The Colorado Lawyer
Vol. 30, No. 5 [Page 27]
© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.
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Law Day 2001: Promoting Justice for Children
by Shari Shink
Law Day is a national event celebrated each year on May 1 by members of the legal profession and the judiciary. Its purpose is to increase community awareness and to strengthen our heritage of liberty, justice, and equality under the law. This year’s Law Day theme is "Protecting the Best Interests of Our Children." Law Day is a good day to call attention to the plight of our nation’s children. May 1, 1886, was a decisive day in the labor movement. Benefits enjoyed today, such as the minimum wage, safety laws, and an eight-hour workday came about with personal sacrifices of a quarter million workers who went on strike as part of the May Day movement. The struggles and accomplishments of these martyrs built the society we currently enjoy. In May 2001, perhaps as we reflect on our history, we can collectively express our unity and commitment to justice for children.
Recently, schoolchildren and violence have dominated our thinking. In no other country have children taken to shooting other children as they have in this nation. Violence is cultivated in human suffering, but much human suffering can be prevented. No one effectively intervened in the lives of Eric Harris, Dylan Klebold, or Charles Andrew Williams. Williams was described as " . . . a lost boy for some time hopelessly adrift . . . craving acceptance but too often meeting rejection instead."2For many children, the social services system does intervene with the stated intention of protecting the health and safety of children. Despite this, thousands of children still are denied critical physical and mental health treatment. Toddlers have died under the watchful eye of the courts and agencies, and foster children have been placed in the homes of convicted felons. The news of children arbitrarily returned to abusive parents, traumatized by the revolving door of multiple out-of-home placements, and the scandals that plague overwhelmed child protection systems across the country reveal a flawed system of justice for children.3 Despite important reform efforts, 4 the system has remained fundamentally unchanged for decades.
Time for New Activism
The challenge for all of us is to implement the theme of Law Day—"Protecting the Best Interests of Our Children." What does "best interests" mean? It is a legal term of art used by courts and legislatures in Colorado and the nation to describe the standard by which legal decisions affecting a child are to be made. "Best interests" is a child-centered principle, but it is not an objective standard. Litigants’ perspectives influence the position taken on the child’s best interests:5 competing interests, complexity of issues, debates over rights, and a focus on rules and procedures often obscure the best interests of the child and emasculate legislative intent. A few examples illustrate the point:
— A tiny, fragile, cocaine-addicted baby is placed at birth with a foster family, and thrives. The parents’ rights have been terminated, and the foster family wants to adopt, but the social services agency recommends placement in a different home, one with siblings she does not know. This home had rejected the baby at birth. Despite expert testimony to the contrary, the court defers to the social services agency, and the appellate court denies a stay. Two years later, this child and her three siblings are removed from this home as the result of serious, life-threatening abuse.6
— Two school-aged children have lived with their foster family for over two years. They were available for adoption. Rather than waiting until an appropriate adoptive home was determined, or the school term ended, the children were arbitrarily removed—without a prior court hearing—and placed in a receiving home, traumatizing the children, disrupting their lives, and needlessly interrupting their schooling. Rather than being allowed to stay in the familiar environment of their foster home, these children were forced to adjust to a new home and a new school while waiting for an adoptive home to be identified for them.
— A happy, healthy two-year-old is traumatized when taken from her grandmother and siblings as a result of an unsubstantiated allegation of abuse. She was removed at night by the social services agency, accompanied by the police because it was after dark. Her siblings remained with their grandmother. This child had lived with her grandmother all of her life. An emergency motion requesting the child’s immediate return was filed with the court. The court failed to rule on the motion for a month. A hearing was finally set an additional month later and postponed. This two-year-old has no idea why her life was shattered, nor does her grandmother or her siblings.
These are symbolic of hundreds of cases where the "best interests" of children is subordinated to the system. Judge Lois Haight, Superior Court Judge in California, believes that the system has assumed importance greater than the child, serving people who work in it rather than the people they are paid to serve.7 "Our society is failing to protect its children and fails them even more once they are in crisis."8
On any given day in Colorado, between approximately 7,000 and 10,000 children are in foster care. Whenever children and youth are repeatedly moved in out-of-home care, they are at risk. Children may experience fear, violence, over-crowding, sexual abuse, lack of attention to mental health and educational needs, and other violations of basic privacy and humane treatment principles.
