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THEGUARDIANN A T I O N A L A S S O C I A T I O N O F C O U N S E L F O R C H I L D R E N

VOLUME 23 / NUMBER 3 / SUMMER 2001

NACC DENVER COLORADO / WEB SITE: NACCchildlaw.org

I N T H I S I S S U E

NACC 24TH NATIONAL CHILDREN’S LAW CONFERENCE . . . . 1

CASE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6LANDMARK ASFA DECISION ESTABLISHES ENFORCEABLE FEDERAL STATUTORY RIGHT TO ADOPTION OPPORTUNITIES FOR FOSTER CHILDREN

FEDERAL POLICY UPDATE . . . . . . . . . . . . . . . . . 12FY2002 APPROPRIATIONS, JUVENILE JUSTIVE AND DELIQUENCY PREVENTION, CHILD WELFARE LEGISLATION, AND ADMINISTRATION DEVELOPMENTS

CHILDREN’S LAW NEWS . . . . . . . . . . . . . . . . . . . 132001 OUTSTANDING LEGAL ADVOCATE AND STUDENT ESSAY AWARDS ANNOUNCED

AFFILIATE NEWS . . . . . . . . . . . . . . . . . . . . . . . . . 152001 OUTSTANDING NACC AFFILIATE AWARD ANNOUNCED

NACC 24th National Children’s Law ConferenceAdvocacy for Children and Families: Moving from Sympathy to Empathy

Loews Coronado Bay Resort, San Diego / Coronado, CaliforniaSeptember 29 – October 2, 2001

NACC MEMBERS RECEIVE A 25% REGISTRATION DISCOUNT!

National Association ofCounsel for Children

To achieve thewell-being of children

by promotingmultidisciplinary excellencein children’s law, establishingthe legal interests of children

and enhancing children’slegal remedies

PresidentKatherine S. Holliday, Esq.Charlotte, North Carolina

Vice PresidentCandace J. Barr, Esq.Minneapolis, Minnesota

TreasurerChristopher N.Wu, Esq.

San Francisco, California

SecretaryJohn H. Stuemky, MD

Oklahoma City, Oklahoma

Past PresidentAngela L. Adams, Esq.Santa Fe, New Mexico

Executive DirectorMarvin VentrellDenver, Colorado

Policy RepresentativeMiriam Rollin

Washington, D.C.

NACC

MISSION

EXECUTIVE COMMITTEE

Volume 23 • Number 3 • Summer 2001

The Guardian is published quarterly by the National Association of Counsel for Children,Imhoff Pavilion, 1825 Marion Street, Suite 340 Denver, Colorado 80218303-864-5320 • FAX: 303-864-5351E-Mail: [email protected] Site: http://NACCchildlaw.orgEditor: Marvin VentrellCase Editor: Laoise King© Copyright 2000 NACC

Subscription Price:The Guardian is sent to all members ofthe National Association of Counsel for Children.Membership in the organization is $75 annually.To join, send application on page 16 to National Association of Counsel for Children.

The Guardian is printed on recycled paper.

Table ofContents

NACC 24TH NATIONAL CHILDREN’S LAW CONFERENCE

Advocacy for Children and Families: Moving from Sympathy to Empathy . . . . . . . . . 1

CASES

ASFA / Child’s Right to Adoption (Wisconsin Federal District Court) . . . . . . . . . . . . 6

Agency Liability (10th Circuit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Private Custody / Appointment of GAL (Missouri) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Emotional Abuse (Florida) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Role of Child’s Attorney / Trial and Appellate Counsel (California) . . . . . . . . . . . . . . 10

Delinquency / School Violence (Wisconsin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEDERAL POLICY NETWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

FEDERAL POLICY UPDATE

FY2002 Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Juvenile Justice and Delinquency Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Child Welfare Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Administration Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CHILDREN’S LAW NEWS

Conferences and Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Publications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

News (2001 Advocacy and Student Essay Awards) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Amicus Curiae Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jobs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

