Kentucky Revised Statutes

Rules of Practice of the Jefferson Family Court

Rule 6. Dependency, Abuse, and Neglect

Dependency, Abuse, and Neglect Appendix

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE   

CASE NO. _____________________                         JEFFERSON FAMILY COURT

                                                         DIVISION __________

IN THE INTEREST OF CHILD(REN)

ORDER APPOINTING GUARDIAN AD LITEM

Good cause appearing, IT IS ORDERED that pursuant to KRS 625.041, 625.080 that a practicing attorney of this Court be, and is hereby, appointed Guardian ad Litem to protect the interest of child(ren) until the disposition of the case or unless sooner discharged by the Court subject to the "duties of a Guardian ad Litem" set forth on the reverse side of this Order and incorporated herein.

IT IS ALSO ORDERED that the said Guardian ad Litem shall serve effective immediately and shall receive reasonable fees and costs.

IT IS FURTHER ORDERED that the Guardian ad Litem shall:

A. Be allowed access to the child by the caretaker of the child whether caretakers individuals, authorized agencies or health care providers;

B. Have, upon presentation of this Order to any agency, hospital, organization, school, individual, or office, including, but not limited to the Clerk of this Court, human services and/or child caring agencies, public or private institutions and/or facilities, medical and mental health professionals, law enforcement agencies and the Attorney General, the authority to inspect and receive copies of any records, notes, and electronic recordings concerning the child that are relevant to the proceedings filed under this chapter without the consent of the child or individuals and authorized agencies who have control of the child;

C. Hold any information received from any such source as confidential, and shall not disclose the same except to the Court and where allowed by the Court, to other parties to this case and where provided by law;

D. Be given notice of all hearings and proceedings including, but not limited to, administrative, family, civil, criminal Grand Juries, or appellate;  and all conferences including, but not limited to, multi-disciplinary team meetings, individual educational program meetings or inter-agency cluster meetings involving the child and shall protect the best interest of the child therein, unless otherwise ordered by the Court;

E. Appear at all hearings, court proceedings, and monitor or attend case planning conferences to protect the best interest of the child unless otherwise directed by the Court;  and,

F. Have party status in any agreement or plan entered into on behalf of the child.

                                                   ________________________

                                                   JUDGE

                                                   ________________________

Court Date:               ________________________  DATE

Time:                     ________________________

Family Court #:           ________________________

THE DUTIES OF A GUARDIAN AD LITEM (GAL)

The Guardian ad Litem (GAL) is a full participant in the court proceeding and is the only party whose sole duty is to protect the child's needs and interests.  The GAL assumes the role of an advocate for the child's interests and in no way represents the petitioner (usually an agency) or the respondents (usually the parents or custodians).  A GAL is appointed because of the child's immaturity and lack of judgment.  Therefore, the GAL stands in the child's shoes and exercises substitute judgment for the child.

In fulfilling this child centered role, the GAL performs ten important and interrelated duties.  The GAL:

A. Acts as an independent fact finder (or investigator) whose task it is to review all relevant records and interview the child, parents, social workers, teachers and other persons to ascertain the facts and circumstances of the child's situation;

B. Ascertains the interest of the child taking into account the child's age, maturity, culture and ethnicity including maintaining a trusting meaningful relationship with the child via face-to-face contact;

C. Seeks cooperative resolutions to the child's situation within the scope of the child's interest and welfare;

D. Provides information through testimony or report with recommendations to the Court to assure that all relevant facts are before the Court.

E. Appears at all hearings to represent the child's interest, providing testimony when required;

F. Explains the court proceedings to the child in language and terms that the child can understand;

G. Asks that clear and specific orders are entered for the evaluation, assessment, services, and treatment of the child and the child's family;

H. Monitors implementation of service plans and dispositional orders to determine whether services ordered by the Court are actually provided, are provided in a timely manner, and are accomplishing their desired goal;

I. Informs the Court promptly in writing or orally if the services are not being made available to the child and/or families, if the family fails to take advantage of such services, or if such services are not achieving their purpose and brings to the Court's attention any violation of orders, or new developments requiring the Court's attention;  and

J. Advocates for the child's best interests in mental health, educational, family court, juvenile justice, criminal justice, and other community systems.