Child Development and Trauma
Society has ever-increasing knowledge and sophisticated tools to deal with the complex challenges it faces with abused and neglected children. However, energies and resources often are put into building prison cells for the children society has failed, rather than into raising human beings who are happy and productive.9 Promising new research and an explosion of information regarding the human brain10 reveals that the brain develops in response to appropriate stimuli during the earliest months and years of life. Brain development is more vulnerable to environmental influence than previously suspected, and early stress has a negative impact on brain function.11 When early development does not provide appropriate stimulation, a child’s brain may fail to grow optimally. The child may fall behind in school and may become vulnerable to a wide range of behavioral problems. Moreover, healthy, loving relationships in the lives of children make a difference—they help them heal. Nothing is more important to them than a sense of security. Their well-being depends on it. The absence of sustained "reciprocal connectedness" impedes progress in children, and the consequences are life-long.12
Where there is constant trauma, young children and adolescents increasingly need access to quality mental health services. Mental health in childhood and adolescence is defined by the achievement of expected developmental (cognitive, social, and emotional) milestones and by secure attachments, satisfying social relationships, and effective coping skills.13 The Surgeon General’s conference on children’s mental health terms children’s mental health a "national crisis."14 When a child is subject to trauma, disruptions, and unrelenting stress, one doctor states that the child’s brain is "constantly stewing" and has no room to learn skills.15
Children who are always faced with repeated changes of foster homes, caseworkers, treating clinicians, and schools are rarely free of trauma. On the other hand, mental nourishment (that is, adequate care, love, attention, and devotion to a child’s basic needs) can increase a child’s intelligence quotient, reduce mental retardation, and cut school failure rates.16 Despite what is known as "reactive attachment disorder," children continue to be shuffled from one place to another.17 Those under the age of 12 who are placed in residential facilities experience an average of from seven to nine previous placements in foster care in Colorado. The Diagnostic and Statistical Manual describes one of the causes of reactive attachment disorder as "multiple placements."18
Many children go without treatment for such trauma. However, those lucky enough to receive benefits often find that with a change in foster home placement comes a change in therapist, thereby denying them this stable relationship so critical to healing. Research on the development of the infant brain and on the causes of delinquency clearly shows that failing to meet the mental health needs of these children has dire consequences for the children and the nation’s communities.19 What can be done to remedy this crisis?
As family law experts look to mediation and businesses look to arbitration as alternatives to the state court system, children’s advocates also are hoping to establish a more humane and compassionate system. Such a family-centered system would use mental health experts, pediatricians, and teachers in a non-adversarial forum to make sound decisions that could enhance outcomes for children. The system would operate with a sense of urgency to help prevent emotionally fragile children from sinking into despair each time their case is postponed. The "best interests" of children could be more easily and effectively implemented with an enlightened alternative to the traditional court system.
Years of documentation have demonstrated the courts’ ineffectiveness in handling family problems in a timely way. It is a cumbersome apparatus that exacerbates rather than heals conflicts. More than eight Governor/Legislative Task Forces have recognized the growing problems for families in terms of time, cost, and emotional chaos. Often protracted, the formal and expensive legal process robs children of precious time and impedes an expeditious and just conclusion. A new process is needed that resolves problems and promotes family responsibility so that parents can feel they have a voice in developing a solution to their family difficulties.
Thus, the courts cannot be considered a viable remedy for children. The delays inherent in the process especially inhibit appellate advocacy. Children grow up. They need the equivalent of an "emergency room" to correct abuses in the system that is plagued with relentless delays that can be excruciating to children and families. The missing ingredient in such legal challenges is an alternative. Several have been tried, with some success.