AFFILIATE NEWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

NACC 2001 Outstanding Affiliate Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

NACC MEMBERSHIP APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

NACC CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PUBLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Back Cover

REFERRAL NETWORK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Back Cover

NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN

SUMMER 2001 1

CONFERENCE SPONSORSCosponsorsCHILDREN’S HOSPITAL SAN DIEGO /

CENTER FOR CHILD PROTECTION

CASEY FAMILY PROGRAMS

FREDDIE MAC FOUNDATION

JUDICIAL COUNCIL OF CALIFORNIA CENTER FOR FAMILIES, CHILDREN, AND THE COURTS

KEMPE CHILDREN’S FOUNDATION

NATIONAL CALL TO ACTION

NATIONAL COUNCIL OF JUVENILE ANDFAMILY COURT JUDGES

STATE BAR OF CALIFORNIA, FAMILY LAW SECTION

UNIVERSITY OF OKLAHOMA – SECTION OF GENERAL AND EMERGENCY PEDIATRICS AND THE CENTER ONCHILD ABUSE AND NEGLECT

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW / CHILDREN’S ADVOCACY INSTITUTE

Cooperating OrganizationsAmerican Academy of Pediatrics

American Bar Association Center on Children and the Law

American Humane Association, Children’s Services

American Professional Society on the Abuse of Children

Bar Association of San Francisco

California Department of Social Services, Legal Division

California Professional Society on the Abuse of Children

Juvenile Law Center, Philadelphia

Lawyers Club of San Diego

Los Angeles Affiliate of the NACC

National Clearinghouse on Child Abuse andNeglect Information, Children’s Bureau, U.S.Department of Health and Human Services

National Court Appointed Special AdvocateAssociation

Northern California Association of Counsel for Children

San Diego Volunteer Lawyer Program

State Bar of California

National Association of Counsel for Children

24th National Children’s Law ConferenceSep 29 – Oct 2, 2001 ■ San Diego / Coronado, CA

THE CONFERENCEAdvocacy for Children and Families: Moving from Sympathy to Empathy is the 24thNational Children’s Law Conference of the NACC. The conference is designed for professionals from the fields of law, medicine, mental health, social work, and education. The program focus is the practice of law for children and families through interdisciplinary training and education.

The conference is open to anyone interested in child welfare, juvenile justice, and family law.

The conference is comprised of General Sessions and Workshops. Workshops are organized along 4 tracks:

1 - Abuse & Neglect 3 - Custody & Visitation2 - Juvenile Justice 4 - Policy Advocacy

You are free to sign up for and attend sessions in different tracks. The multidiscipli-nary nature of the conference includes attorney, judicial, law enforcement, socialwork, physician, and mental health training. NACC conferences are rated highly by participants for content, administration, networking opportunity, and enjoyment.The conference is the product of 23 years of experience in the field of children’s law.

CONTINUING EDUCATION CREDITSThe following jurisdictions have pre-approved the conference for the following continuing education credits:

CA CO__________________

Continuing Legal Education: 20 30CLE Ethics Available: 1.5 1.8

Uniform Certificates of Attendance will be provided to allow for credit in other statesand disciplines. NACC conferences are typically approved by the continuing educa-tion agencies in most jurisdictions and disciplines.

SAN DIEGO / CORONADO, CALIFORNIAwww.sandiego.org

This year the NACC conference comes to San Diego and Coronado, California. The conference will be held on Coronado Island, connected to San Diego by the San Diego Coronado Bay Bridge. Coronado is easily accessible and is less than a 10-minute drive from downtown San Diego. The conference will be held at the LoewsCoronado Bay Resort and attendees will have the opportunity to enjoy an islandresort, Coronado Island, and all that San Diego has to offer. Blessed with great weather,natural beauty, and a rich cultural heritage, San Diego offers a wide variety of thingsto do and see. From Mexico to the charming inland and coastal communities in thenorth, to the glorious mountains and desert in the east, to a vibrant and bustlingdowntown, San Diego and Coronado form a perfect conference location. For moreinformation on San Diego and Coronado, contact:

