By Roberta M. Gubbins
"I started practicing in this area of the law in 1980 when I was placed on the court appointed list," said Hon. Laura Baird, Family Court Judge, 30th Circuit Court, speaker at the Child Welfare Law Section of the Ingham County Bar Association recently. "It was my first year out of law school and because my father and grand-father were probate judges, it was assumed that I knew something about the area, but I didn't. I had to learn."
"The stakes are high in child protection because it is a 'liberty interest,' a constitutional right to raise your children. That comes a big shock to parents when they discover that the state can intervene in their lives. They are going to have to make dramatic changes in their lifestyle. I admire those attorneys who have good client control and can get parents to realize the gravity of the situation."
"In some cases reunification is not possible because termination will be sought from the onset. (MCR 3.963) It is very easy for the state to take children."
However, she advised that even if termination is the goal, "don't give up right out of the gate. Encourage your client to take whatever action they can to be pro-active, because it (termination) gets dropped a lot. Sometimes there are mandatory termination requirements that the court can make an exception to."
She advised attorneys to be realistic with their clients while zealously representing them. "You must make the advisability of contesting a petition clear to the parents. Additionally, being confrontational with CPS worker is generally not beneficial to the parent's interest, so pick your battles wisely and seek a productive relationship with CPS as soon as you can."
The preliminary hearing is the first step. "My preliminary hearings are held before the referees, Tom Fruechtenich or Rod Porter. Participants are usually the GAL (Guardian ad litem), the CPS (Child Protective Services) worker and at least one parent. The hearing decides probable cause that one or more allegations in the petition are true and come within the jurisdiction of the court, who the parents are, their address(es), whether the child is a Native American and if a parent is incarcerated. "In my court, both in-state and out-of-state prisoner-parents are represented."
Attorneys can represent both parents unless there is an adverse interest between the two--in that case, the court will assign separate attorneys. "Use the preliminary hearing as an opportunity to get information and to determine if it is possible to have the child move in with relatives or with a 'fictive kin' (a friend) and not be placed in foster care. Be aware that even if the parent has done what the petition says, it might not warrant jurisdiction of the court."
"Your responsibility to your client is to be frank with them about their legal position and to make an effective plan to get their child back and to challenge CPS's version of the facts. Find out as much as you can and be aware that much may be known about the family already. Also address parenting time--get as much as you can."
"It is a mistake to fail to make a record for a missing parent, who could show up weeks later. Keep in mind the possibility that someday the record will be scrutinized by the Court of Appeals. At every stage, make the best and clearest record you can."
"Meet with your client before the Pretrial. We try to run our docket with the least amount of delay to everyone. A pretrial usually ends in a plea to an Amended Petition so be sure your client understands that the court has extensive power over the family and the child. It is counterproductive to your client's goal of reunification to be adversarial unless in fact that is the necessary posture."
Judge Baird didn't recommend having jury trials. Instead, she recommended using the time to "find out from the workers what clients can do to maximize their chances of getting the child returned. If a trial is held, "it is crucial that you insist on adherence to the rules of evidence and you preserve all relevant issues for appeal in the event there is an eventual termination. The burden of proof is preponderance of the evidence. Be sure to prepare your client for cross-examination because they will likely be called as an adverse witness by the prosecution."
Once the court has jurisdiction or control over the parents, there is disposition. At the disposition, it is decided what the parents must do to get their child returned to them. "It is not productive to be adversarial at this point since the caseworker, the GAL and AP (Assistant Prosecutor) are important to the outcome of reunification." She warned that there is not enough time for a disputed disposition. "If you want to contest any aspect of the disposition set enough time in advance with the Court."
"You have the right to call and examine witnesses at disposition. Use the disposition to establish what efforts the state has made or failed to make toward reunification," she advised.
Periodic reviews are held to determine what was ordered, and what was done to comply and benefit from the orders. "It is a good time to address placement issues and to increase parenting time. The state does not always address the underlying issues preventing reunification so try to get drug screens or alcohol screens and treatment or other additional services that might help your client improve his or her skills and speed up reunification."
"Be careful with time," she warned. "After twelve months there will be a Permanency Planning Hearing where the court will decide what the permanent placement of the child will be such as return home, adoption, guardianship, placement with a relative or another planned permanent living arrangement. A solid record of compliance could avert the filing of a termination petition."
"The best interests factor is getting a lot of attention from the Court of Appeals in termination appeals." That might be an area to stress at termination particularly with older children, she advised.
In answer to questions:
Almost 90% of the cases are pleas rather than going to trial.
If the report is late, ask for an adjournment if you don't have time to prepare. We can usually get you back in court between one and three weeks.
In relation to workers who are lax in providing services, "I am trying to keep a record and be more pro-active and I get in touch with their supervisor."
The more you can get your clients to understand that the state is not trying to take their children and that they should do all the can to comply with the recommendations, the sooner the children may be returned.
Concurrent planning or concurrence is suppose to put the focus on the child. The child is placed in a pre-adoptive home so if the end is termination, the child is adopted, if it ends in reunification, the child returns to the parents. It is seems like that there are built in conflicts. In other states, it is very successful. And it is the trend federally.
The Child Welfare Law Section of the Ingham County Bar Association is now officially a section. Jodi Latuszek, Speaker Law Firm, will act as Chair in the coming year. For more information please contact her at: (517) 482-8933 or Email: firstname.lastname@example.org.
Published: Mon, Mar 28, 2011