Statewide Office of the Child’s Representative
Through the leadership of the Chief Justice of the Colorado Supreme Court, Mary Mullarkey, and State Representative Kay Alexander, a new Office of the Child’s Representative has been created.20 Theresa Spahn, former District Court Magistrate in Adams County, began as Director on March 1, 2001. The purpose of the office is to ensure the provision of high-quality legal representation for children in judicial proceedings.
Some of the duties of the office include the provision of specialized training for guardians ad litem ("GALs"), a determination of an appropriate maximum caseload limitation for GALs, oversight of GALs, and fair and realistic rates of compensation. It is expected that the Director will develop new funding sources and enhance the Court-Appointed Special Advocate ("CASA") program in Colorado.21 One important provision in the legislation (the act that mandated the office)22 urges the establishment of pilot programs designed to enhance the quality of legal representation for children. This legislation provides a long-overdue opportunity to explore more effective ways of delivering critical legal services to children.
Pro Bono Attorney Program for Children
Many solo and small firm lawyers do well in "mill practices" that are organized and efficient, with sophisticated computers and word processing systems to keep track of cases and documents.23 Cases where this might apply include uncontested divorces, basic wills, bankruptcy petitions, and Social Security claims. However, cases dealing with children and troubled families are emotionally laden and fact-driven—the effective representation of children depends on relationships with the child-client. Such independent investigations take time, and resources critical to the child and family are scarce.
Effective attorney representation for children should provide the court with new and different information, suggest beneficial alternatives to consider along with those offered by social services agencies, or challenge practices that negatively impact children. The time this takes may make an effective high-volume legal practice difficult. Providing legal representation for children is thought of as a business. Attorneys wish to make a decent living, and judges seek an available pool of attorneys they can count on.
Unfortunately, the system imposes formidable obstacles for anyone sincerely and capably fighting for a child or a parent. Caseworkers are undertrained, understaffed, underpaid, and carry an unreasonable caseload. Despite this, they have automatic credence and enjoy the perception of power. Typically, judges defer to them. GALs, the intended watchdogs in the system, are similarly overwhelmed and often offer little or no protection for children.24 Legal challenges are rare. For advocates who are vigilant, being correct on a legal position or principle is no guarantee of success.
However, there have been some successes. It has been eight years since former Judge Jacqueline St. Joan and the Honorable Brian Campbell partnered with the Rocky Mountain Children’s Law Center to launch the pro bono attorney program for children in domestic violence cases. Since that time, more than 500 attorneys have been trained to serve children. Attorneys have stated that they find this work to be more rewarding than anything else they have ever done. Children have benefited from timely and meaningful outcomes, and the courts have been impressed with the high quality of work and exhaustive investigations of the attorneys. This program was honored by the National Council of Juvenile and Family Court Judges in 1998 as one of the most effective and innovative programs for children in the country.
One of the premier pro bono firms has been Holme, Roberts & Owen, representing children in more than twenty cases over the last decade. Richard Gabriel, a partner, was honored by the Children’s Law Center as a "Champion for Children."25 Other law firm leaders include Holland & Hart; Sherman and Howard; Rothgerber, Johnson, & Lyons; Davis, Graham and Stubbs; Brownstein, Hyatt & Farber; Sheridan Ross; Gibson, Dunn & Crutcher; Ballard, Spahr, Andrews & Ingersoll; Bruno, Bruno & Colin; Fowler, Schimberg & Flanagan; Ireland, Stapleton, Pryor & Pascoe; Gonser, Pawlowski & Johnson; and Dorsey & Whitney. Many solo practitioners and individuals from smaller firms have committed time as well. More than $2 million worth of pro bono legal services has been provided to children in this state.
Moreover, a dozen firms joined with the Children’s Law Center a decade ago and spent five years investigating and then negotiating the only class-action lawsuit ever filed on behalf of children in foster care. The law firms of Faegre & Benson and Morrison & Forrester led that extraordinary effort, which infused resources and established mandates in the system of care for kids.26
With critical support from the Helen K. and Arthur E. Johnson Foundation and in partnership with the State Foster Parent Association and the Department of Human Services, the Children’s Law Center also launched a statewide foster parent training program. Many pro bono attorneys have been recruited to represent foster parents across the state in the unceasing battle to stop the arbitrary movement of children in foster care. What is inspiring about the work of pro bono attorneys is that they are willing to do what many say cannot be done.