GUIDELINES FOR ATTORNEYS REPRESENTING CHILDREN IN DEPENDENCY CASES

I. TRAINING

A. REQUEST PRIOR TO REPRESENTATION

Prior to being appointed to represent any party in a dependency matter, all attorneys should:

1. Be familiar with dependency law and related areas;

2. Visit a shelter/emergency foster home/juvenile detention center;  and,

3. "Actively participate" in at least three (3) dependency actions from the Temporary Removal Hearing or pretrial through disposition.  (One means of doing this is to spend a period of apprenticeship with experienced attorneys, which would involve all aspects of representing clients in dependency matters).

B. CONTINUING EDUCATION REQUIREMENTS

1. All attorneys should have at least eight (8) hours of mandatory continuing training each year.

2. Suggested subject areas of instruction include the following:

a. Child development;

b. Family dynamics, with an emphasis on cultural aspects of families;

c. Special resources for children/families;

i. Special education programs

ii. Regional centers

iii. Adoption assistance subsidies

iv. Victim witness assistance

v. Mental health services

vi. Social Security/SSI/AFDC, etc.

vii. Private insurance

viii. Other litigants (PI, family law, UCCJA, Parental Kidnapping Protection Act, Interstate Compact for the Placement of Children, Interstate Compact on Juveniles, Indian Child Welfare Act)

d. Substance abuse;

e. Reasonable efforts;

f. Risk assessment/case plans;

g. Adoptability issues;

h. Guardianship, including funding issues;

i. Placement preferences;

j. Relative placements;  and,

k. Writ/appeal procedures.

II. INVESTIGATION

Note:  All attorneys should investigate as necessary to ascertain the facts, including the interviewing of witnesses, and maintain written records available for inspection by judges at any time.  Attorneys should not rely solely on the report of the social worker.

A. INTERVIEWS

1. Child/Client--the attorney should determine the following from the client or social worker if appropriate:

a. Extent of contact agency has had with child prior to removal;

b. What services would have been helpful in avoiding removal;

c. If the child is old enough, his or her goals and concerns about placement and whether there are relatives or close family friends who would be willing to take the child;

d. Regarding the child, the attorney should:

i. Meet with child away from court setting and try to provide continuity and develop a trusting relationship.  Explain, in age-appropriate language, the nature of the attorney/client relationship;

ii. Visit child in his/her home and observe child and child's interactions with others in the home.  Assess the severity of the injuries and the child's general health and condition;

iii. Ask about and investigate resources that the child can think of, including relatives or friends;

iv. Regardless of the child's age, attempt to interview or at least observe the child.  Observations are helpful in determining the accuracy of the petition and court report, or the statements of witnesses or parties;  and,

v. Investigate the interests of the child beyond the scope of juvenile proceeding and report to the court other interests of the child that may be protected by other administrative or judicial proceedings.

2. Agency Social Worker

The attorney should determine:

a. Family's prior contacts with Child Protective Services;

b. Who made decision to remove child:  Child Protective Services worker or police;

c. Basis for removal, specific harms which removal was designed to prevent;

d. Alternatives to removal such as in-home services or removal of the perpetrator, and whether these services were considered prior to removal;  and,

e. Contacts agency has made with parent and child since child was removed.

3. Witnesses

Where appropriate the attorney should interview:

a. Representatives of other agencies with whom the family has been involved, either through Child Protective Services referral or on the family's own initiative;  and,

b. Persons who have had significant contact with the child and may have relevant information about the child.

B. DISCOVERY/DOCUMENT PRODUCTION

1. The attorney should obtain and review the agency's records.  Where necessary, attorneys for children should determine and utilize available discovery procedures.  The attorney should look for:

a. Case plan.  Was parent involved in its development? Are the goals in the plan related to the reasons for which child was removed?:

b. Services provided or requested by the family prior to the child's removal;

c. Arrangements for visitation;  and,

d. Projected date of the child's return.