San Diego Convention and Visitors Bureau Coronado Visitors Bureauwww.sandiego.org www.coronado.ca.us619-236-1212 619-437-8788

ADVOCACY FOR CHILDREN AND FAMILIES:Moving from Sympathy to Empathy


2 SUMMER 2001

ACCOMMODATIONSLoews Coronado Bay Resort www.loewshotels.com/coronadohome.html

The conference will take place at the beautiful and luxuriousLoews Coronado Bay Resort. Located on a private peninsula inSan Diego Bay, 10 miles southwest of downtown San Diego andabout 15 minutes from San Diego International Airport, LoewsCoronado is a first class vacation and conference resort across thebay from San Diego on the edge of the Pacific. In addition to thestate of the art conference facilities and luxurious rooms, theresort offers activities including boat rentals, sailing lessons, poolsand jacuzzis, gondola rides, bikes and rollerblades, arts and crafts,health club, tennis, kids activities and more.

A special conference room rate of $135 (about half the usual rate)single or double is available for NACC conference attendees. Aroom block has been reserved for the NACC from September 28through October 3. The hotel will honor the reduced room rate 3 days before and 3 days after the block if rooms are available. We anticipate that the room block will sell out early so pleasesend in your conference registration and then make your hotelreservations right away. To receive the discounted rate, hotel reser-vations must be made by August 29, although there is a possibilitythe room block will have sold out by then as well. To make yourhotel reservations, contact Loews Coronado Bay Resort, 800-81-LOEWS or 619-424-4000; 4000 Coronado Bay Road, Coronado,CA 92118. Refer to NACC Children’s Law Conference.

If the room block is sold out, contact the NACC for a list of alternate hotels, 1-888-828-NACC.

DISCOUNTED TRAVEL AND AIRPORT TRANSPORTATIONSpecial discounted travel for conference attendees is availablethrough United Airlines and Delta Airlines. Both United and Deltaare offering discounted fares to conference attendees for travelbetween September 26 – October 5, 2001. For reservations or moreinformation, call John Coxhead with TravelCorp at 1-800-222-9229and refer to the NACC conference. You can also contact the airlinesdirectly: Delta at 1-800-241-6760, meeting code 177331A; United at1-800-521-4041, meeting code 551BW.

Taxi and shuttle service is available to Loews Coronado Bay Resortfrom the airport. Cloud 9 Shuttle offers discounted rates to Loews(approximately $13 each way). Use the courtesy phone in the air-port baggage claim area to locate shuttle boarding.

LUNCHEONS The following optional luncheons are scheduled:

Luncheon 1 (Sunday) You Can’t Believe Her, She’s Just a Kid, a presentation by John E.B. Myers, Professor of Law, University of the Pacific, McGeorge School of Law and author of the treatise“Evidence in Child Abuse and Neglect Cases.” The cost of thisluncheon is $30 per person in addition to the registration fee andspace is limited. Please sign up on the registration form.

Luncheon 2 (Tuesday) A luncheon featuring child advocacy tablediscussions. Various children’s topics will be assigned for table dis-cussion facilitated by members of the NACC National Board ofDirectors. This is an excellent opportunity to network. The cost

of this luncheon is $30 per person in addition to the registrationfee and space is limited. Please sign up on the registration form.

FAMILY VACATIONSan Diego and the Loews Coronado Bay Resort are wonderful familyvacation destinations. Consider planning a family vacation aroundthe NACC conference. Loews offers a variety of family and chil-dren’s activities, as well as childcare services. For more information,contact the Loews concierge at 619-424-4000 extension 6300.

EXHIBITSExhibit space will be provided to sponsors, vendors, children’s lawprograms, and NACC affiliates. Space is limited and will be soldon a first-come, first-served basis. Please contact the NACC officefor details and reservation of space.