An alternative to the traditional court system is the Family Court spearheaded by Colorado Supreme Court Justice Rebecca Love Kourlis. Courts have been encouraged to implement Family Court principles to better serve children and families. Through the insightful direction of Judge John Vigil, Adams County District Court has launched an exciting pilot project. Early information suggests that Family Court has improved the delivery of services to families through Comprehensive Family Treatment Plans, reduced the number of court appearances, and expedited case closure. This project works toward achieving the timely permanence for children they so desperately need.
The Adams County Family Court Pilot Project offers a viable alternative for other courts as well. Such a comprehensive approach is needed, especially in districts where families are forced to relitigate matters affecting their children in several different forums, such as domestic violence, parenting time issues, or dependency and neglect matters.
Scottish System of Juvenile Justice
Another possible alternative is the Scottish System of Juvenile Justice model. Known as the "Children’s Hearing System," it is a community-based system of "lay judges" recruited from, and trained in, the community. Three lay judges problem-solve with families to arrive at a meaningful disposition. At least one lay judge reflects the race and culture of the family. A vote of two determines the outcome. Multiple panels are developed to ensure an ability to respond with a sense of urgency.
The Scottish model is thirty years old and has dramatically reduced the time and cost of out-of-home placements for children in Scotland. Also important has been the involvement and investment of the community. Lay judges have taken an active community role in stimulating the creation of new resources to meet the needs of children and families. Further, by moving the cases of abuse and neglect, status offenders, and minor delinquencies to three lay panels, the court is free to respond more effectively with speed and certainty to delinquents, a proven deterrent to crime.
The Promise of Juvenile Courts
The Honorable Ben Lindsey, founder of the Juvenile Court in Denver, stood for compassion and humanity. He conceived the Juvenile Court as an oasis of individualized justice. Known as the "Kid’s Judge," he thought it important to put a little love in the law. Judge Lindsey established a relationship with all children who appeared before him. He spoke with them inside and outside of his courtroom and listened to their concerns. He learned about their lives. Judge Lindsey conveyed a genuine interest in the children, which fostered trust and, as a result, compliance with his plan for their success.
Judge Lindsey’s court became a world model.27 The uniqueness of the court stands out as one in which the judge took on the responsibilities of therapeutic agent rather than relying on the skills of others. Times have changed; our children have not. Although it may be impracticable for judges today to model Judge Lindsey’s personal style, it is incumbent upon the Bar to perpetuate a forum in which to implement personalized justice for children.
In 2003, the Denver Juvenile Court will mark its 100th anniversary. The Juvenile Court was created to serve children. Relying on a specialized judiciary who only heard cases involving children, the hope and expectation was that children would be better served. To maintain the vision that inspired this specialized court, the Bar must be ever-vigilant in seeking alternatives to ensure the viability of Judge Lindsey’s legacy.
Children deserve collective action from the legal, business, and social communities; otherwise, the humanity in all of us is sacrificed by our apathy. We need to wake up to the connection between society’s treatment of abused and neglected children and later long-term problems. Attorneys and judges can make a difference by focusing on compelling and preventable harms, and emulating the Champions for Children. Children need a groundswell of community support that includes attorneys, business leaders, and children themselves in order to focus on innovative remedies for children at risk. Courts must look to the well-being of infants and children. The attention of juvenile and family courts must be directed to the prevention of mental health problems and to the earliest possible intervention when those problems arise.28
The Children’s Law Committee of the American Bar Association has launched a national campaign to recruit pro bono attorneys to help address these formidable problems. In Colorado, on May 1, 2001, the Honorable Charles Gill, District Court Judge and co-founder of the National Task Force for Children’s Constitutional Rights, kicked off this campaign on the campus of the University of Denver College of Law. Members of the Colorado Court of Appeals, District Courts, and former members of the Colorado Supreme Court led discussions with children regarding their rights. Attorneys also were recruited to offer pro bono representation for children.
