Kids, Not Cases: Judges Make Better Decisions When Children and Their Families-With Adequate Legal Representation-Participate in Child Welfare Proceedings
Robison, Susan, State Legislatures
I never went to court. I have been in and out of foster care since I was a baby, and I really resent that I never got the chance to speak on my behalf or even be present when my future was being discussed." This South Dakota foster youth's experience is all too common. In addition to being excluded from the courts that make life-altering decisions, many children in foster care do not receive the legal representation that the rest of us expect as a fundamental, democratic right.
In Colorado, during 12 years in foster care, 19-year-old Andrew has been in 42 placements. And not once was he present for the numerous court hearings about his case. Despite state statutes requiring that all children with dependency cases have an appointed advocate, an "attorney guardian ad litem" who acts in the child's best interest, Andrew has met with his only a couple of times, and they have never had what he considers a meaningful, private conversation.
Access to court and legal representation for children who have been abused or neglected can vary from case to case and even from proceeding to proceeding. Both the decision-making process and the results for children can stray far from legislative intent, often without legislators even knowing it. The courts, the ultimate decision makers in these cases, are far removed from legislative scrutiny.
Instead of playing the blame game that seems to dominate child welfare discussions, a growing number of legislators are determined to forge a new, more informed and productive dialogue with the courts. And that includes shining a light on court performance.
KIDS IN COURT
Although executive branch child welfare agencies are more often in the public and legislative limelight, the courts have a powerful role in the lives of children who have been abused or neglected.
"Once you are in the system, your life is in their hands, not yours," says a former foster child from California. Courts decide whether children are removed from their homes and families, how long they remain in the system, and what education and health care services they receive. Only the courts sanction foster care, terminate parental rights and grant adoptions.
Historically, children have been barred from the courtroom because of the belief that it was inappropriate and unhealthy for the young to hear bad things about their parents. Many young people in foster care see it differently. They want a choice. These youths report that by the time they enter foster care, they've already experienced trauma. Court participation helps them gain a realistic view of their family and a sense of control--both important for getting on with their lives.
In a 2006 California survey, youths in foster care who attended court reported real benefits. Some were able to take an active role in decisions about their lives, while others found it helpful to simply be present and see how the decisions were made. Young people and their legal advocates believe that better decisions result when the judge can interact with children face-to-face instead of only reading a case file. The judge can observe the child's appearance and interaction with others, hear firsthand the child's hopes and opinions, and see that the child is getting older and needs a permanent family. One lonely child in foster care was unable to convince her case worker, foster parents or guardian ad litem that she desperately needed to see her sister at least once a week--despite busy schedules and conflicting demands on the adults' time. When she presented her case directly to the judge, a visitation arrangement that met her needs was accomplished.
A KINDER, GENTLER COURT
In some states, legislators have required courts to notify young people about hearings and to consider whether their presence is appropriate. Minnesota and California lawmakers make participation in court proceedings a right. …