2. The attorney should obtain and review all court pleadings and support documents.

3. The attorney should obtain and review all necessary and relevant records, including medical, psychological, school, etc.

C. CONSULTATION WITH EXPERTS

Attorneys should be familiar with local experts who can provide attorneys with consultation and testimony on the reasonableness and appropriateness of efforts made to maintain the child in the home.

III. HEARINGS

Note:  All attorneys should be aware of the statutory requirements regarding time limits and continuances.

A. JURISDICTION HEARING

1. Adjudication without trial:

a. If the attorney concludes, after full investigation and preparation, that the petition will probably be sustained, the attorney should so advise the client and request consent to discuss settlement of case, if appropriate;

b. The attorney should keep the client advised of all settlement discussions and communicate all proposals made by the other parties when appropriate;

c. Where client's participation in psychiatric, medical, or other diagnostic treatment program is significant in obtaining client's desired result, the attorney should so advise client;  and

d. The attorney should explore options to removal of child such as informal supervision, mediation, and intensive in-home services.

2. Where circumstances warrant, the attorney should promptly make any motions material to the protection of the client's rights, such as motions to dismiss the petition, to suppress evidence, or for mental examination.   Such motions should ordinarily be in writing and should be scheduled for hearing prior to the jurisdiction hearing.

3. Contested Jurisdiction Hearing:

a. Present all evidence relevant to the allegations in the petition obtained during the attorney's pretrial investigation;  and,

b. Attorney should be familiar with those statutes that deal with children as witnesses.

B. DISPOSITION HEARING

1. The attorney should be familiar with dispositional alternatives and community services that might be useful in the formation of a dispositional plan.

2. The attorney should investigate all sources of evidence that will be represented at the hearing and interview material witnesses.  The attorney also has an independent duty to investigate the client's circumstances, including such factors as previous history, family relations, economic condition, and any other information relevant to disposition.

3. The attorney, where appropriate, should seek to secure the assistance of psychiatric, psychological, medical or other expert personnel needed for purposes of evaluation, consultation, or testimony with respect to formation of a dispositional plan.  The attorney should inquire into local procedures for retention and appointment of experts.

4. Counseling of client prior to disposition, when appropriate:

a. The attorney should explain to client the nature of the hearing, the issues involved, and the alternative open to the court.  He should also explain fully the nature, obligations, and consequences of any proposed dispositional plan; and,

b. When psychological or psychiatric evaluations are ordered or arranged by the attorney prior to disposition, the attorney should explain the nature of the procedure and encourage the client's cooperation.

5. The attorney should examine fully any witness whose evidence is damaging to the client's interests and challenge the accuracy, credibility, and weight of any reports or other evidence before the court.

6. When a dispositional decision has been reached, it is the attorney's duty to explain the nature, obligations, and consequences of the disposition to the client, and the need for the client to cooperate with the dispositional orders.

C. REVIEW HEARINGS

1. Planning for the hearing:

a. All attorneys should confer periodically with their clients and the social worker and review:

i. Service plan;

ii. Extent of compliance with plan;  and,

iii. Continued appropriateness of plan.

b. In monitoring the provisions of dispositional services, the attorney should return the matter to court if necessary to protect the client's interest;  and,

c. Attorneys should make sure they receive a supplemental report and a notice of the hearing from the social worker or probation officer at least ten (10) calendar days before the hearings.

2. At all review hearings, attorneys for all parties should present evidence relevant to the appropriateness of the child's continued dependency and placement, including but not limited to, evidence regarding the provision of reasonable services and ensure that appropriate findings are made.