This Law Day program is just one means of drawing attention to the challenges facing children in Colorado’s child protection system. The legislature has clearly stated its intent to give paramount consideration to the welfare of children.29 It is up to the legal and social services systems to implement that intent—one child at a time.
1 The mission of the Rocky Mountain Children’s Law Center is the protection of children and promotion of healthy families through legal advocacy.
2 Gibbs, "It’s (Not) Only Me," Time (March 19, 2001). Seewww. time.com/time/magazine/article/0,9171,102025,00.html
3 Roche, "The Crisis of Foster Care," Time (Nov. 13, 2000). Seewww. time.com/time/magazine/article/09171,59793,00.html
4 For example, the movement to achieve permanency planning for children, the reform of the foster care system, the intervention of foster parents in dependency and neglect actions, pilot projects with respect to family-based cases, the enhancement of guardian ad litem representation, and the implementation of Family Court, among others.
5 Ventrell, "Evaluation of the Dependency Component of the Juvenile Court," 49 Juv. Fam. Ct. J. 17, 31 (1998).
6 Mitchell, "Fort Morgan: Tales of Savagery Surface at Hearing," The Denver Post (Sept. 23, 1999) at Section B, p. 4.
7 Haight, "What is Wrong With This Story?" Juv. Fam. Just. (Winter 2001) at 24-25.
8 ABA Presidential Working Group on the Unmet Legal Needs of Children and Their Families, America’s Children at Risk: A National Agenda for Legal Action (1993) at 45.
9 Ensslin, "Page Sentenced to Life Without Parole," Rocky Mountain News (March 3, 2001) at 5A.
10 Kotulak, Inside the Brain: Revolutionary Discovery of How the Mind Works (Kansas City, MO: Andrews & McMeel Pub., 1996) (analysis led to a Pulitzer Prize).
11 Starting Points, The Report of the Carnegie Task Force on Meeting the Needs of Young Children (April 1994).
12 Arredondo and Edwards, "Attachment, Bonding and Reciprocal Connectedness," J. of the Center for Families, Children & the Courts (2000) at 109-23.
13 "The Surgeon General’s Report on Children’s Mental Health," Juv. Fam. Just. (Spring 2001) at 24.
15 Personal conversations with Dr. Bruce Perry, spring 1999.
16 Beck, "Educators, Politicians, Ignore Exciting Discoveries About the Brain," The Denver Post (Oct. 6, 1996).
17 See "Reactive Attachment Disorder of Infancy or Early Childhood," Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Wash. D.C.: American Psychiatric Assoc., 1994) at 128.
18 Id. "Criterion C2: . . . or repeated changes of primary caregiver that prevent formation of stable attachments (e.g., frequent changes in foster care)."
19 Bunard, ed., "Enhancing the Mental Health and Well-Being of Infants, Children, and Youth in the Juvenile and Family Courts: A Judicial Challenge," Juv. Fam. Ct. J. (Fall 2000) at 47.
20 CRS §§ 13-91-101 et seq. For more information, see 30 The Colorado Lawyer 13 (March 2001).
21 The CASA program works with GALs or independent parties in dependency and neglect cases to serve the best interests of children.
22 CRS § 13-91-105(VI)(1).
23 Gibeaut, "Avoiding Trouble at the Mill," ABA J. 48, 49 (March 1997).
24 Report of the State Auditor, Colorado Judicial Dept. Guardian ad Litem Performance Audit (June 1996).
25 The Champions for Children award is presented each year by the Rocky Mountain Children’s Law Center to an outstanding advocate for children. For example, former Chief Justice Anthony Vollack received the award in 1999.
26See L.P.M. et al. v. Roy Romer, Gov., State of Colo., Civ. Act. No. 94M1417 (D.Colo. 1995). A joint effort of the Children’s Legal Clinic and the Colorado Lawyer’s Committee, it is an extraordinary example of advocacy through pro bono attorneys.
27 Fox, "A Contribution to the History of the American Juvenile Court," 49 Juv. Fam. Ct. J. 7, 11 (Fall 1998).
28 Id. at 48.
29 CRS § 19-1-102.
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