Save the Date for the 2016 PDA Conference!

Mark your calendars!  The Annual Conference of the Parental Defense Alliance of Utah will be on

April 28-29, 2016

We look forward to seeing you again!

Want the Handout from the E-Filing Training?

The Court provided us with a nice handout at the E-Filing Training last Friday, November 6, 2015.

They have put together a Power Point presentation with screenshots that is specifically for defense counsel.  As of the date of the training it was not available online.  The handout included 42 pages of full color slides from the Power Point presentation.

It's a great reference and would allow you to even write some notes on it as you perfect the E-Filing process.

If you are interested in a hard copy, email Kate Hansen at kate@parentaldefense.org and leave your name and address.  We will stick one in the mail for you.

Copies are limited and we will not produce more once they are gone.

Proposed Enhancements for the CARE E-Filing System

We had a great turnout for our E-Filing training last Friday, November 6, 2015.  In addition to some general information about the E-Filing system CARE, Brody Arishita of the courts provided live demonstrations and explanations of various aspects of how to perform certain actions in the system.

While the system is live now (in other words you don't have to wait until December 1, 2015 to begin E-Filing on your cases), there are still enhancements that would make the system easier.  The following is a list of enhancements that the PDA is passing onto the E-Filing team for consideration.  If you have additional items, you can comment here or contact Kate Hansen at kate@parentaldefense.org.

PROPOSED ENHANCEMENTS TO THE CARE E-FILING SYSTEM 

1.  Rather that simply search by the name of the child, it would be helpful for parental defense attorneys to be able to search by parent name.

2.  When adding difference cases/children to a particular filing, it would be helpful to have a check box available, rather than adding them manually.

3.  It would be helpful if the contact information for counsel and state workers were available in the system, such as GALs, AGs or caseworkers.

4.  On the search page it would be helpful to be able to change the default from A-A to A-Z.

5.  On the MyCalendar page, it would be helpful to be able to search for a date range rather than just look at one day at a time.

6.  A file repository in the system would be helpful, particularly when there are multiple users in a firm.

Thanks to all who attended and especially the court staff--Katie Gregory, Krista Airam, and Brody Aristita-- for coming!

Meet Jim Smith - Board Member for the 3rd Judicial District

As an attorney at Lokken and Associates, Jim Smith practices parental defense in child welfare cases and family dependency drug court in Utah’s Third District.  He also has extensive background in family law, criminal defense, and bankruptcy law.  In his position with the Parental Defense Alliance of Utah, Jim is particularly interested in giving newcomers to child welfare law the tools they need to quickly become confident and effective practitioners in a field of law that is often uniquely challenging.

Jim loves kids (he has five of them!), sailing, camping, and studying maritime and Utah history.  A native Californian, he now lives with his family in Lehi where he serves as cubmaster in his local Cub Scout pack and continually adds to his collection of Titanic books and memorabilia.

The PDA has New Board Members!

The Parental Defense Alliance is excited to introduce our new board.  As previously announced we are moving to a board that will represent the various regions and judicial districts of the state.  After receiving a number of qualified applicants, we have offered positions to Mark Tanner and Jim Smith. The board and it's representation now looks like the following:

Region Name	Judicial Districts	Current Board Member Representative
Northern	1 and 2	Carol Mortensen
Salt Lake	3	Jim Smith
Central	4	Grant Dickinson
Southern	5 and 6	David Boyer
Eastern	7 and 8	Mark Tanner

We look forward to tapping into the expertise and ideas of this new expanded board as we continue to serve the parental defense attorneys in the state of Utah.  

Tough Love is Streaming on PBS this Month!

For those of you who may not have been able to join us for the screening of Tough Love in June, you can watch the film for the month of October on PBS.  Here's the LINK.

This a a great film about the struggle parents face in trying to get their kids back after removal.  One attorney who saw this in June said "Every AG, GAL and parental defense attorney should see this film!"  We couldn't agree more, and hope you take the time to watch.

SHORT SYNOPSIS OF FILM

Offering a rare look at the inner workings of the American child welfare system, Tough Love chronicles the lives of two parents—one in Seattle and one in New York City—as each fights to be reunited with children taken out of their custody. Through intimate, verité footage of both families, we witness first-hand the complex and daunting bureaucracy of America’s family courts. Moreover, we come to understand the powerful role poverty and prejudice play in keeping parents and children apart— and the challenges parents must overcome in order to put their families back together.  The film is approximately 85 minutes.

