Boot Camp for Parental Defenders is now LIVE! Plus a Discount Code

New Online CLE!  You can now view the training Juvenile Court Boot Camp for Parental Defenders.

In this video Grant Dickinson of the PDA covers the basics of a parental defense case from shelter hearing to termination with lots of tips and tricks along the way.  If you are new to parental defense or just want to brush up on the basics this video is for you.

• Click HERE to view the program
• 1 hour of self-study CLE available
• $15.00 
• Use the discount code BOOTCAMP to view it for FREE until December 31, 2014

Not Everyone Has A Right To Counsel When Their Parental Rights Are Terminated

The National Coalition for a Civil Right to Counsel (NCCRC) is a coalition organized by the Public Justice Center that encourages, supports and coordinates advocacy to expand recognition and implementation of a right to counsel in civil cases--including dependency and termination of parental rights proceedings.

Most states provide a right to counsel in a dependency case or when parental rights are being terminated, but in some cases it is left to the judge's discretion or the right is qualified.  To see how the states stack up click HERE or on the map.

Motion and Memorandum to Vacate Appointments

One of the questions the Parental Defense Alliance is most frequently asked is, “under what circumstances can a party be appointed counsel?”

The statute that governs the appointment of counsel in child welfare cases is U.C.A. § 78A-6-1111

Simply it states that in order to be entitled to counsel, the case must be a state initiated Petition in which the party is indigent.  Indigent means that the party makes less than 150% of the U.S. poverty guidelines (See http://aspe.hhs.gov/poverty/14computations.cfm), or lacks the income, assets, and credit to obtain or finance counsel.

This conflicts with Utah Rule of Juvenile Procedure 37(d) which states that “Counsel may be appointed by the court for an indigent respondent who is a parent, guardian or custodian of the child…”  Counties are entitled to notice of all appointments and the county is entitled to a hearing.

We have recently added to our Forms bank a Motion and Memorandum to Vacate Appointments.  http://www.parentaldefense.org/Forms-Library

Being diligent in reviewing the applications for appointment of counsel will allow public defenders to serve that portion of the population that truly qualify for the assistance to decrease the strain on our public defenders.

If you feel as if an application for appointed counsel was inappropriately granted speak with your contract administrator or County Clerk to determine if they would like challenge the appointment.  As a note, it is the County that has the right to challenge the appointment, not the individual attorney and as such you must have your county’s authorization to represent them, or they must have their county attorney’s office challenge the matter.

Resources for Parents With Trauma Histories

The National Child Traumatic Stress Network has fantastic resources for children who experience trauma and recognizes that parents involved in the child welfare system have also likely experienced their own trauma.  Check out their webpage dedicated to Birth Parents with Trauma Histories and the Child Welfare System.

The following is an introduction to one of their pamphlets, Birth parents with trauma histories and the child welfare system: A guide for judges and attorneys (link available below):

Judges and attorneys who work in the child welfare system are well aware that many of the children in the system have experienced trauma; less well recognized is that the birth parents of these children often have their own histories of childhood and adult trauma. For example, research indicates that 30-60% of maltreated children have caretakers who have experienced domestic violence themselves. Past or present experiences of trauma can affect a parent’s confidence and ability to keep children safe, work effectively with child welfare staff, and respond to the requirements of the courts. Fortunately, trauma-informed services are increasingly available for both parents and children who need them. Trauma-informed services include mental health services offered by trained professionals that address specific reactions to traumatic events. By recognizing the potential impact of trauma on parenting, judges and attorneys can more easily connect parents with those services.   

If you are looking for additional resources for parents who experience trauma.  Below are some of the pamphlets available:

For Parents
For Child Welfare Staff
For Judges and Attorneys
For Mental Health Professionals
For Resource Parents
For Court-Based Child Advocates and Guardian ad Litem

Would You Like to Become Certified in Child Welfare Law?

As some of you may be aware the National Association of Counsel for Children offers a certification in Child Welfare law.  You can find more information about the certification HERE.

