Library: Advocacy

Mediation of Child Protection Proceedings
The Connecticut Juvenile Court's Approach

PART I 

About the Program
About the Process
Confidentiality and Legal Considerations
Outcome and Evaluation
Conclusion
References

PART II Overview of Case Status Conferences

Goals
Overview of the Case Status Conference Process
Overview of the Parties Involved

PART III Goals of the Mediation Process

To Assist All Parties Reach A Settlement
Role of the Child Protective Services Worker
Role of the Attorney Representing the CPS Agency
Role of the Attorney for the Parent(s)
Role of the Attorney for the Child
Role of the Advocate for the Child
Role of the Child
Role of the Parent(s)

Suggested Reading

PART I  Background

In 1980, the federal government passed the Adoption Assistance and Child Welfare Act known commonly as P.L. 96-272. While the Act was intended to establish guidelines which would result in the establishment of eligibility for federal Title IV-E subsidies for foster care operations, the spirit of the law focused on the status of children in out of home placement. The result for the state's child welfare system was the establishment of administrative procedures and policies which emphasized the need to make permanent plans for children in their system. The State Courts with jurisdiction over these cases were required to review these cases at specific intervals.

In 1983, P.L. 96-272 was expanded to require the state courts to make "reasonable efforts" findings for cases under its jurisdiction involving children in voluntary and involuntary out of home placements prior to disposing of the cases.

The Connecticut Juvenile Court, in conjunction with the Department of Children and Families, the state's child welfare agency has established timeframes and procedures for the Court to make appropriate findings relative to P.L. 96-272. The impact over time on the Juvenile Court has been increased litigation with pressure to dispose of cases more quickly. In addition, the constraints on judicial time have been further strained-by the requirement to review cases of children in out of home placement at six and eighteen month intervals.

In 1983, the Court Services Unit was established in the Superior Court for Juvenile Matters.

Court Services Officers were placed in four court locations. The position was created to assist the Court in neglect related matters to provide a variety of services to these cases. Professional staff with knowledge of the Juvenile Court and child welfare focus on case management and case coordination and assist the Juvenile Judges with various in court and out of court case related tasks. The Court Services Officers are trained in mediation techniques and take a primary role in scheduling and conducting the case status conference in the Juvenile Court. The program has been expanded and now employs six Court Services Officers assigned to nine court locations.

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About the Program

The focus of child protection litigation moved toward permanency planning and reunification in the mid 1980s. It placed increased pressure on the Connecticut Juvenile Court to more quickly dispose of cases and to review child protective services planning for children in out of home placement. The tendency, which was identified through the case management efforts of the Court Services Officers, had been to allow cases to remain pending without resolution for extended

periods of time to allow CPS to work with the families. Often children remained in either voluntary or involuntary placements throughout that time without firm judicial determinations regarding their best interests and dispositional decisions.

There were frequently multiple court appearances and continuances in these cases resulting in significant backlogs of cases and ineffective use of judicial time and resources. From a child welfare perspective, the passage of time for these children and families without meaningful plans which could be measured by the judicial review process was of considerable concern to the juvenile judges hearing these cases and the court services officers who focused on the ongoing progress of these cases.

Mediation as an alternative method of resolving disputed matters was already being utilized in court based programs for custody/visitation in the family court and with minor delinquency and status offense i.e. truancy, beyond control and run-aways in the juvenile court.

The concept of mediation was seen in a favorable light by the administration's leadership and judges. A proposal was developed and later refined with the assistance of consultants who observed and evaluated the process (Shaw and Phear, 1991). A procedures manual was developed and training was designed and conducted. Throughout this process key professionals who would later be in a position to participate in the mediation themselves were consulted and involved. This proved to be a significant aid to the program in both the development and implementation stages. The Assistant Attorney General, children’s and parents' attorneys and CPS social workers who participated in the process were later able to serve as the program's spokespersons to others who's cases were referred for mediation.

The Case Status Conference is a judicially sanctioned process which utilized mediation techniques to provide a formalized vehicle whereby all the parties involved in litigation have a neutral forum in which to-discuss both the social services and legal issues which impact a case. The outcome of Case Status Conferences is the formulation of a written plan which encompasses each aspect of any agreement reached by the parties to address the issues identified. The agreement is then presented to the Court for the judge's final approval. The goals of the Case Status Conference are to:

• to prove an alternative to time consuming and often damaging litigation.
• to promote settlements with the input of all parties.
• to develop plans which safeguard the well being of the children before the court and empower parents to participate in the court process.
• to develop plans which are judicially sound, which emphasize the stated purpose of state and federal guidelines and statutes.
• protect the legal rights and interests of all involved.

