New Perspectives on Child Protection: Introduction to Ten Articles in a Special Issue of Family Law Quarterly

Abstract:     
Articles referenced:

*Sarah H. Ramsey
Child Protection: New Perspectives for the 21st Century, (pp. 301-310)

*Jane Waldfogel
Protecting Children in the 21st Century, (pp. 311-328)

*David J. Herring
The Adoption and Safe Families ActHope and Its Subversion, (pp. 329-391)

*Robert F. Kelly
Family Preservation and Reunification Programs in Child Protection Cases: Effectiveness, Best Practices, and Implications for Legal Representation, Judicial Practice, and Public Policy, (359-391)

*Janet Leach Richards
Protecting the Child Witness in Abuse Cases, (pp.393-420)

*Katherine Hunt Federle
Children?s Rights and the Need for Protection, (421-440)

*Donald N. Duquette
Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required, (pp. 441-466)

*Judith Masson
Representation of Children in England: Protecting Children in Child Protection Proceedings, (pp. 467-495,)

*Jane M. Spinak
The Role of Strategic Management Planning in Improving the Representation of Clients: A Child Advocacy Example, (pp. 497-529)

*Melissa Breger, Suellyn Scarnecchia, Frank Vandervort & Naomi Wolshin
Building Pediatric Law Careers: The University of Michigan Law School Experience, (531-552)


There are many challenges to improving the child protective system in the 21st Century. The nine articles in this special issue of the Family Law Quarterly identify these challenges and offer concrete suggestions about how best to resolve them. The issue includes a brief introduction, "Child Protection: New Perspectives For the 21st Century" by Sarah Ramsey.

In "Protecting Children in the 21st Century" Jane Waldfogel makes a compelling argument for the need for reform of our child protection system (CPS). CPS cannot adequately handle the large number of abuse and neglect cases and the caseload that develops from these reports is not well targeted--some families are included in the CPS caseload unnecessarily and others are not receiving assistance that they need. There are problems with the types of services that are offered families and with service delivery and orientation as well. Families should receive timely services that are appropriate for their needs. A "one-size fits all" approach means that most families will not receive appropriate services. Professor Waldfogel recommends a "differential response system" that would provide a more targeted response to families and would include a broader base of service providers.

The difficulties of reform are illustrated by the failure of the Adoption Assistance and Child Welfare Act of 1980 (ACCWA). In "The Adoption and Safe Families Act-Hope and Its Subversion" David Herring explains why child welfare agencies did not implement the ACCWA permanency planning concepts, such as the "reasonable efforts" requirement, and suggests a reason for ACCWA's failure was that its compliance review design was flawed. In response to the failure of ACCWA, another reform was adopted, the Adoption and Safe Families Act of 1997 (ASFA). It explicitly indicated that child safety was the primary goal of state child welfare systems and that these systems were to obtain permanent placements for children in a timely way. Like ACCWA, ASFA relies primarily on state officials to enforce compliance, but does not provide significant additional funds to courts or CPS to help implement the ASFA provisions. In addition, the federal funding scheme still provides a financial incentive to states to keep children in foster care. There are also significant exceptions to the ASFA time limits. Dean Herring proposes changes that could result in greater compliance with ASFA goals.

In "Family Preservation and Reunification Programs in Child Protection Cases: Effectiveness, Best Practices and Implications for Legal Representation, Judicial Practice and Public Policy", Robert Kelly provides a synthesis of empirical evaluations of CPS programs that were intended to fulfill ACCWA's reasonable efforts requirement. He provides important information about two types of CPS service programs: (1) family preservation service programs (FPS) that are intended to make it possible for children to stay with their families rather than being placed in foster care and (2) family reunification service programs (FRS) that are intended to assist in reunifying families when children have been removed from home. Although overall he found a discouraging number of programs were not successful, some were. For example, the analysis showed that FRS programs that coupled a managed care approach with rigorous case management were more likely to be successful. Professor Kelly also found that both FPS and FRS programs that provided concrete services, such as emergency cash, housing, food or medical care were more likely to be successful than those that offered therapy or counseling alone. Another finding was that programs that lasted longer than 4-6 weeks were more likely to be successful, as were programs with more highly skilled or experienced workers.

Janet Leach Richards' article "Protecting the Child Witness in Abuse Cases", explains the need for another reform effort-namely providing protection for child witnesses in state and federal criminal trials. The effort to protect child victims must be balanced against the rights of the accused secured by the Confrontation Clause of the Sixth Amendment. Professor Richards analyzes the constitutional requirements and reviews legislative and court procedures that are being used to protect child witnesses. Her analysis includes the federal Child Victims' and Child Witnesses' Rights statute that provides for a number of protections for child witnesses testifying in federal criminal trials, such as testimony through two-way closed circuit television and videotaped depositions. She also analyzes state child witness protection legislation. She identifies steps courts can take to help child witnesses, even without explicit statutory provisions, such as preparing the child witness, allowing closed circuit television testimony, modifying examination rules, changing the courtroom setting, and even closing the courtroom.

