Why Does Advocacy Matter?

We are pleased to be able to share with you a post by our first guest blogger, Jill M. Katz. Ms. Katz is a sole practitioner in the area of Family Law in Kansas City, Missouri. She is a frequent lecturer in the areas of mediation, family and juvenile law. She is currently the Chair of the Missouri Bar Juvenile Courts and Law Committee and in her second term on the Executive Counsel of the Missouri Bar Family Law Section. She was recently honored as the 2014 Volunteer Attorney of the Year by Jackson County CASA.  

by Jill M. Katz

JMK Headshot

The law in Missouri makes reunification with parents the focus in the majority of cases filed alleging abuse or neglect. While children are in foster care, their foster parents provide for their needs. CASA and other Guardians ad Litem advocate for the child client to ensure all of their needs are met. The needs of the child go beyond ensuring that the child has the right therapist, dental and doctor appointment or has appropriate school resources.  One of the most important needs the child has is for the parent to remedy the cause of the removal of the child. That means that the Guardian ad Litem must also ensure that the entire family has their needs met. The advocate must consider what may be needed for the child to safely return home to their biological family. The advocate then must work just as hard to ensure that the tools are provided to the parents so that if/when reunification occurs, the reunification will be successful.

A parent’s attorney works at the direction of a parent. The parent’s attorney cannot ethically ask the Court to order their parent client to engage in services, unless the parent allows the attorney to ask for those services. That is the attorney’s job – asking for what the parent wants to occur.  Consider this, if no one asks for the parents to engage in services directed toward reunification, months may go by and appropriate services are not even offered. Six months after adjudication of the abuse or neglect, suddenly the parent wants to engage in services. While that is great, you have lost six months of services. Identification of appropriate services and asking for participation in these services, and possibly even getting a court order for the services, may encourage the parent to engage early in the process. Engagement in the process by the parent early in the litigation will lead to a greater chance of successful and timely reunification. As time passes and the parent who was offered appropriate services fails to provide evidence that the child can safely reunify, then the child is in a position to move toward permanency. The offering of appropriate services from the beginning of the case now becomes an element that will help achieve timely permanency for the child.

This kind of advocacy takes commitment to the process. It takes commitment to ensuring that laws are followed. It takes commitment to identify the right service provider and the right type of services that will be needed to provide the parent the ability to learn to provide a safe and stable home for the child.

Nothing a Guardian ad Litem does will ensure that a parent will accept and utilize the tools that are made available to them to aid in reunification with their children. But if the Guardian ad Litem has advocated for the provision of these services, the child either gains a parent who provides a safe and stable home, or acquires facts that will allow for a permanent placement  sooner rather than later.

The bottom line is that advocacy for a child is advocacy for the family. And advocacy does matter.

When Does Corporal Punishment Cross the Line?

by Claire Terrebonne, CASA Staff Attorney/Guardian ad LitemClaire3

Leave it to the NFL to bring issues that we in the child welfare field deal with daily to the mainstream media—domestic violence (surely a topic of future blog posts), violence in general, drug use, and . . . the great spanking debate.  Since super-star Minnesota running back Adrian Peterson was indicted in September on child abuse charges for allegedly whipping his 4 year-old son with a switch, corporal punishment has been a recent hot topic of conversation.

Corporal punishment in general is a disciplinary approach involving the application of physical pain or discomfort in response to undesirable behavior.  It ranges from slapping a hand or bottom to whipping with a belt or paddle, to perhaps even forced exercise.  One interesting aspect of the corporal punishment debate is the disparity between its social and legal acceptance and the criticism and disapproval from some in the pediatric medical community and other child welfare professionals.