CONFERENCE LUNCH BANQUETThe NACC has arranged a special conference luncheon banquetfor all conference attendees on Monday, October 1. There is noadditional charge for registered conference attendees but you mustcheck the banquet box on the registration form. The 2001Outstanding Legal Advocacy, Student Essay, and OutstandingAffiliate awards will be presented and the banquet will concludewith guest speaker, award winning humorist, and former juvenileprobation officer Michael Pritchard. Limited space is available forguests of conference attendees at $40 per person. Please completethe Conference Banquet section of the registration form.

NEW MEMBER ORIENTATIONA special new member / first time attendee orientation is sched-uled for Sunday morning. Continental breakfast will be provided.Newcomers and interested veterans are invited to come and learnmore about the NACC.

REGISTRATION NACC members receive a registration discount of over 25%. Space at the conference is limited so please register early.

Cancellation Policy

Cancellations postmarked on or before August 29, 2001 willreceive a refund minus a $50 processing fee. Cancellations post-marked after August 29, 2001 will not receive a refund.

Registration

Early Registration Regular Registration(postmarked by Aug 29) (postmarked after Aug 29)

NACC Member: $270 NACC Member: $295Non-Member: $365 Non-Member: $395

Non-member registration includes a one-year membership in theNACC. All participants will receive the 2001 NACC Children’sLaw Manual.

You may register by mail, fax or phone. The NACC acceptschecks, purchase orders, and credit cards (Visa or MasterCard).Payment or Purchase Order must accompany registration.Purchase Orders must be paid within 30 days.

DISABILITIESPlease advise the NACC of any meeting access accommodationsyou may require. If you will need accommodation, please contactthe NACC as soon as possible.

ADVOCACY FOR CHILDREN AND FAMILIES:Moving from Sympathy to Empathy

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SATURDAY, SEPTEMBER 29, 2001

2:00 – 5:00 Conference Registration

5:00 – 6:00 Cocktail / Hors d’oeuvre Reception

6:00 – 6:15 Welcome

Katherine Holliday, NACC Board PresidentMarvin Ventrell, NACC Executive Director

6:15 – 6:30 Opening Remarks

Hon. Leonard P. Edwards, SupervisingJudge of the Juvenile Dependency Court –Santa Clara County California SuperiorCourt / Vice President – National Councilof Juvenile and Family Court Judges

6:30 – 7:30KEYNOTE PRESENTATIONAdvocacy for Children and Families: Moving From Sympathy to Empathy

Voices: A Presentation by the Santa FeHigh School Drama Department

Multiple Transitions: A Young Child’s Pointof View About Foster Care and Adoption

The NACC 2001 conference opens withthe voices of youth. This year’s theme,moving from sympathy to empathy, is aconcept which comes out of the NACC’sYouth Empowerment Initiative. It is basedon the belief that the most effective advo-cacy comes not just from adult concernsfor children’s welfare, but from an under-standing of circumstances from the child’sperspective. Such an empathetic, ratherthan merely sympathetic response,empowers children and youth and gives them a greater voice in the process.Voices is a dramatic presentation of experiences from within the child welfaresystem from the perspective of the youthin the system. The evening will concludewith a powerful video on abuse, removaland multiple placements from the voiceof a young child.

7:30 Dinner On Your Own

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SUNDAY, SEPTEMBER 30, 2001

7:30 Conference Registration Open

8:00 – 9:00 New Member / First Time Attendee Orientation / Continental Breakfast

8:30 – 9:00 Continental Breakfast

9:00 – 10:00 GENERAL SESSION 1Zero Tolerance: Resisting the Drive for Punishment

Bernardine Dohrn, JDWilliam Ayers, Ed.D.