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About the Process

Case Status Conferences can be held at any point during the pendency of a child protection proceeding or subsequent to the disposition of a case. The majority of Case Status Conferences

occur after the preliminary hearing. The judge can direct the parties to meet in a Case Status Conference, they may be held at the request of the CPS social worker made through their attorney, any party or counsel for any party to the case, or at the request of the Court Services Officer. The Case Status Conference is scheduled for a specific day and time for a duration of approximately one hour. Subsequent Case Status Conferences may be held in the same case if more time is necessary in a particular case or if during the mediation it is discovered that other information is needed or the participation by others not present would be helpful.

Necessary participants are the parents, the CPS social worker, the Assistant Attorney General, counsel for the CPS agency, counsel for the children, and parents and the Court Services Officer.

Other participants might include a Guardian Ad Litem for a minor or incompetent parent, other professionals involved with the family, other family members or significant others, and the children if deemed appropriate. The Court Services Officer serves as the neutral mediator/facilitator. In that role the Court Services Officer sets the stage for the conference and is responsible for assisting the parties present in identifying the issues in the case and directing and reframing the discussions in order that each individual has a full opportunity to make his or her position known and finally to help the participants shape an agreement.

The Case Status Conference has several stages which take place. As a mediator the Court Services Officer must understand each of the various stages. And must move the participants through each of the stages being sure that at each juncture all of the parties have a clear understanding of each other's position. The stages are:

1. Understanding the problem
2. Understanding the legalities
3. Reconfirming the Legal Situation
4. Understanding the Social Service needs
5. Summarizing the agreements

Some or all of the parties may be present at each stage. The mediator may be asked to meet with some of the parties separately from the larger group, a technique referred to as caucusing by mediation professionals.

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Confidentiality and Legal Considerations

It is important to clearly define the parameters of confidentiality which will be adhered to during the mediation. These parameters should be discussed and agreed to by all participants at the onset of the mediation. If the issue of the nature of the information which will or will not remain confidential is left unresolved, the potential for all present at the conference to be willing to bargain in good faith is diminished and the potential for meaningful resolution is jeopardized. In the Case Status Conference clear definition of the confidentiality of discussions has been established. National standards (SPIDR, 1991) with regard to confidentiality and the disclosure of information which would normally be confidential are also adhered to in the Case Status Conference.

Because the Case Status Conference occurs in a court setting, special consideration is given to the legal rights and responsibilities of each party. To a large extent, the responsibility for helping the participants in the mediation to understand their legal rights falls on the Court Services officer. It has proven advantageous to both the process and the parties to include counsel for the parties. The lawyers were initially concerned about information which would be shared in the mediation. However, involving the attorneys has resulted in the opposite effect. Because they are present and included in the process the discussions are much more open. And if they or their clients are concerned about the information being shared they are given the opportunity to discuss their concerns privately or in a caucus with the Court Services Officer.

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Outcome and Evaluation

Case Status Conferences has become an invaluable tool in the Connecticut Juvenile Court. Each year, at least half of all cases filed are diverted from litigation. A study done in 1992 (Thoennes, 1992) point to many of the positive benefits. It is generally concluded that the real difference between mediated and non-mediated cases is that mediated cases result in the parents and children receiving appropriate services and increase the likelihood of compliance with those services.

One final note should be made about those cases which do not result in a mediated agreement.

The process itself can help to identify and to narrow the issues which will be taken up at trial.

Counsel can stipulate to certain evidentiary issues and information. Issues which might have resulted in the filing of numerous pretrial motions, such as, motions for discovery and disclosure and the taking of depositions and the completion of interrogatories, are quite often avoided by the agreed upon exchange of information. The Court Service Officer is able to schedule trials in a more timely manner with adequate time set aside to hear the case in its entirety.

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Conclusion

The Connecticut Juvenile Court continues to look toward the future and innovations which might further improve the court's ability to status of litigation in child protection proceedings. Federal funding is currently being sought to study the scope of litigation in the Juvenile Court and to recommend and implement any needed improvements to the present system especially as it relates to "reasonable efforts" and making expedient and appropriate judicial determinations which focus on the "best interest of children".

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References

Shaw, M. and Phear, P. "Innovation in Dispute Resolution: Case Status Conferences for Child Protection and Placement Proceedings in the State of Connecticut." Family and Conciliation Courts Review, Vol. 29 No. 3, July 1991 270-290.

SPIDR, "Ethical Standards of Professional Responsibility", 1991.