Because of serious concerns regarding the negative effects of corporal punishment, its limited effectiveness, and its potential to escalate into abuse, the American Academy of Pediatrics (AAP) takes the position that certain forms of physical discipline should never be used, e.g. striking a child with an object or on parts of the body other than the buttocks, shaking or jerking a child, or delivering physical discipline in anger.  For the same reasons, the AAP also recommends that parents be assisted and encouraged to use disciplinary methods other than spanking.  Critics of corporal punishment (including the AAP and the American Academy of Child & Adolescent Psychiatry) cite studies suggesting that spanking models aggressive behavior as a solution to conflict and has been associated with increased aggression in preschool and school children and higher rates of physical aggression, more substance abuse, and increased risk of violence and crime when used with older children and adolescents.  Corporal punishment, absent more severe child maltreatment, has even been associated with mood, anxiety, and personality disorders.

Despite these concerns, surveys over the past decade indicate that anywhere from 65 up to 90 percent of families report at least spanking their children at some point. The legal framework in the United States appears to be consistent with this social approval of physical discipline.  Most states, by statute or common law, expressly permit “reasonable” corporal punishment by parents, other caregivers, and even schools.  No state has expressly outlawed it (although, interestingly, it’s been abolished in over 30 countries).  Missouri law expressly excludes “discipline including spanking, administered in a reasonable manner” from the definition of child abuse.  See RsMO §§ 210.110(1); 568.060.1(1), .9.  (Note, however, that the use of corporal punishment again foster children is prohibited. 13 CSR 35-60.030, .050.) Similarly, in Texas, where charges of injury to a child are pending against Adrian Peterson, the use of force by a parent or caregiver against a child is justified when that caregiver “reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” Tex. Penal Code § 9.61; see also Tex. Family Code § 151.001(a), (e) (allowing a parent and certain caregivers to use corporal punishment for the reasonable discipline of a child).

So what is “reasonable” physical discipline?  Or, asked another way, when is corporal punishment unreasonable and when does it become abuse?  In Missouri, physical discipline crosses the line to abuse where there is resulting harm to the child.  In re M.N.J., 291 S.W.2d 306, 312 (Mo. App. W.D. 2009) (“Spanking with a belt is not physical abuse when done in a reasonable manner and does not result in harm to the child.”)  The clearest indicator of “harm” is physical injury, e.g., bruises, lacerations, abrasions, welts, choke marks, burns, bites, and fractures.  Without some physical manifestation of harm, abuse resulting from physical discipline may be hard to prove.  For example, a child’s expressed fear of her parents may be insufficient evidence of “harm” or unreasonable discipline.  See id. at 312-314 (reversing and remanding a finding of physical abuse where, despite an admission of disciplining the child with a belt, an observation of a red mark on the child’s bottom, and the child’s expressed fear of returning to the parents’ care, there was no testimony that the child suffered from bruising as a result of the belt or that the spankings were administered unreasonably).  Determining the “reasonableness” of the discipline is an ever more ambiguous analysis.  Was the physical discipline exercised in anger?  Was it proportionate to the severity of the behavior to be corrected?  The answers to these and related questions will guide the “reasonableness” analysis.

In November, Adrian Peterson pled no contest to a misdemeanor charge of reckless assault allowing him to avoid a criminal trial.  He received two years of deferred adjudication, a form of probation. He was fined $4,000 and must complete parenting classes and perform 80 hours of community service.  If he completes his probation without incident, the misdemeanor charge will be removed from his record.

Whether one agrees with the plea agreement or not, this case has certainly brought needed attention to the issue of corporal punishment and child abuse.  At the very least this case will give parents reason to reflect on their own disciplinary methods, whatever their preferences and beliefs may be.

Does a Child Need His Own Attorney AND a Guardian ad Litem?

by Kea Bird-Riley, CASA Staff Attorney/Guardian ad LitemKea1

The Guardian ad Litem is the child’s voice in Family Court, right?  But there are times when the child may feel that the guardian ad litem is tone deaf.

It is common for the Guardian ad Litem’s recommendation of what is in the child’s best interest to run afoul of what the child believes to be in his or her best interest.  For example, a child may be under jurisdiction due to a parent’s abuse and neglect that includes habitual drug use.  Yet, the child may express a desire to return home soon, if not immediately, before the parent has rectified their substance abuse or completed the court ordered services required for reunification.