The Parental Defense Alliance is interested in bringing the NACC out to Utah to conduct a full day exam preparation training at little or no cost to our members.  This is an expensive training.  In addition, those interested must meet certain criteria, and pay $300 to apply, plus $350 to sit for the test.  The PDA is also interested in helping to defray the cost of these fees. 

Due to the large financial commitment, we would like to get a head count of those who are interested in becoming certified and participating in the training, which would most likely take place the Wednesday before the annual conference on April 22, 2015.

In order to sit for the exam you must meet the following criteria:

• 3 or more year practicing law
• 30% or more of the last three years involved in child welfare law
• 36 hours of CLE within the last three years in courses relevant to child welfare law
• A writing sample drafted within the last three years that demonstrates legal analysis of child welfare law.  This can be a pleading.

If you can meet these criteria and are interested in the exam preparation training, please email me at kate@parentaldefense.org by November 30, 2014.

Angela Fonnesbeck's Report on the NCADRC Conference

During my recent attendance at the National Child Abuse Defense and Resource Center’s 17^th Annual International Conference I was reminded of the ethical considerations and concerns that must be confronted in all matters involving abuse.

Each morning of the conference opened with a presentation on ethics, highlighting the importance of our ethical responsibilities to clients as we later sort through the facts and laws of the case at hand.

Throughout these presentations three areas in particular stood out as deserving of our attention,

1. The fully informed client:  A client is entitled to full disclosure from their attorney – whether appointed or privately hired.  This is our duty as lawyers.  The client has the right to know all the positive aspects of their case, as well as the pitfalls of their case.  The client has a right to know what happens next and the potential consequences of all legal options.  Utah Rules of Professional Conduct, Rule 1.4, requires that a lawyer, among other things, promptly inform the client of any decision or circumstance requiring their informed consent, keep the client informed about the status of the matter and promptly comply with requests for information.  Most of the presenters at this conference believe that a fully informed client had the right to know whether the attorney representing them will have any moral objections to the issues.  For example, if your client has been convicted of viewing child pornography will you be able to professionally represent them regardless of a personal bias? Utah Rules of Professional Conduct, Rule 6.2, dealing with the acceptance of appointments, specifically indicates that a lawyer should not avoid appointment unless the “client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship.                                                                                                               
2. Who can/should be present during attorney-client meetings:  If anyone is present during any meeting with your client, confidentiality is waived.   This is especially important when representing children whose parents are paying the legal fees.  While parents may want to sit in on meetings with the client, to allow them to do so would waive confidentiality and should be avoided.  The presenters believed that these exclusions from attorney-client meetings were critical, as the person paying the fee often believes they have control over the case – which they do not.   Also, the presenters believed an attorney was less likely to get the “whole truth” out of a client, especially a minor, if the parents were present.                                                       
3. It is our responsible conduct complete discovery:  As the legal expert in a case our clients are relying on us to fully and completely engage in discovery. This includes: (i) understanding all of the facts, including the facts from our client’s perspective and how we may prove those facts to be true; (ii) subpoenaing all medical records (labs, consults, follow-up visits), reading them to determine what is there and what is missing, and understanding them; and (iii) hiring experts.

Even if as attorneys we believe we fully understand our ethical responsibilities to our clients, these presenters served as a reminder that it should be a focus of our practice and representation.   It is a duty we owe our clients who put their faith and trust in us as legal professionals.

Information Regarding Unaccompanied Immigrant Minors

The following was an email sent out by the United States Citizenship and Immigration Service:

Dear Stakeholder:

U.S. Citizenship and Immigration Services (USCIS) is providing an email address for juvenile courts and child welfare professionals to submit general questions about the Special Immigrant Juvenile Program. You can also submit requests for a USCIS representative to talk to your organization about the program. The address is: USCIS-IGAOutreach@uscis.dhs.gov.

Note: Please do not submit case-specific inquiries to this email address. For inquiries about specific cases, call the USCIS National Customer Service Center at 1-800-375-5283. The TTY number (for deaf or hard of hearing) is 1-800-767-1833.