In addition to systemic improvements, representation of children in individual proceedings is an important aspect of improving the child welfare process. In "Children's Rights and the Need for Protection", Katherine Hunt Federle's analysis of children's rights provides an opportunity to reflect on the goals of systemic change and to move to consideration of the function of the child's representative in child abuse and neglect cases. Professor Federle advocates for an empowerment rights perspective that would be a means for remedying children's powerlessness. She argues that children need to be respected and empowered because they have rights, rather than being viewed as powerless and vulnerable. She notes that the status of children today in the child welfare system supports the idea that children may not fare well when they must rely on adults who are advocates for their best interests. She suggests that the best interests model results from dissatisfaction with CPS and judges. Further, a best interests approach indicates a skepticism about a rights based approach that would provide advocates for a child's preference. She notes that rights that usually belong to a party in a judicial proceeding, such as rights to call and examine witnesses, are not the child's rights in a protection proceeding but rather are the representatives' duties or rights. An empowerment rights perspective, rather than a best interest approach, would emphasize children's abilities rather than disabilities. Children's claims would be more likely to be heard and respected if they came from a position of power, rather than vulnerability.

In "Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required", Donald Duquette presents a different view of the proper role of the child's attorney. He suggests that we need to abandon the debate between best interests and client-directed, and embrace both models. He acknowledges that the prevailing view among academics and professional organizations is that the child's representative should advocate for the child's wishes, but notes that a majority of state laws require representation of the child's best interests. In addition to the concerns raised by Professor Federle, a major criticism of the best interests approach is that the standard is indeterminate and therefore the child's attorney has unlimited discretion to determine what constitutes the child's best interests. Professor Duquette points out that the client-directed model suffers from a similar deficiency because typically the attorney can determine the child's competence and a number of exceptions in the model allow the attorney to take an approach at variance with the client's wishes. He advocates an approach similar to that adopted by Michigan that allows both types of representation.

Judith Masson's research on representation of children in England, reported in "Representation of Children in England: Protecting Children in Child Protection Proceedings", provides a unique perspective for the special issue because it includes data from interviews with participants in the process, including the children. In England, children usually are provided a guardian ad litem and a solicitor in protection cases. The guardian ad litem is a social worker who is independent of the child protective services agency. Both the guardian ad litem and the solicitor have special training in child protection issues. The guardian ad litem instructs the solicitor, unless the solicitor believes that the child wants to give conflicting instructions and is competent to do so. Professor Masson found, however, that solicitors were unlikely to take instructions from a child if the child's instructions would conflict with the guardian ad litem's. In spite of having two representatives who potentially could involve the child, Professor Masson found that typically children had little opportunity to influence the court or make their wishes known. The emphasis on children's welfare resulted in excluding them from participating in the proceedings in a meaningful way.

An important, but often overlooked, aspect of representation of children, is the administration of representation programs. In "The Role of Strategic Management Planning in Improving the Representation of Clients: A Child Advocacy Example", Jane Spinak reflects on what she learned while she was Attorney-in-Charge of the New York City Juvenile Rights Division (JRD) of the Legal Aid Society. JRD represents children in protection, delinquency, and status offense cases. In 1995 the JRD employed 130 attorneys and represented 40,000 children. In order to provide effective representation, a legal services office needs to be responsive to changes in law and practice. To effectuate change, a new manager must not only understand the organization's culture, structure and resources, but also must understand how it fits within the larger context of its operations, such as its relationship to the courts and child welfare agencies. Further a new manager must consciously choose a management philosophy and study management techniques. Skills that make a person a good attorney are not necessarily the same as those of a good manager. The manager must administer personnel and the budget and be successful at fundraising and communicating with the media. The manager must be able to deal with administrative issues in a way that directs the organization toward the overall goal, which is to create a structure for good practice that can keep up with changes in the field. Professor Spinak gives examples of how JRD improved its ability to problem solve and work toward constructive change in areas such as continuity of representation and the use of paralegals.

As the articles in this special issue illustrate, representing children is a complex and demanding task. In "Building Pediatric Law Careers: The University of Michigan Law School Experience", Melissa Breger, Suellyn Scarnecchia, Frank Vandervort, and Naomi Woloshin explain how to encourage and support pediatric law specialists, beginning in law school. They use a University of Michigan Law School program as an example to explain key components in developing and supporting pediatric law specialists. At Michigan, law school students can participate in an interdisciplinary clinic and seminar that focus on child protection issues. To reach students at other law schools and to broaden student's practical experience, an additional component in the Michigan program is a summer child welfare law fellowship that provides intensive training for students and places them in a pediatric law practice. The Michigan program also developed a resource center to assist judges and attorneys by providing training, publications, a web site, job listings, and technical assistance with specific cases.

Overall the articles in this special issue present a number of exciting suggestions about ways to improve the child protective system and representation of children. Our child welfare system is in desperate need of improvement. These articles challenge us all to make a contribution to that endeavor and to be strong advocates for children.

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