The Missouri Supreme Court requires Guardian ad Litems to be guided by the child’s best interest and to exercise independent judgment.  In fact, the comment in Standard 3.0 clearly distinguishes the Guardian ad Litem’s role from that of the child’s attorney’s role.

 “A guardian ad litem is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child’s preferences.” [Standard 3.0 Comment].  However, Guardian ad Litems still have an ethical obligation to inform the Court of the child’s preferences and wishes. [Standard 13.0]

While the child’s preference may differ from the Guardian ad Litem’s recommendation, the Court does not customarily appoint a separate attorney solely for that reason.  In fact, the Missouri Supreme Court requires the Court to appoint counsel and a Guardian ad Litem when necessary to assure a full and fair hearing.  [Rule 115.02].  The necessity for separate appointed counsel in addition to a Guardian ad Litem may arise when: the juvenile has a child under Family Court jurisdiction; has been charged with a status offense; or has been alleged to have violated a state law or municipal ordinance.

So what is the difference?  The attorney seeks the end result, or as close to it, desired by the child.  The Guardian ad Litem’s role is to represent the child’s best interest, even if it is contrary to the child’s preferences.

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When Should a Child Appear in Court?

by Kate Nolen, CASA Director of Legal ServicesKate1

One of the first questions attorneys and CASA volunteers often ask is whether a child should attend court. Juvenile court in any jurisdiction can, at best, be a confusing and sometimes overwhelming environment for a child. Emotions understandably run high and, coupled with the large number of people often gathered in the waiting area, it can be a stressful situation for a child already worried about where she’s going to sleep that night or when she might get to visit with her mom and dad.

                The Missouri Supreme Court rules tell us that when deciding whether to proceed without the child’s presence, the court should consider the child’s age, maturity, the nature of the evidence, and whether the GAL will waive the child’s presence.

                Let’s look at age. Older children and teens should attend court in order to address the judge and be a part of the court process. And if you’ve ever had the opportunity to listen to a panel of foster youth talk about their experiences in the system, you’ve probably heard a common theme. Teenagers usually want to be at the hearings. Imagine a group of people meeting periodically to discuss the details of your life – among other things, where you’re going to live and when you’re going to reunite with your family. We’d all want to be there.

                But what if a child is younger? We look to the Missouri Standards for Guardians ad Litem for guidance on when GALs should be willing to waive a child’s presence. The Standards state, “The guardian ad litem shall not waive the presence of the child at court proceedings without good cause.”  So what is good cause? Good cause may include the child’s therapist recommending against it or maybe the child doesn’t want to come to court because he’ll miss school or an extracurricular activity. It might be easier, however, to think about what is not good cause. For example, it’s not good cause simply because it’s not convenient to bring the child to court or because the child is placed far away, making transportation difficult.

                GALs and other parties alike are often worried about the potential harm in having a child attend court. One way to alleviate some of the potential stress of attending hearings is to explain the court process thoroughly to the child before and after any hearings. The comment in Standard 9.0 states,

“to decrease the trauma to the child, the guardian ad litem should explain to the child what is happening and what is expected of the child in all proceedings involving the child…the guardian ad litem should make a diligent effort to ensure that the child understands the nature of the proceedings, the placement or services that may result, and the possibility of future modifications in placement or services.”

                Although they give us factors to consider, the statutes and GAL rules don’t seem to give us clear examples of when a child’s presence at court should be waived. And there’s likely a good reason for that. Every child and every family is different. In order to determine what is best for a child, the GAL must know the child. A list of rules about when a child should attend court and when she shouldn’t will not fit every child. Bottom line: only through face-to-face contact with the child in addition to an ongoing dialogue with service and placement providers can the GAL make the best decision about when to waive a child’s presence at court.