2015 Annual Report of the Parental Defense Alliance of Utah

The Parental Defense Alliance of Utah has just released its Annual Report for the 2014-2015 State Fiscal Year.  You can read the full report HERE.

We have also made past reports back to the year 2011 available on the website, which you can find HERE.

Registration for the E-Filing Training is now OPEN!

Registration for the E-Filing Training is now open.  There are two registration options:  In-Person or Webcast.  Please make sure you register for the correct one.

Court staff will be present to present on the E-Filing process and to answer questions.  The deadline for mandatory E-filing is December 1, 2015 so you won't want to miss this chance to prepare.  3 hours of CLE will be requested from the Utah State Bar.

Juvenile Court E-Filing for Parental Defenders

November 6, 2015

Breakfast and Registration 8 a.m. to 9 a.m.

Training and Webcast:  9 a.m. to 12 p.m.

Miller Professional Development Center
9750 S 300 West Sandy, Utah

National Juvenile Defender Center Conference will be in Salt Lake City!

For those of you interested:

The National Juvenile Defender Center is holding their Annual Conference this year in Salt Lake City on the weekend of Oct. 23-24, 2015, Salt Lake Hilton Hotel. Meals and conference registration are FREE but the deadline to register is this Friday, September 25, 2015. Online registration HERE.

The main conference sessions are on Friday and Saturday, Oct. 23-24 with an optional 90 minute closing session on Sunday morning, Oct. 25. Topics include: effectively representing our delinquency clients in Juvenile Court, discovery/research tools, defense strategies, case law discussion, juvenile probation issues, creative lawyering, and other interesting topics. Attorneys, law professors, and juvenile court experts from all over the nation will be in Salt Lake that weekend speaking to us. Utah Bar CLE credit is pending. The Hilton Hotel is the conference site. Rooms are at discounted rate or, of course, you can commute each day to the conference.

Courtroom War Stories: WWJ(Julie)D?

The following was shared by PDA member Colleen Coebergh:

I wondered if you would consider putting this tale on the blog, because I love this story, a true story about one of our best and brightest, Julie George.   

Julie was called in to do a shelter hearing, and was representing alleged Dad.  Tiny infant, subject of the case, was being clutched tightly by foster mom who almost had a death grip on the adorable little bambino.  Incarcerated Mom, through counsel, indicated that she was prepared to swear that Julie's client was in fact father.  Alleged father asserted he was willing to swear the same.  A request was made the Court adjudicate paternity immediately.  The Guardian objected.  She wanted DNA testing.  The mom could just "say" that Julie's client was Dad, and he might not be biological father at all.   

The Court inquired, "well yes, but that's usually the case, what with Moms being in the best position to name Dads.  And besides, aren't men married to the Mom presumed to be legal father, irrespective of any notions of genetics?"  The Guardian persisted that if the Court adjudicated on their say-so alone, that man may weasel his way into the litigation, into the child's life, and that shouldn't be.  

Then she argued that guy didn't even have a right to court appointed counsel (which Julie was at the time) unless and until he established legal paternity.  (The old catch-22.  You can't have counsel until you establish legal paternity, and you can't establish legal paternity without counsel because you don't know what you're doing...)   

Without missing a beat, Julie stood up and said the alleged father just handed her a nickel, she considered that a "retainer agreement," and she was working for him for that nickel until paternity was established.  Then, she launched in the the smoothest, slickest argument about the State's efforts to vex the man in establishing paternity long enough to then turn around and argue that the child was bonded with the foster parents to the degree the child should not be moved.    

Held by the Court:  Paternity established.  DCFS has 48 hours to walk through Dad's house, and absent demonstrable safety concern, infant to be placed with Dad.  She earned just a bit over 3 cents an hour for that argument, and my undying admiration.  When frustrated, tired and lost in our efforts to open a can of whoop-ass on the powers that be, we should all ask, "WWJ(Julie)D?"   

Anyone else have a good courtroom war story to share?