10:00 – 10:30 Coffee Break

10:30 – 12:00GENERAL SESSION 2Attachment, Bonding and ReciprocalConnectedness: Limitations of AttachmentTheory in the Juvenile and Family Court

David Arredondo, MDHon. Leonard P. EdwardsSPONSORED BY THE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES

12:00 – 1:30 LUNCHEON 1

You Can’t Believe Her, She’s Just a Kid

John E.B. Myers, JD(Separate registration and fee required.)

or LUNCH ON YOUR OWN

1:30 – 3:00CONCURRENT SESSION A

Track 1 – Abuse & NeglectThe Adoption and Safe Families Act:2001 Case Law ReviewCecilia Fiermonte, JD/MA

Track 2 – Juvenile JusticeTranscending Boundaries BetweenJuvenile Justice and Child Welfare: What Lawyers Need to KnowRobert Schwartz, JD

Track 3 – Custody, Visitation & Adoption

Conducting Scientifically Crafted Child Custody EvaluationsJonathan Gould, Ph.D. H.D. “De” Kirkpatrick, Ph.D.

Track 4 – Policy AdvocacyImpact Litigation as a Tool for Policy AdvocacyMarcia Lowry, JDMadelyn Freundlich, JD/MSW

3:00 – 3:30 Catered Break

3:30 – 5:00CONCURRENT SESSION B

Track 1 – Abuse & NeglectFamily to Family: Four Core Strategiesfor Improving Your SystemMarsha Rose Wickliffe, JD

Track 2 – Juvenile JusticeRepresenting Youth in Adult CriminalProceedings: Practice Implications of theABA White PaperRobert Shepherd, LLB


Effective Intervention in DomesticViolence and Child Maltreatment Cases:Guidelines for Policy and Practice (TheNCJFCJ Greenbook) Hon. Katherine LuceroCarol Barnett, JD

Track 4* – All Tracks

Legal and Ethical Dilemmas forAttorneys in Children’s CourtAngela Adams, JDDavid Katner, JDHenry Plum, JDMarvin Ventrell, JD

*APPROVED FOR ETHICS CREDIT

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MONDAY, OCTOBER 1, 2001

8:00 Hospitality / Networking Lounge Open


9:00 – 11:00CONCURRENT SESSION C

Track 1 – Abuse & Neglect

Fostering Independence: The ChaffeeIndependence Program and OtherSupports for Youth Transitioning toAdulthoodRobin Nixon, MAAdam Cornell, JDJudith Mayer, MSWModerator: Ellen Jones, JD

SPONSORED BY CASEY FAMILY PROGRAMS

Track 2 – Juvenile Justice

Humanizing Demonized Kids in theCourtroomPaul Mones, JDRobert Shepherd, LLB


Assuring a More Child CenteredApproach to Custody Disputes: Improving Child Representation andJudicial Decision-MakingAnn Haralambie, JD

Track 4 – Policy Advocacy

Policy Advocacy for Children and Youth:A Practical Skills TrainingMiriam Rollin, JDLaoise King, JD

11:00 – 11:30 Exhibits / Coffee Break


SUMMER 2001 3

Conference Program


4 SUMMER 2001

11:30 – 1:30CONFERENCE BANQUET

(Included in registration fee – please indicate attendance on registration form.)

Presentation of NACC 2001 OutstandingLegal Advocacy Award, Law Student EssayAward and Outstanding Affiliate Award

Guest Speaker: MICHAEL PRITCHARD

Michael Pritchard is a nationally acclaimedentertainer and child advocate. Drawingon his background as a probation officer,educator and comedian, Michael Pritchardhas inspired audiences across the country.Featured in Time Magazine and on CNNas “Somebody Who’s Making a Difference,”he has won both the California ProbationOfficer of the Year Award and the SanFrancisco International ComedyCompetition. Although his resumeincludes numerous film and televisionappearances including The Tonight Show,he has dedicated the majority of hiscareer to working with youth. He recentlyreceived an Emmy nomination for his 5th highly acclaimed PBS series,Saving Our Schools.

1:30 – 3:00CONCURRENT SESSION D


The Lost Children of Wilder: The Epic Struggle to Change Foster CareNina BernsteinMarcia Lowry, JD

Copies of Ms. Bernstein’s book, The LostChildren of Wilder, will be available forpurchase and author signing.