IV. SPECIAL CONSIDERATIONS FOR ATTORNEYS APPEARING IN DEPENDENCY ACTIONS

A. GENERAL

All attorneys appearing in dependency actions have the same general mandate:  to vigorously represent their client's interests within applicable legal and ethical boundaries.  This includes:

1. Investigating the allegations;

2. Advising client of risks and benefits of possible courses of action;

3. Determining clients' interests;  and,

4. Representing those interests vigorously to the Court and other parties.

The attorney must, first and foremost, strive to acquire and develop basic advocacy skills such as client interviewing, case investigation, negotiation and trial practice.

B. ATTORNEYS FOR CHILDREN

1. Communications skills/knowledge of child development:  Communicating with child clients for whatever purpose and especially with regard to legal matters may require efforts beyond those normally required for effective communications with adult clients.  Attorneys for children should therefore be especially sensitive to the child's background and stage of development.  Knowledge of the basic stages of child development will help the attorney develop that sensitivity and age-appropriate communications skills.  Effective establishment of any meaningful attorney-client relationship.  Knowledge of child development will also help the attorney to assess the evaluations that are so often a factor in dependency cases.

2. Investigation:

The attorney for the child has the same ethical duties as attorneys for the other parties to independently investigate the facts and conduct discovery (see previous section on INVESTIGATION).  In many cases a child will be especially concerned with issues regarding his or her placement.  The child's attorney should investigate as many placement alternatives as possibly appropriate to the child's situation and discuss these possibilities with the child. Knowledge of community and other resources independent of the child's social worker will be helpful in this regard.

3. Litigation practice and strategy:

Again, the child's attorney has the same rights and duties as other attorneys to prepare and conduct litigation in the furtherance of the child's interests. Knowledge of the substance and procedure of dependency actions is, of course, important for all attorneys.  The child's attorney should be especially aware of statutory or case law that pertains particularly to children who are the subject of dependency actions or their attorneys.

RESOURCE GUIDELINES IMPROVING COURT PRACTICE IN CHILD ABUSE AND NEGLECT CASES

RESOURCE GUIDELINES:  Improving Court Practice in Child Abuse and Neglect Cases, publishes by the National Council of Juvenile and Family Court Judges, Reno, Nevada 1995.  All rights reserved.

PRELIMINARY PROTECTIVE HEARING CHECKLIST

Persons Who Should Always Be Present At The Preliminary Protective Hearing:

A. Judge or judicial officer

B. Parents whose rights have not been terminated, including putative fathers

C. Relatives with legal standing or other custodial adults

D. Assigned caseworkers

E. Agency attorney

F. Attorney for parents (separate attorneys if conflict warrants)

G. Legal advocate for the child and/or GAL/CASA

H. Court reporter or suitable recording technology

I. Security personnel

Persons Whose Presence May Also Be Needed At The Preliminary Protective Hearing:

A. Age appropriate children

B. Extended family members

C. Adoptive parent(s)

D. Judicial case management staff

E. Law enforcement officers

F. Service providers

G. Adult or juvenile probation or parole officer

H. Other witnesses

Courts Can Make Sure That Parties and Key Witnesses Are Present By:

A. Requiring quick and diligent notification efforts by the agency;

B. Requiring both oral and written notification in language understandable to each party and witness;

C. Requiring notice to include reason for removal, purpose of hearing, availability of legal assistance;  and,

D. Requiring caseworkers to encourage attendance of parents and other parties.

Filing The Petition

A. A sworn petition or complaint should be filed at or prior to the time of the preliminary protective hearing.

B. The petition should be complete and accurate.

Key Decisions The Court Should Make At The Preliminary Protection Hearing:

A. Should the child be returned home immediately or kept in foster care prior to trial?

B. What services will allow the child to remain safely at home?

C. Will the parties voluntarily agree to participate in such services?

D. Has the agency made reasonable efforts to avoid protective placement of the child?

E. Are responsible relatives or other responsible adults available?

F. Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child?

G. Will implementation of the service plan and the child's continued well-being be monitored on an ongoing basis by a GAL/CASA?