Grant Dickinson's 10 Commandments for Cross Examination

On September 1, 2015, PDA board member Grant Dickinson presented at the Court Improvement Program Attorney Skills Training on the topic of Cross Examination.  Above are a copy of his slides that include helpful tips on how to prepare for cross examination of experts.

If the above slides don't load, try THIS LINK.

NY Times Article and Video on Shaken Baby Syndrome

The New York Times recently published an interesting article and video called Shaken Baby Syndrome: The Diagnosis that Divides the Medical World, which shows how the diagnosis has changed in the past few decades.

You can find the article HERE.  There are several other shorter videos within the article that are worth checking out as well.

Are You Ready for E-Filing? No? SAVE THE DATE!

E-Filing in the Juvenile Courts will be mandatory in December of this year.  To help you get ready we have arranged an E-Filing Training with the courts especially for parental defenders.  Mark your calendars for:

November 6, 2015 @ 9 a.m. to 12 p.m.

The event will be available both live on the Wasatch Front and via webinar for those unable to attend in person.  Registration will open soon and we will be applying to the Utah Bar for 3 hours of CLE credit.

In anticipation of the event, please make sure that you already have a CARE login as it will be mandatory for all participants.  If you don't have a CARE login, you can get one HERE.

Neil Skousen's Summary of ADA argument before the Supreme Court

Last week Neil Skousen argued before the Utah Supreme Court presenting the issue how the ADA applies in child welfare proceedings.  He did a great job!  Below is a summary he sent us after the argument.  Thanks Neil!

Update for Utah PDA Members:

I just completed oral arguments before the Utah Supreme Court on September 2 regarding whether the Americans with Disabilities Act (ADA) applies to disabled parents receiving DCFS services at Disposition, during the Reunification/PSS service plan period, Permanency Hearings, and at Termination of Parental Rights proceedings/trial. I appreciate the support from Utah PDA and others who came to the Court to observe my arguments or listened on-line.

As a summary, I represent a disabled mother whose parental rights were terminated to her 7-year old daughter by the juvenile court because the court didn't want to give the mother more time to overcome her parenting deficits due to her mental and physical disabilities. This is a case of first impression in Utah (i.e., Utah's appellate courts have not ruled on this Americans with Disabilities Act/Child Welfare issue before). I originally filed this case with the lower Utah Court of Appeals. In an unusual move, the Court of Appeals voted to certify my client's case up to the Utah Supreme Court due to the importance of this parental rights issue statewide. The Court should be issuing its written decision within the next 2 to 6 months.

It's interesting to note that the State and Guardian ad Litem conceded, in oral arguments, that the ADA likely applies to Termination of Parental Rights proceedings. At the trial level, and over the past several months of briefing, the State and Guardian ad Litem have argued that it did not apply. But the federal DOJ and HHS Departments have issued reasoned opinions, historically and again this year, that the ADA does apply throughout DCFS services, programs and activities -- including TPR Proceedings/Trial. Your client's disabilities and requests for reasonable accommodations in the DCFS service plan should be raised by parental defense counsel at the Disposition Hearing, modified if necessary during the Reunification Services (or PSS) period, and definitely raised again at the Permanency Hearing and, if necessary, at the TPR trial.

Thank you!

Neil Skousen
Attorney
Orem, Utah
www.neilskousenlaw.com

Should Children Stay with their Homeless Parents?

Hawaii News Now recently shared a story about children and homelessness.  You can find the story HERE, which includes a video.

Come Hear Neil Skousen Argue before the Utah Supreme Court

As many of you might remember at the Annual Conference, we had a session on how the American with Disabilities Act intersected with Child Welfare.  Neil Skousen shared some comments about a pending appeal on the topic with the Utah Court of Appeals and subsequently shared his brief.  His case has since been certified to the Utah Supreme Court.

This is a hot topic across the country as the DOJ and DHHS recently released a technical assistance to assist child welfare agencies.

If you are interested in hearing the oral arguments they have been scheduled for the time and date below.  You might also be able to hear the argument live using the court's link HERE.  Good luck Neil!

Wednesday, September 2, 2015

9:00 a.m.