Thoennes, N. "Mediation and the Dependency Court: The Controversy and Three Court's Experiences" . Family and Conciliation Courts Review, Vol. 29 No. 3 July, 1991 246-258.

Thoennes, N. "Alternatives to Adjudication in Child Abuse and Neglect Cases". (Report to S.J.I.) Alexandria, VA. The State Justice Institute (1992)

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PART II  OVERVIEW OF CASE STATUS CONFERENCES

GOALS

Case Status Conferences are conducted to help all parties involved reach a settlement that:

1. is an informed, timely, and dignified settlement
2. is consistent with public policy
3. is judicially acceptable
4. ensures the safety and well being of the children
5. maximizes the family's integrity and functioning
6. protects all parties legal rights and obligations.

These conferences are designed to help all the interested parties understand the current situation, including why the state is involved in this child's and family's life, and to understand the resulting legal and social issues. While settlement is always a possibility, this is not the primary goal of these conferences. If a final disposition must be judicially imposed, it will be easier for all concerned if the information that is necessary to an informed decision is developed collaboratively, and according to a schedule that is acceptable to all parties.

The conference is facilitated by a Court Services officer who is responsible for scheduling and managing the conference. As the only neutral person present, it is the CSO's responsibility to ensure that the goals of the Case Status Conference are met.

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Understanding the current situation: Obtaining an overview of the areas that are most likely to be problematic.

• Present: All the involved professionals Confidentiality: total

Understanding the legalities and understanding and resolving the legal issues involved: Determining impediments to reaching a tentative agreement about the legal parameters.

• Present: Attorneys only Confidentiality: total
• Attorney Client Conferences: Ensuring that the lawyers' clients accept the legal parameter agreed to in the above category.

Confirming the legal parameters: Making sure that everyone is willing to proceed on the basis of the agreed on legal parameters exploring how best to proceed from this point.

• Present: Attorneys only Confidentiality: total

Understanding the family's social service needs: Determining how best to arrange the services that will meet the child's and the family's needs in accordance with the agreed on legal parameters.

• Present: Everyone present and involved Confidentiality: none

Summarizing agreements and preparing for the Judicial Review: Ensuring that there are no misunderstandings and that the agreements are workable; clarifying future responsibilities to the court.

• Present: Everyone present and involved Confidentiality: none

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OVERVIEW OF PARTIES INVOLVED:

Social Worker from the Department of Children and Families (DCF) - The social worker from DCF represents the department and is responsible both for advocating for the services that the state believes are needed, and for working with the family before, during, and after the final disposition of the case.

Assistant Attorney General (AAG) - The AAG who represents DCF is the advocate for the state's legal position. The AAG is required to develop and then advocate for the state's interests in the case according to strictly articulated legal limits.

Attorney for the Parents(s) - This attorney, whether assigned and paid by the state or privately retained by the parent(s), is required to counsel the parent(s) about their legal rights and obligations, and actively advocate for the parent's position.

Attorney for the Child - This attorney is required to advocate for the child's expressed interests. (S)he may not substitute his/her own beliefs as to the child's interests .

Parent(s) - The "parent" is usually the child's biological parent, but could also be an adoptive parent, or some other individual who has been legally designated as the child's guardian prior to the state's current intervention. When two parents are present, they may not hold the same views, and may be in strong disagreement with each other.

Child(ren) - A child will not normally be at the conference unless (s)he is able, and wants, to express an opinion.

Guardian ad Litem (GAL) for the child - When a child is too young to express what (s)he wants, or is mentally impaired, a GAL will be appointed to investigate what is in the child's best interests, and to make sure this information is considered at all proceedings involving the child's well being.

Guardian ad Litem for the parent(s) - When the child's parent is a minor, or when a parent is considered to be incapable of assessing what is in her/his best interests, the court will appoint a GAL to make an independent investigation, assess what is in the parent(s) best interests and then report to the court.

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PART III  GOALS OF THE MEDIATION PROCESS

To Assist All Parties Reach A Settlement Which:

1. Is informed, timely and dignified.
2. Is consistent with public policy.
3. Is judicially acceptable.
4. Ensures the safety and well being of the children.
5. Maximizes the family's integrity and functioning.
6. Protects all parties legal rights and obligations.

1. To investigate allegations of neglect and/or abuse against a child.
2. To make a determination about the validity of the allegations.
3. If allegations are validated, the worker is required to develop a       treatment plan for the child and the family.
4. Implement the treatment plan on behalf of the agency.
5. Represent the position of the agency in court proceedings.

1. To present the legal case on behalf of the CPS worker.
2. To protect the legal interests of the CPS agency.
3. To defend the allegations of abuse or neglect brought on behalf of the child.
4. To advocate for the CPS agency/worker's position.
5. To ensure that the State's goals are met.