H. Are restraining orders, or orders expelling an allegedly abusive parent from the home appropriate?

I. Are orders needed for examinations, evaluations, or immediate services?

J. What are the terms and conditions for parental visitations?

K. What consideration has been given to financial support of the child?

Additional Activities At The Preliminary Protective Hearing:

A. Reviewing notice to missing parties and relatives;

B. Serving the parties with a copy of the petition;

C. Advising parties of their rights;  and

D. Accepting admissions to allegations of abuse or neglect.

Submission Of Reports To The Court

A. The Court should require submission of agency and/or law enforcement reports at least one hour prior to the preliminary protective hearing.

B. Reports to the Court should describe all circumstances of removal, any allegations of abuse or neglect, and all efforts made to try to ensure safety and prevent need for removal.

The Court's Written Findings Of Fact and Conclusions Of Law At The Preliminary Protective Hearing Should:

Be written in easily understandable language which allows the parents and all parties to fully understand the Court's order.

If Child Is Placed Outside The Home:

A. Describe who is to have custody and where child is to be placed;

B. Specify why continuation of child in the home would be contrary to the child's welfare (as required to be eligible for federal matching funds);

C. Specify whether reasonable efforts have been made to prevent placement  (including a brief description of what services, if any, were provided and why placement is necessary);  and,

D. Specify the terms of visitation.

Whether Or Not The Child Is Returned Home:

A. Provide further directions to the parties such as those governing future parental conduct and any agency services to the child and parent agreed upon prior to adjudication.

B. Set date and time of next hearing.

Resource Guideline:

It is recommended that sixty (60) minutes be allocated for each preliminary protective hearing.

ADJUDICATION HEARING CHECKLIST

Persons Who Should Always Be Present At The Adjudication Hearing:

A. Judge or judicial officer

B. Parents whose rights have not been terminated, including putative fathers

C. Relatives with legal standing or other custodial adults

D. Assigned caseworker

E. Agency attorney

F. Attorney for parents (separate attorneys if conflict warrants)

G. Legal advocate for the child and/or GAL/CASA

H. Court reporter or suitable technology

I. Security personnel

Persons Whose Presence May Also Be Needed At The Adjudication Hearing:

A. Age-appropriate children

B. Extended family members

C. Adoptive parents

D. Judicial case management staff

E. Law enforcement officers

F. Service providers

G. Other witnesses

Key Decisions The Court Should Make At The Adjudication Hearing:

A. Which allegations of the petition have been proved or admitted, if any;

B. Whether there is a legal basis for continued court and agency invention;  and,

C. Whether reasonable efforts have been made to prevent the need for placement or to safely reunify the family.

Additional Decisions At The Adjudication Hearing:

If the disposition hearing will not occur within a short time after the adjudication hearing, the judge may need to make additional temporary decisions at the conclusion of adjudication.  For example, the judge may need to:

A. Determine where the child is to be placed prior to disposition hearing;

B. Order further testing or evaluation of the child or parents in preparation for the disposition hearing;

C. Make sure that the agency is, in preparation for disposition, taking prompt steps to evaluate relatives as possible caretakers, including relatives from outside the area;

D. Order the alleged perpetrator to stay out of the family home and have no contact with the child;

E. Direct the agency to continue its efforts to notify non-custodial parents, including unwed fathers;  and

F. When the child is to be in foster care prior to disposition, set terms for visitation, support, and other intra-family communication including both parent-child and sibling visits.

The Court's Written Findings of Fact and Conclusions of Law At The Adjudication Hearing Should:

A. Accurately reflect the reasons for state intervention.

B. Provide sufficiently detailed information to justify agency and court choices for treatment and services.

C. Provide a defensible basis for refusing to return a child home or terminating parental rights if parents fail to improve.

D. Be written in easily understandable language so that all parties know how the Court's findings relate to subsequent case planning.

E. Set date and time of next hearing, if needed.

Resource Guidelines

It is recommended that a minimum, of thirty (30) minutes be allocated for each adjudication hearing.

DISPOSITION HEARING CHECKLIST

Persons Who Should Always Be Present At The Disposition Hearing:

A. Judge or judicial officer

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