School Discipline / School ViolencePaul Mones, JDRobert Schwartz, JD


Helping Divorcing Parents to Remain Child FocusedEugene White, Ph.D. Ellen White, RN/MSW


Youth Involvement in Child WelfareAdvocacy: Empowering Youth andImproving OutcomesRobin Nixon, MAAdam Cornell, JD

SPONSORED BY CASEY FAMILY PROGRAMS


3:30 – 5:00CONCURRENT SESSION E


Attorney and Expert WitnessDemonstration: The Direct and CrossExamination of the Expert Witness in an Abuse and Neglect CaseKaren Steinhauser, JDJohn Stuemky, MD


Special Education Rights for Children inthe Juvenile Justice SystemPatricia Cromer, JDMargaret Dalton, JDHon. Sherri Sobel

Moderator: Sharon Kalemkiarian, JD


The GAL Team: Working ConstructivelyToward a Parenting PlanCindy Morris, JDRonal Smith, Ph.D.


Implementing a Child AdvocateInterdisciplinary Team Model of Child RepresentationAnn Collentine, MPPAMichael Hansell, JDJanice Montgomery, BSW

5:15 – 6:00FEDERAL POLICY UPDATE

Miriam Rollin, JD NACC Policy Representative

6:30 – 11:00Complimentary Buses To and FromDowntown San Diego

TUESDAY, OCTOBER 2, 2001

8:00 Hospitality Lounge Opens


8:30 – 10:00CONCURRENT SESSION F

Track 1 (A) – Abuse & NeglectChild Maltreatment: The Medicine ofNon-Accidental Trauma (Basic)Marilyn Kaufhold, MDModerator: John Stuemky, MD

SPONSORED BY SAN DIEGO CHILDREN’S HOSPITAL

Track 1 (B) – Abuse & NeglectMeasuring Improved Outcomes ThroughQuality Legal Representation of Children:A Best Practices Model – The RockyMountain Children’s Law CenterShari Shink, JD

Track 2 – Juvenile JusticeThe TeamChild Program: Working Together to Address Youths’ Underlying ProblemsMartha Stone, JD


The Parental Alienation Syndrome: A Critical Analysis of IssuesKathleen Coulborn Faller, Ph.D.

Track 4 – Policy AdvocacyAdvocating for State and Local FundingMargaret Brodkin, MSW Robert Fellmeth, JDModerator: Miriam Rollin, JD

10:00 – 10:30 Coffee Break

10:30 – 12:00CONCURRENT SESSION G

Track 1 (A) – Abuse & NeglectChild Maltreatment: The Medicine ofNon-Accidental Trauma (Advanced)Cynthia L. Kuelbs, MDModerator: Kendall Sprott, MD

SPONSORED BY SAN DIEGO CHILDREN’S HOSPITAL

Track 1 (B) – Abuse & NeglectBalancing Sibling Relationships andPermanency Through AdoptionWilliam Patton, JDLeslie Starr Heimov, JDDiana Elliott, Ph.D.Sari Grant

▼

Conference Program


SUMMER 2001 5

Track 2 – Juvenile JusticePrinciples of Restorative Juvenile JusticeDennis Maloney


Developmentally Appropriate Forensic Interview TechniquesMichael Lamb, Ph.D.

Track 4 – Policy AdvocacyPrenatal Drug Exposure: Policy Implications of Recent Studies and CasesSteven Ondersma, Ph.D. Melissa Tatum, JD

12:00 - 1:30 LUNCHEON 2Networking / Table Topics Discussion LuncheonFacilitated by NACC Board of Directors (Separate registration and fee required.)

or LUNCH ON YOUR OWN

1:30 – 3:00GENERAL SESSION 3How Old is Old Enough? A PanelDiscussion on Child Competency Issues

Thomas Lyon, JD / Ph.D.Constance Dalenberg, Ph.D.