Supreme Court of Utah

Matheson Courthouse

450 South State Street, SLC, UT

New Technical Assistance from HHS and DOJ on Parents' with Disabilities

In the wake of the finding by the United States Department of Justice (DOJ) that the Massachusetts Department of Children of Families had violated a mother's rights under the American with Disabilities Act, the United States Department of Health and Human Services and the DOJ have issued a joint 18-page technical assistance to helps child welfare agencies and courts ensure that the rights of parents' with disabilities are protected.

The recommendations in the technical assistance include the following principles:

Individualized treatment.  Individuals with disabilities must be treated on a case-by-case basis consistent with facts and objective evidence.  Persons with disabilities may not be treated on the bases of generalizations or stereotypes.  For example, prohibited treatment would include the removal of a child from a parent with a disability based on the stereotypical belief, unsupported by an individual assessment, that people with disabilities are unable to safely parent their children.  Another example would be denying a person with a disability the opportunity to become a foster or adoptive parent based on stereotypical beliefs about how the disability may affect the individual's ability to provide appropriate care for a child. 

Full and equal opportunity.  Individuals with disabilities must be provided opportunities to benefit from or participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities.  This principle can require the provision of aids, benefits, and services different from those provided to other parents and prospective parents where necessary to ensure an equal opportunity to obtain the same result or gain the same benefit, such as family reunification.

The Parental Defense Alliance recommends that are parental defense attorneys familiarize themselves with the substance of this report so that they can seek the necessary accommodations for their clients in the appropriate circumstances.

You can read the full technical assistance HERE.

The PDA is Looking for New Board Members

In an effort to improve the organizational structure and communication with parental defense attorneys state-wide, the Parental Defense Alliance of Utah (PDA) has decided to open up additional board member positions.

The Parental Defense Alliance has divided the 8 judicial districts into 5 regions.  Each region is to be represented by a board member.  The regions are as follows:

Region Name	Judicial Districts	Current Board Member Representative
Northern	1 and 2	Carol Mortensen
Salt Lake	3	David Boyer
Central	4	Grant Dickinson
Southern	5 and 6	Open
Eastern	7 and 8	Open

DUTIES

As a representative of a region, each board member fulfills the following duties:

1.     Liaison with Members.  The PDA seeks to keep in contact with those attorneys who represent parents in Utah’s juvenile courts.  We recognize that there is occasionally some turnover, or individual attorneys encounter circumstances in which they would like some input.  A PDA board member will be the contact person for members within their region to help members find answers and resources for their cases.

2.     Liaison with Court Clerks.  Each PDA board member will also work to stay in contact with the Court Clerks in their judicial districts.  As problems and issues arise or new contract attorneys are hired, the board member can help the PDA stay abreast of changes within each judicial district.

3.     Lunch CLEs.  Each board member in encouraged to assist in the planning of at least one lunch CLE for their region per year.  The PDA Executive Director will provide all the resources and help of the PDA in setting up registration, accreditation and hosting of each event.  Board members should help find topics, recruit speakers and promote the events.

4.     Observe court.  Board members are encouraged to observe the court rooms of the judges in their region and provide feedback to the PDA on problems or ideas that can be shared with all parental defense attorneys.  Through observation, board members will be able to identify topics for trainings that can benefit all members around the state.

5.     Blog.  Board members should contribute a blog post on a topic of interest at least once a month.  Blog posts are not intended as law review articles, but short synopsis of topics and resources that are available on state and national levels.  Such topics can include:

·       Legal, legislative, case law updates

·       Best practices for parents attorneys

·       Available services in the community

·       Local and national news items in child welfare

·       Practice tips and tricks

BENEFITS

The following are the benefits provided to PDA board members.

1.     Free entry to all PDA events including CLE hours

2.     Up to five hours per month in compensation for time spent on PDA duties at $80 per hour

3.     Reimbursement for miles traveled on PDA business

4.     Rub shoulders with parental defense attorneys from around the state

5.     Help improve the practice of child welfare law in Utah

If you are interested in serving in one of the open board member positions please contact Kate Hansen at kate@parentaldefense.org.  Applications will be accepted until AUGUST 31, 2015.

FAQ

1.     Do I need to live in a region in order to be the board member representative for that region?  No.  But preference will be given to those who live in the region.

2.     How long do board members serve?  We anticipate that board members will serve from September 2015 to September 2016.  At that time we will either keep the current board or have everyone reapply.