Background

Some foreign-born children present in the United States may qualify for humanitarian immigration protection because they have been abused, abandoned or neglected by a parent. Special Immigrant Juvenile (SIJ) status is a classification that may allow a vulnerable child to immediately apply for status as a lawful permanent resident.

SIJ classification is unique in that specific state court findings are required in order for USCIS to determine eligibility. The juvenile court makes factual findings (based on state law) concerning the care, custody and best interests of the child.

Additional Resources

The following information and resources about SIJ status are available at www.uscis.gov:

*        Immigration Relief for Abused Children: Information for Juvenile Court Judges, Child Welfare Workers, and Others Working with Abused Children  (Brochure)

*        Special Immigrant Juvenile Status: Information for Child Welfare Workers  (Flier)

*        Special Immigrant Juvenile Status: Information for Juvenile Courts  (Flier)


Kind Regards,

USCIS Public Engagement Division

FREE Online Training from drugcourtonline.com

The National Drug Court Online Learning System has a great FREE online learning tool.  The courses that are offered relate to drug courts but the information on drug testing and addiction can be relevant to child welfare cases.

You can sign up by at www.drugcourtonline.org and by following these instructions.

If you try out any of the courses let us know what you think!

Video Introduction to Child Welfare Mediation for Parents

Did you know that there is a video produced by the Utah State Courts that explains the Child Welfare Mediation Program to parents?  Have you used it in your practice?

If not, parent's can easily view it on YouTube below or get a copy on CD from the Mediation Office.  If you want a hard copy let us know and we will help connect you to get one.

Utah Supreme Court Denies Biological Father's Appeal for Child Custody

On November 4, 2014, the Utah Supreme Court issued an opinion in Boulden v. Doe, denying a biological father's petition to intervene in the adoption proceedings of his now three-year-old child for "failing to preserve his legal rights as a father by filing a paternity affidavit within the time prescribed by Utah Code section 78B6-121(3)."

You can read the entire opinion HERE.

KSL.com also reported the story HERE.

Robert Latham's Report on the NCADRC Conference

National Child Abuse Defense & Resource Center 2014 Conference Report

“General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence -- especially Rule 702 -- do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

--Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (emphasis supplied); see also Utah Rule of Evidence 702 and Advisory Committee Note.

The Daubert case involved an allegation supported by expert testimony that a controlled substance caused a birth defect, and thus relates to many child abuse claims underlying child welfare cases. The National Child Abuse Defense & Resource Center (www.falseallegation.org), a non-profit volunteer organization, has been organizing conferences every two years to help legal professionals confront and debunk “junk science” presented in support of child abuse allegations.

The NCADRC assembled an impressive lineup of speakers, some of whom have been so successful in frustrating the efforts of state attorneys to traumatize innocent children and families with false allegations of child abuse that they have been maligned at a National District Attorneys Association conference as members of an “axis of evil.”

Did a child witness correctly recount an incident? Elizabeth Loftus, Ph.D. and Maggie Bruck, Ph.D. may have valuable insights calling into question the reliability of and influences that can impact the witnesses’ memory. Was the Reid Technique of interviewing and interrogation used to question your parent client? The work of Richard Ofshe, Ph.D. may explain how your client was coerced into a false confession.

How can the trier of fact distinguish between a non-accidental injury suggesting child abuse, or a differential diagnosis or “mimic” -- a medical condition that can often be misdiagnosed as child abuse and neglect? Patrick Barnes, M.D. offers his insights as a pediatric radiologist in this era of evidence-based medicine to explain the difference. Is a child’s failure to thrive evidence of parental neglect, or caused by an inborn error of metabolism, such as fructose intolerance, galactosemia, or phenylketonuria? The expertise of Piero Rinaldo, M.D. can inform the inquiry.

Counsel appointed to represent indigent parents facing allegations of child abuse should consider retaining experts to respond to the state’s experts. Counsel may apply for reimbursement of the expert from the Parental Defense Alliance of Utah and the Office of Child Welfare and Parental Defense.

I am grateful to the PDA of Utah for sponsoring my attendance at this conference, and strongly recommend that other parental defenders contact the NCADRC to receive notice of its future conferences, which convene every two years.