Moderator: John E.B. Myers, JD


3:30 – 5:00 CLOSING SESSION

Creating Empathetic Systems: Using OurExperiences to Create a Child CenteredChild Welfare System

Hon. Richard FitzGerald, NACC National Advisory Board / Senior Judge,Commonwealth of Kentucky

5:00 ADJOURN

5:10 – 6:00CALIFORNIA NACC AFFILIATES MEETINGLA Affiliate of the NACC and NorthernCalifornia Association of Counsel forChildren

(All Interested Advocates Are Welcome)

Registration Form

Registration includes tuition, manual, reception, breaks, and banquet(and a 1 year NACC membership for non-member registrants)

Space at this conference is limited. Registrations will be filled based on date applications are received. If you will require handicap access to facilities or special assistance at the program, please contact the NACC as soon as possible.

The NACC 24th National Children’s Law Conference

NAME (MR / MS)

COMPANY / FIRM / AGENCY

ADDRESS

CITY / STATE / ZIP

TELEPHONE / FAX / E-MAIL

DEGREE / OCCUPATION

ETHNICITY (OPTIONAL) / BAR MEMBER NUMBER/STATE

Please indicate your choice for Sessions A–G by checking the track of your choice

CONFERENCE REGISTRATIONSaturday, September 29, 2001 through Tuesday, October 2, 2001

Early Registration Regular Registration(postmarked by 8-29-01) (postmarked after 8-29-01)

■■ NACC MEMBER $ 270 ■■ NACC MEMBER $ 295

■■ NON-MEMBER $365 ■■ NON-MEMBER $395

Registration Fee Enclosed $ ________________

Luncheon 1: You Can’t Believe Her, She’s Just A Kid

September 30 ____ reservation(s) @ $30 per person $ ________________

Luncheon 2: Table Discussions

October 2 ____ reservation(s) @ $30 per person $ ________________

Conference Lunch Banquet / October 1

■■ Yes, I will attend (included in registration fee) $ ________________

■■ I will bring ____ guest(s) @ $40 per person $ ________________

Total amount enclosed or charged $ ________________________________

Please charge my ■■ VISA ■■ MASTERCARD

NAME AS SHOWN ON CARD CARD #

EXPIRATION DATE SIGNATURE

SESSION A■■ Track 1■■ Track 2■■ Track 3■■ Track 4

SESSION B■■ Track 1■■ Track 2■■ Track 3■■ Track 4

SESSION C■■ Track 1■■ Track 2■■ Track 3■■ Track 4

SESSION D■■ Track 1■■ Track 2■■ Track 3■■ Track 4

SESSION E■■ Track 1■■ Track 2■■ Track 3■■ Track 4

SESSION F■■ Track 1 (A)■■ Track 1 (B)■■ Track 2■■ Track 3■■ Track 4

SESSION G■■ Track 1 (A)■■ Track 1 (B)■■ Track 2■■ Track 3■■ Track 4

0.00

MAILING CODE (See mailing label for code)

Please make checks payable to:National Association of Counsel for Children

Mail to: 1825 Marion StreetSuite 340Denver, CO 80218 303-864-5320Fax 303-864-5351Tax ID# 84-0743810

■■ I CANNOT ATTEND BUT WISH TO JOIN THE NACC. ENCLOSED IS $75.

ASFA / CHILD’SRIGHT TO ADOPTIONLandmark ASFA Decision EstablishesEnforceable Federal Statutory Right toAdoption Opportunities for Foster Children.Jeanine B. v. McCallum, No. 93-C-0547,U.S. District Court, Eastern District ofWisconsin, June 19, 2001, UnpublishedDecision. 12 pages.