1. To present the legal case on behalf of the Parent(s).
2. To protect the legal interest of the Parent(s).
3. To defend the allegations of abuse or neglect brought against the parent(s).
4. To conduct an independent assessment of the legal case against their client(s).
5. To help their client understand his/her legal rights.
6. To advocate for services to be incorporated into any dispositional orders which are in their client(s) best interest.
7. To monitor the ongoing progress of implementation of a CPS treatment plan.

1. To present the legal case on behalf of the Child.
2. To protect the legal interest of the Child.
3. To defend the allegations of abuse or neglect on behalf of the child.
4. To conduct an independent assessment of the legal case brought by the state.
5. To help their client to understand his/her legal rights.
6. To advocate for services to be incorporated into any dispositional orders which are in their client(s) best interest.
7. To monitor the ongoing progress of implementation of a CPS treatment plan.

1. To safeguard the child by making sure the court understands what is in the child's best interest.
2. To protect the child within the planning and negotiation process.
3. To be fully informed about all aspects of the child's life i.e. social, emotional physical and educational.
4. To conduct an independent assessment of the child's situation.
5. Make an independent assessment of what is in the child's best interest.
6. To articulate any information which is collected, much of which is not available to any other participant in the process.
7. To formulate an independent plan to safeguard the child's best interest.
8. To advocate for that plan.
9. To monitor the ongoing progress of implementation of a CPS treatment plan.

1. To feel and be safe.
2. To express their opinions.
3. To understand why the parents and professional think the way they do.
4. To fully participate in all aspects of their legal and CPS case.

1. To provide a safe, nurturing home for the child.
2. To understand and be able to articulate their own wants and needs.
3. To balance their own feelings and needs with those of the child.
4. To understand their legal rights and assist in their own legal defense.
5. To fully participate in all aspects of their legal and CPS case.

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SUGGESTED READING:

Mediation/Negotiation

Bargaining in the Shadow of the Law: The Case for Divorce. R. H. Mnookin and L. Kornhauser.

The Yale Law Journal, 88:950.1979.

The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain. David A. Lux and James K. Sabenes. The Free Press. 1986.

Negotiation Settlements. Jane McCarthy. American Arbitration Association. 1984.

The Mediation Process: Practical Strategies for Resolving Disputes. Christopher W. Moore. Jossey-Bass, San Francisco. 1986.

Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation. Jay Folberg and Alison Taylor, Jossey-Bass. 1984.

Dispute Resolution. Stephen B. Goldberg, Eric D. Green, and Frank E.A. Sander, Little Brown, Boston, 1985.

The Art & Science of Negotiation. Howard Raiffa. Harvard University Press. 1984.

Getting to Yes. Roger Fisher and William Ury. Houghton Mifflin. 1981

The Resolution of Conflict. Morton Deutsch, Yale University Press. 1978.

Effective Negotiation and Settlement. Gerald Williams. Copyright 1981.

The Negotiation Game. Chester L. Karrass. Thomas Y. Crowell. 1970.

Child Protection / Parent-Child Mediation

Mediation in Child Protection Cases: The Impact of Third Party Intervention on Parental Compliance Attitudes. Bernard Mayer, Jossev-Bass. 1989.

Parent-Child Mediation: A Challenge and a Promise. Margaret Shaw, Jossey-Bass, 1985.

Mediative Strategies in the Management of Child Sexual Abuse Matters. Robert D. Benjamin, Family and Conciliation Courts Review, Vol. 29, No. 3, July 1991, 221-245.

Mediation and the Dependency Court. Nancy Thoennes, Family and Conciliation Review, Vol 29, No. 3, July 1991, 246-258.

Innovation in Dispute Resolution: Case Status Conferences for Child Protection and Placement Proceedings in the State of Connecticut. Margaret Shaw and W. Patrick Phear, Family and Conciliation Courts Review, Vol. 29, No. 3, July 1991, 270-290.

Thoennes, N. "Alternatives to Adjudication in Child Abuse and Neglect Cases." Report to State Justice Institute, Alexandria, VA. The State Justice Institute (1992)

Journals that address negotiation issues:

Negotiation Journal Pleenum Publishing Co., 233 Spring, New York, New York 10001

The Conciliation Court Review Association of Family and Conciliation Courts, OHSU - Psychiatry GH149, 3183 S.W. Sam Jackson Park Rd., Portland, Oregon 97201

Mediation Quarterly Jossey-Bass Inc., 433 California Street, San Francisco, CA 94104