New Legislation In Washington Could Help Keep Families Together

New legislation has been introduced in Washington by Democratic Senator Ron Wyden of Oregon, that would allow states to use foster care money to keep kids at home rather than in the system.  The Family Stability and Kinship Care Act (the "Act"), would allow states more flexibility in using Title IV-E funds for family support services to help keep families together. 

You can read as summary of the proposal, as well as, what Utah's Senator Orrin Hatch and Ann Williamson of the Utah Department of Human Services had to say about the Act HERE.  Additional coverage of the Act can be found HERE and HERE.

Webinar: "Pot, Parenting, and Government Intervention"

For those of you who might be interested, there is a webinar available through the ABA called "Pot, Parenting, and Government Intervention."  The webinar was originally held on May 18, 2015, but you can download and listen HERE.

The following is a summary description of the broadcast:

This webinar was offered on May 18, 2015. While marijuana cultivation, sale, and use remains illegal under federal law, there seems to be forward momentum to de-criminalize marijuana in a number of states (from de-criminalization down to parking violation level offenses, to legalized medical or even recreational use), the experience of front-line lawyers and advocates for children and parents involved in the child welfare system suggests that for the populations they serve (poor and disproportionately of color), marijuana use by parents still triggers drastic government intervention, including the removal of children and even the possible termination of parental rights. Why has a seeming broader tolerance for marijuana not translated to these systems? What are the equal justice issues involved? Is this reflective of the "criminalization of poverty"? What are the social and economic costs? The panelists for this webinar address these questions as well as many of the practical issues regarding marijuana and the child welfare system, both in states that have de-criminalized marijuana and in states where it is still illegal.

Medical Child Abuse

The New York Times, recently published an article on "medical child abuse" called The New Child Abuse Panic.  The term can be applied to parents who disagree with a doctors diagnosis, procure excessive or necessary medical procedures for their children, and has even be used in reference to Munchausen syndrome by proxy.  You can read the NYT article HERE.

New Timeline for E-Filing and Survey

The Juvenile Court has updated the implementation timeline for the mandatory e-filing.  The new date is December 1, 2015.  This will mean that all attorneys will be required to file their documents with the court (through CARE) beginning on December 1, 2015.

If you currently do not have a CARE login, please contact your the court administrator in your district.  See more information HERE.

There will be some training on e-filing at the CIP Attorney Skills Training on August 31, 2015.  More information on that HERE.

The Parental Defense Alliance would also like to host a training on e-filing specific to parental defense attorneys.  If you are interested, please fill out the following SURVEY.

June is National Reunification Month

June is National Reunification Month and the ABA has been celebrating by identifying "Reunification Heroes."  These are the workers on the front lines, the parents who fight their way back to their kids and all those who support them.  You can read more about this year's Reunification Heroes HERE.

New Civil Rights Decision Involving Child Welfare: Kirkpatrick v. County of Washoe

On July 10, 2015, the Ninth Circuit found that a caseworker and a supervisor could be held liable for removing a two-day-old newborn from its mother in the hospital without a court order.  Even though the mother had a drug problem and the defendants had not been trained in the law requiring a court order, they were not entitled to qualified immunity.

You can find a copy of the decision HERE.

Registration is OPEN for the CIP Attorney Skills Training

The Court Improvement Program Steering Committee invites you to register for the 2015 CIP Attorney Skills Training. 

This is a complimentary 2-day training designed specifically for Utah's child welfare attorneys. We have an excellent program planned that includes national and local presenters who will address the following topics:

• Juvenile Court eFiling, including a live demonstration, online training resources, and one-on-one assistance at our eFiling lab
• Trauma-informed practice as it relates to children, parents, and YOU
• Ethics - Conflicts of Interest
• Direct and cross examination of expert witnesses
• How to identify the perpetrator
• Film screening of the documentary Tough Love http://www.toughlovefilm.com/

A final agenda will be distributed prior to the training. CLE approval pending. 

Date

The training begins Monday, August 31st at 10 am and ends on Tuesday, September 1st at 3 pm. 

Registration:

Registration closes August 7th, but register soon to ensure hotel room availability.

