section 8 application, tells state's attorney. state's attorney asks CM when she talks to parent to find out if it sounds like Mother will have housing by court date, as ordered by the court. (3) Mother�s lawyer calls case manager regarding her opinion of his client�s progress, without state's attorney permission.

40. �AN EFFORT TO�.�: Policy � Foster positive relations among professionals, parents and court Practice � Read court�s file, be aware of history and pending issues Example � Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child�s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example � set up visits between 3 sets of grandparents and extended family members Judicial Perspective � �BARRIERS IN CASES��: �Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.� �NEUTRAL FACILITATION��: �Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them � So many treatment plans have language that the parent may not understand. The plan might make reference to �fostering a positive parental relationship� � does the parent know what that means? The CMC is a time to make that very clear.� �NOTES��: Next slide �AN EFFORT TO�.�: Policy � Foster positive relations among professionals, parents and court Practice � Read court�s file, be aware of history and pending issues Example � Examples: 1. Mediating disputes between family members regarding termination (high conflict therapeutic mediation) 2. Allowing mental health/medical professionals to explain child�s needs in order to get buy in from parents as to treatment issues. 3. Setting up visitation plans between parents, grandparents, aunts, uncles, etc. Newton CMC example � set up visits between 3 sets of grandparents and extended family members Judicial Perspective � �BARRIERS IN CASES��: �Push people to get as concrete as possible, the treatment plan, for example, amy call for an alcohol assessment. Ct. Facil. Will push parties to say what program will be used, and how the parent will know where to go and when to go. Phone numbers are exchanged often.� �NEUTRAL FACILITATION��: �Conferences allow parents to ask a lot of questions regarding the pending issues at the time. Not a time to rehash entire history of case, but to make sure parents and professionals know what is expected of them � So many treatment plans have language that the parent may not understand. The plan might make reference to �fostering a positive parental relationship� � does the parent know what that means? The CMC is a time to make that very clear.� �NOTES��: Next slide

41. 41 North Dakota Commission on Legal Counsel for Indigents: Minimum Performance Standards Deprivation & Termination of Parental Rights Examples of Standards: 2.2 Other training & experience 4.2 Diligence & acting promptly 5.4 Attorney-client relationship: Incarcerated clients 7.2 Investigation & Preparation- Case plans 10.1- 10.2 Negotiations 13.1 Permanency 14.2 TPR - Preparation 14.4 TPR - Present client�s case 16.1 Case assignment termination

42. North Dakota Rules of Professional Conduct Preamble A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system & a public citizen having special responsibility for the quality of justice. A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer. CAROLYN: Review tools used by court facilitators to help make the D & N process go more smoothly so that children can be placed into a safe, permanent home as expeditiously as possible. Tools in a workbox that can be used as needed for prevention as well as remediation. A dual layer of tools � the Ct. Facil position is the main tool and what we use to make our positions most effective are our tools.CAROLYN: Review tools used by court facilitators to help make the D & N process go more smoothly so that children can be placed into a safe, permanent home as expeditiously as possible. Tools in a workbox that can be used as needed for prevention as well as remediation. A dual layer of tools � the Ct. Facil position is the main tool and what we use to make our positions most effective are our tools.

43. 43 The vast majority of ethics decisions and disciplinary action taken against lawyers involves violations of 3 Core Rules COMPETENCE CONFIDENTIALITY CONFLICTS OF INTEREST

44. Contact Information Remember to ask if there are any questions from the audienceRemember to ask if there are any questions from the audience