Children/Juveniles
Legal Representation in Child Protective Services Cases
How do we ensure parents and children receive high-quality court-appointed attorneys?
By Dylan Moench
For almost four decades, the U.S. Supreme Court has recognized the
constitutional implications in cases of involuntary termination of the
parent-child relationship by government entities. The complex area of
law governing the rights of parents and children in such cases requires
lawyers to have specialized training and expertise. Cases involving
termination of parental rights are often fraught with issues of
substance use and addiction, poverty, inadequate and insecure housing,
domestic violence, mental health issues, various levels of interpersonal
and historic trauma, and disproportionality and disparities.
Court-appointed legal representation is mandated by law for all children
removed to foster care and for their parents, if indigent, but resources
are limited and providing high-quality representation is a challenge for
both courts and attorneys.
Texas has a well-regarded statutory framework for the appointment of
children’s attorneys. The Children’s Advocacy Institute gave Texas an
“A” rating in the fourth edition of its evaluation of state laws
relating to the legal representation of children in civil child abuse
and neglect proceedings.1 Though not required by federal law,
since 1995 Texas has mandated the appointment of an attorney, referred
to as an attorney ad litem, for every child in the conservatorship of
the Texas Department of Family and Protective Services, or
DFPS.2 An attorney ad litem appointed by a court has numerous
rights and duties related to providing legal representation to a child.
For example, the attorney ad litem has the right to access the child and
any information relating to the child including school records, medical
records, court records, and law enforcement records.3 The
attorney has a duty to meet with the child before each hearing, conduct
a full, independent investigation into the child’s case, and participate
in the litigation to the same extent as all other attorneys on the
case.4 Unlike other states where an attorney for the child
advocates for what the attorney determines is the child’s best interest,
under Texas law, the attorney ad litem follows the child’s expressed
objectives if the child is able to understand the nature of the
attorney-client relationship.5,6 The only circumstances in
which an attorney can substitute his or her judgment for the child’s are
if the child lacks sufficient maturity to form an attorney-client
relationship, the child is incapable of making reasonable judgments and
engaging in reasonable communication, or the child persistently
expresses objectives that are seriously injurious to the
child.7
Attorneys for parents have the same duties and training requirements,
but unlike a child’s attorney, who must be appointed when the state
files a petition for conservatorship or termination, a parent is not
guaranteed an appointed attorney until he or she appears before the
court in opposition to the state’s request and confirms he or she is
indigent.
The Texas Family Code requires that each appointed attorney fulfill
various duties and responsibilities, including becoming familiar with
the standards of representation adopted by the National Association of
Counsel for Children8 and the standards issued by the
American Bar Association.9 However, Texas has not adopted
either standard nor has it established its own standards of
representation for parents and children.10 Training
requirements are minimal. Attorneys representing parents and children
are required to have only six hours of training specific to child
protection law before becoming eligible to take appointments. The system
of appointment for attorneys, the fee schedule for attorney
compensation, and oversight of attorney performance varies from county
to county.
There is no uniformity of practice for children’s attorneys in Texas
and there are no standards for how legal representation should function
at a local or statewide level. This deficiency has long been a concern
of the Supreme Court of Texas Children’s Commission, which has
maintained a legal representation committee almost since its inception
in 2007 and conducted its first study of legal representation of
court-appointed attorneys in child protection cases in 2010. In 2017,
the Children’s Commission began an updated and expanded study of legal
representation by eliciting information from parents, youth currently in
care, relatives, foster parents, attorneys, mediators, judges, and other
professionals involved in the child welfare system about how the system
for appointing attorneys for parents and children in Child Protective
Services, or CPS, cases is functioning, how that functioning impacts the
quality of legal representation provided, and potential reforms that
could impact the quality of representation. The study culminated in a
report to the Texas Legislature in September 2018 titled Supreme
Court of Texas Children’s Commission 2018 Study of Legal Representation
in Child Protective Services Cases.11
The study revealed some significant differences between how various
stakeholders viewed attorneys’ compliance with their statutory
obligations. Eighty-five percent of judges surveyed reported that, as
required by statute, attorneys for children always or often visited
their client prior to each review hearing conducted to assess progress
in the case, the safety and well-being of the child, and the status of
parents and family members. However, less than 20% of foster parents,
CPS caseworkers, and other child advocates surveyed agreed that
attorneys for children always or often complied with this
duty.12 Furthermore, only 20% of youth in care surveyed
reported that their attorney always visited them before each review
hearing.13 A similar disparity was found regarding a question
designed to assess whether attorneys who did not fulfill their statutory
duties were held accountable for failing to do so. Sixty-eight percent
of judges surveyed reported that attorneys in their courtrooms who
failed to comply with their duties were always or often removed from the
list of appointed attorneys. Yet, only 16% of attorneys representing
DFPS agreed that attorneys for parents and children who failed to
fulfill their statutory duties were removed from cases or rotating
appointment lists. Less than 10% of CPS caseworkers and Court Appointed
Special Advocates volunteers agreed that these attorneys were removed
from court-appointed rotation.14
The study also found a lack of clarity regarding the mechanisms for
ensuring that attorneys perform their duties. While 72% of judges
thought that monitoring attorney accountability was an appropriate task
for the judiciary, only about a quarter reported having sufficient time
and resources to review attorney performance and 12% reported using a
formal review process to evaluate attorneys on the appointment
list.15 Although 88% of attorneys reported specifying the
actions taken on behalf of their clients in the billing they submit to
the court, only 4% of court coordinators reported using information from
attorney billing in an evaluation process.16 When asked which
reforms would have a strong positive effect on improving the quality of
representation provided to children, improving oversight over attorney
performance received the most support across all stakeholders
surveyed.
While there is room for improvement, the survey data and report also
reveal that there are many dedicated court-appointed attorneys across
the state who zealously represent vulnerable children and parents and
who make a positive difference in the lives of their clients. Equally
important, there are also devoted attorneys who represent the state of
Texas in CPS cases and provide critical legal representation in these
high-stakes matters. Attorneys who seek out court appointments to
represent children and parents, as well as those who represent DFPS, for
the most part, are dedicated and committed individuals who see this work
as a calling.
The Texas legal community has made great strides in seeking to improve
the quality of representation in several ways. In 2017, Texas became one
of the first states in the nation to establish a board-certified legal
specialization exclusive to the practice of child protection law, and in
2018, the Texas Board of Legal Specialization certified 45 Texas
attorneys as specialists in the field. In 2018, the State Bar of Texas
Board of Directors approved the Child Protection Law Section as a
stand-alone section of the State Bar. The Child Protection Law Section
hosted Advanced Child Protection Law conferences in 2018 and 2019.
In the fall of 2019, the Children’s Commission will establish a Legal
Representation Task Force to explore the best ways to respond to the
needs revealed by the survey data. The task force will primarily focus
on the feasibility of implementing systemic oversight and accountability
of the Texas court-appointment system in child protection cases.
Providing high-quality legal representation that matches the high-stakes
decisions inherent in child protection cases is important to our
collective sense of justice. Quality legal counsel is essential for all
parents and children to help ensure that courts strike the appropriate
balance between the rights and duties for all involved. Though there is
still progress to be made, Texas is taking steps to ensure that the
promise of high-quality advocacy envisioned by the Texas Family Code is
matched by the practice of all attorneys appointed for Texas children
and parents in child protection cases.TBJ
DYLAN MOENCH
is a staff attorney
with the Supreme Court of Texas Permanent Judicial Commission for
Children, Youth and Families.