ETHICAL DILEMMAS IN CHILD WELFARE CASES FOR LOUISIANA

ETHICAL DILEMMAS IN CHILD WELFARE CASES FOR LOUISIANA ATTORNEYS November 2017

WHAT ARE THE ETHICAL RULES? HOW DO YOU KNOW WHAT IS GOOD PRACTICE? Louisiana Rules of Professional Conduct Louisiana Supreme Court Rules, Rule XXXIII – Special Rules for Child Abuse and Neglect Proceedings Good Practice Expectations

BASICS Rule 1. 1 (a) Competence –A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation Rule 1. 3 Diligence – A lawyer shall act with reasonable diligence and promptness in representing a client

RELEVANT SECTIONS 1. 2 Scope of Representation 1. 6 Confidentiality of Information 1. 7 Conflicts of interest 1. 14 Clients with diminished capacity 3. 3 Candor toward the tribunal 4. 1 Truthfulness to others 4. 2 Communication with Person Represented by Counsel 4. 3 Dealing with unrepresented persons Rule XXXIII re standards for child’s attorney

TO BE COMPETENT I NEED TO KNOW : The law, obviously – keeping up, federal as well Child development Cultural competency Family dynamics, particularly where there is maltreatment Substance abuse/ addiction Domestic violence in families Mental health disease, testing , services/treatment Trauma Education issues for children Community services in my locale Placement options including use of relatives THIS IS A LOT - YOU ARE MORE THAN A LAWYER!

SO WHAT DOES QUALITY AND ETHICAL WORK LOOK LIKE? Meeting client and establishing relationship Helping client understand your role – how do you explain “confidentiality” vs “candor toward the tribunal”? For children’s attorneys helping client understand if you think you should involve CASA Issues to work with – placements relative options visitation service needs

LOUISIANA PRACTICE (AND WHO CARES WHAT THEY DO ANYWHERE ELSE) Attorneys for children are guided by children’s wishes and only limited ability to take best interests position For CINC matters, prosecutorial model is followed generally where elected or appointed attorney files petitions and appears in court on behalf of the agency but actually represents the state or the people of the jurisdiction – for TPR matters agency representation model followed generally like in house counsel Parent’s attorneys would have typical defense attorney role

For children’s attorneys – special issues re disability, confidences, conflicts For prosecutors – as caseworker is not the client, this also impacts confidentiality, conflicts of interests and relationship with administration of the agency and with caseworkers

MILLIE You are an attorney for 16 year old Millie who has been in foster care for 9 months and has decided to “come out” as gay. Her mother has done a remarkable job resolving a substance abuse problem and there is no safety reason that Millie cannot go home. Mom knows that Millie is saying she is gay and Mom says that Millie cannot come home unless she stays in the closet, tells know one and doesn’t “act gay”. Millie wants to go home. What do you do? What if you are the prosecutor and the child’s attorney tells you about the issue?

AMY AND BILLY Amy and Billy are siblings who have been in care for over a year in the same foster home and the plan is still reunification. You are attorney for both of them. Amy writes you a letter and tells you that Billy abused her when they were living at home and is still abusing her now and she wants to be moved to a different foster home. Do you have a conflict? Can you still represent either or both? If you need to be taken off one or both cases, do you tell the court why? Do you report the allegations to the caseworker or the prosecutor ? Do you tell the new attorney for either child?

A NAME BY ANY OTHER A permanency hearing is scheduled for a 16 year old who is a transgender girl. She wants to be called Crystal and by “she”. Her birth certificate says she is male and that her name is “Henry”. How should she be addressed in court? Can the Judge or the prosecuting attorney refuse to call her Crystal or refer to her as “she”? The agency says that there is no placement resource for Crystal and she is placed in a shelter and is in a separate room from the other youth. Is this ok?