To register online, click here or paste this link into your URL bar: 

https://utahcip.wufoo.com/forms/2015-cip-attorney-skills-training-registration/

Lodging:

Zermatt Resort, 784 West Resort Dr., Midway, UT 84049

https://zermattresort.com/

Lodging is complimentary and available on the following nights:

Sunday, August 30th --  only for participants who must travel more than 50 miles from their home office. 

Monday, August 31st -- available for ANY PARTICIPANT regardless of distance they must travel.

**Please do not contact the hotel to reserve lodging. Instead, indicate on the registration form the nights you will need lodging and you will be included on a rooming list.

Travel

Mileage reimbursement will be provided. Complimentary parking is available on-site. 

If you have any questions, feel free to contact me at gabriellaa@utcourts.gov or (801) 578-3939.

On behalf of the CIP Training Steering Committee, we look forward to seeing you in August!

US Supreme Court: “Children’s Reports of Child Abuse are Non-Testimonial and Not Subject to Confrontation.”

On June 18, 2015, the Supreme Court of the United States decided the case of Ohio v. Clark.  Because this case has implications for attorneys practicing child welfare law, Grant Dickinson of the PDA has created the following summary:

Clark had sent his girlfriend away to prostitute and while she was gone cared for her young children. Her son reported to a teacher that Clark had abused him. At trial Clark unsuccessfully sought to exclude the child’s statements to the teacher because the admission of the statement violated his right confront the witness against him. The trial court denied his motion and he was convicted. The Ohio state Supreme Court reversed the conviction. Ohio appealed.

The Supreme Court reversed the ruling of the Ohio Supreme Court finding that the child’s statements to the teacher were not testimonial in nature and the primary purpose of the communication was not to establish or prove past events for later prosecution; therefore not subject to the confrontation clause of the sixth amendment. This was reinforced by the ongoing emergency perceived by school employees and whether they could release the child to Clark at the end of the day. The Court further stated, “statements by very young children will rarely, if ever, implicate the Confrontation Clause.”

How this applies to child welfare. We are often confronted with statements of children being used against our clients. This newest ruling weakens our grasp at the confrontation clause as a way to exclude such statements. This case coupled with Utah statute U.C.A. 78A-6-115(6), which allows for child’s statements to trusted adults as exceptions to the prohibition against hearsay, limit our ability to cross examine children thus allowing children’s hearsay statements as testimony to be used against our clients.

Full Opinion Available at http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf

Tough Love Documentary

On Friday, June 5, 2015, we held the screening of the documentary film Tough Love at the Gateway Theaters in downtown Salt Lake.  In attendance was the filmmaker Stephanie Wang-Breal and Retired Judge Patricia Clark from Seattle, Washington who appears in the film.  They offered great insight and advice on how to improve the experiences of families in juvenile court.

We have received great feedback from the event.  One attorney even told us that every judge, AG and GAL needs to watch the film!  We feel the same.  

There are two upcoming opportunities to see the film.

July 6, 2015 on PBS's POV program

On August 31 - September 1, 2015 

during the Court Improvement Skills Training

You can find a discussion guide for the film HERE.

Oregon Lawmakers Propose Alternative to Prison for Non-Violent Offenders with Kids

In an effort to keep families together Oregon is looking at giving judges discretion in sentencing when the offender has custody of children.  You can read about the program HERE.  What do you think?  Does Utah need something like this?

Pending Utah Appeal on the Americans with Disabilities Act

At the Annual Conference one of the sessions was on the applicability of the Americans with Disabilities Act in Child Welfare Proceedings.  Many of you expressed interest in reading Neil Skousen's briefs in the appeal he has pending on the issue.

Neil has shared with us the Trial Brief in Support of Application of the Americans with Disabilities Act to Utah Child Welfare Cases and this Proceeding and the Brief of Appellant filed with the Utah Court of Appeals.  He would like you to know:

PDA members/attorneys may find this ADA research and pleadings helpful in their own child welfare cases throughout Utah Juvenile Courts. Although we raised the ADA or disability issues at permanency and termination proceedings, the ADA should be raised by parental defense counsel as early as possible in the case such at disposition, at the beginning of the reunification services portion of the case, or if services are being modified then somewhere in the middle of the reunification services portion of the case.

Thanks, Neil!