You and your 11 year old client, Susie, have been anticipating her being able to return home to her mother who has worked very hard to overcome her alcohol problem and it looks like a return is imminent. The caseworker has mentioned “Bob”, mother’s new boyfriend as being a great help to mom. At court, mom introduces you to “Bob” and you realize he is an ex-client that you successfully defended on a statutory rape case a few years back when his young victim ultimately refused to testify against him. Bob appears to recognize you but does not acknowledge that he knows you. Options? Get Bob aside and tell him to either get lost or that he has to at least tell about the prior charges Ask to be replaced as Susie’s attorney due to a conflict you cannot discuss Ask the caseworker if she ever checked out an arrest record

Just a few days before court, a prosecutor is preparing a law enforcement witness for trial. During the conversation, the detective says that recently the supposed eyewitness to the child abuse came to the station to tell the police that he lied about what he saw. This conversation is not yet in any of the police department’s records that have already been obtained by the defense attorney through discovery. AND…………… 13

Does the prosecutor have to report this new information to the defense attorney and/or the GAL? What if the parent involved is pro se? What if law enforcement told this to the caseworker, is the caseworker obligated to tell the prosecutor? If the prosecutor puts the law enforcement officer on the stand, is he/she obligated to bring out this new info? 14 What if it was a child’s recantation instead and the detective states that he thinks the abuse really happened and the child is now covering it up?

MARTA AND THE OLDER BOYFRIEND 16 year old Marta says she does not need the caseworker to arrange to have her come to the permanency hearing because her new boyfriend Eddie is going to drive her to court. Foster family says that Eddie does not go to Marta’s school but “he seems nice enough” and that “met on a teen chat line”. Eddie drives Marta to the hearing and comes into court with her. Eddie looks like he is in his 20’s. What should attorney for Marta do? What should Judge do? What if Marta wants Eddie to stay for the hearing as her “advocate”?

• • While handling a contested hearing, attorney for the child Sue Jones realizes her opponent has been drinking and appears somewhat impaired but it does not seem like anyone else notices. What should she do? What if it is the Judge that Sue suspects has been drinking? Will it make any difference that the impairment means Sue’s client seems to be getting a better deal? What if Sue realizes that a non drinking opposing lawyer has misquoted the law to the court in a way that helps Sue’s case?

THE PROSECUTOR 17 The Judge is very upset to see a new matter that seems to allege long standing neglect of the children and tersely asks the prosecutor why the agency has not sought court intervention until today given the allegations in the petition. The Judge asks why didn’t the agency file sooner take the children out of the home sooner? Can the prosecutor answer? Does it matter if the prosecutor told the agency to do it and they didn’t? Is the Judge wrong to ask? Should the defense attorney question the Judge’s ability to be impartial?

THE MEETING Adam and Steve have been foster parents for many years and have successfully fostered over 20 children. They currently are fostering an 14 year old boy and his 10 year old sister. They are doing well and have been there for almost a year. Adam and Steven have started a LGBT support group that includes some high schools students and held a first meeting at their home. The foster children were there at the meeting. The 14 year old tells the caseworker about the meeting and also tells the caseworker – “I am gay too” The birth parents find out about the meeting and come to court with their minister and demand that the children be moved. The minister says they he is going to tell the press that the agency, the court and the lawyers are helping recruit children to be gay.

ETHAN’S TRIP 17 year old Ethan has a goal of APPLA. His mentally limited mother will probably never be able to care for him but Ethan loves her and feels his relationship with her is important. Ethan’s foster family is going to take a big trip to a resort in Mexico and want to take him along. The birth mother does not want Ethan to go and says that there are “gangs and drugs” in Mexico and also if Ethan goes, she will miss several visit times with him. Ethan wants to go. Can the agency let him go if the birth mother says no? Can the Judge order the agency to let him go?

IS THERE AN ANSWER? You are a parent’s attorney and you open an email and start to read it. Within a few sentences, you realize that it is an email with advice from the prosecutor to the caseworker and was not meant for your eyes at all: What are you required to do? Do you have to stop reading it immediately? Do you have to advise the attorney that it came to you by mistake? What should you do if you now “know” something that will assist you in your case?

AT A CONTINUED CUSTODY HEARING……. The parents are not represented by counsel, can you talk to them? Does it matter what your role is? The parents are represented by counsel, but it is your opinion that their attorney is clearly ineffective to the point that you think an appellate issue is being created – can you talk to the parents about your concerns? - can you talk to the Judge about your concerns? - do you approach the ineffective counsel and raise your concerns? Does it matter what your role is?