By James Marsh, Director of Legal andPolicy Analysis at The Center for SocialWork Management

On June 19, 2001, federal district JudgeRudolph T. Randa entered a decision inthe long-running Jeanine B. litigationchallenging the operation of the fostercare system in Milwaukee. In anunprecedented decision, reported at2001 WL 748062, Judge Randa held thatthe Adoption and Safe Families Act of1997 creates a federal statutory right tohave the state:

1. Initiate a proceeding to terminateparental rights when a child has beenin foster care for 15 of the mostrecent 22 months;

2. At the same time, begin to identify,recruit, process, and approve aqualified family for adoption; and

3. Document any exceptions that applyunder 42 U.S.C. § 675(5)(E)(i)-(iii).

The decision was issued on a motion bythe plaintiffs, represented by Children’sRights, Inc. of New York City, to file anamended supplemental complaint addinga new cause of action based on ASFA.The state of Wisconsin, who is defendingthe suit, argued that the motion shouldbe denied because the plaintiffs failed tostate a claim upon which relief can begranted. Specifically, the defendants arguedthat the provisions of ASFA relied uponby the plaintiffs are too vague andamorphous to be judicially enforceable.

Judge Randa, in a careful analysis of thecase law concerning the plaintiffs’ 42

U.S.C. § 1983 claim, held that ASFAcreates substantial new federal statutoryrights for foster children. Specifically, aspart of the case review system establishedat 42 U.S.C. § 675(5)(E), ASFA requiresthe state to file a termination of parentalrights petition for children who have beenin foster care for 15 of the most recent22 months, unless, at the option of thestate, the child is being cared for by arelative; the state agency has documentedin the case plan a compelling reason thatfiling a petition is not in the child’s bestinterest; or the state has not provided to the family such services as the statedeems necessary for the safe return ofthe child to the child’s home.

Three-Part Blessing Test Satisfied

The court’s analysis of ASFA utilized theSupreme Court’s requirement set forth in Blessing v. Freestone, 520 U.S. 329, 340(1997) that there are “three factors whendetermining whether a particular statutoryprovision gives rise to a federal right. First,Congress must have intended that theprovision in question benefit the plaintiff.Second, the plaintiff must demonstratethat the right assertedly protected by thestatute is not so ‘vague and amorphous’that its enforcement would strain judicialcompetence.Third, the statute mustunambiguously impose a binding obligationon the states. In other words, theprovision giving rise to the asserted right must be couched in mandatoryrather than precatory terms.”

The Jeanine B. court quickly disposed ofthe first and third prongs of the Blessingtest finding that “the clear intent of[ASFA] is to benefit children in fostercare by ensuring prompt action withrespect to termination of parental rightsand preparation for adoption. Likewise,the provisions of subsection (5)(E) aremandatory, as evidenced by the use ofthe word ‘shall.’ ” p. 7.

The court gave more considered analysisto the second Blessing requirement that

the rights arising under ASFA be withinthe competence of the judiciary toenforce.The court held that “the corerequirement of subsection (5)(E) —timely initiation of proceedings toterminate parental rights — is not so‘vague and amorphous’ that itsenforcement would strain judicialcompetence.The statute is triggeredwhen a child has been in foster carecustody for fifteen of the most recenttwenty-two months.Thus, in contrast with CAPTA’s ‘vague and amorphous’ callfor a ‘prompt investigation’ of reportedchild abuse or neglect, the provision atissue here provides an objective yardstickfor determining timeliness.” p. 8.

The defendants challenged the court’sability to decipher the meaning of theterms “compelling reasons” and “reason-able efforts” in 42 U.S.C. 675(5)(E)(ii)-(iii).The use of the vague and amorphousterm “reasonable efforts” is what lead theSupreme Court in Suter v. Artist M., 503U.S. 347 (1992) to hold that anothersection of Title IV-E did not unambig-uously give foster children an enforceableright to prevent removal from theirhomes and reunification services.TheJeanine B. court agreed with Suter andheld that when ASFA uses “ill definedphrases” such as “compelling reasons” and“reasonable efforts,” the “rights created…become harder to define, much lessmanage.” p. 9

The plaintiffs, mindful of the limitationsestablished by Suter, did not ask the court to evaluate the state’s discretionaryfunction of documenting “compellingreasons” or making “reasonable efforts.”Instead, they asked the court to determineonly whether the state has timely filed apetition to terminate parental rights andbegun the required search for an adoptivefamily, or elected not to file and docu-mented one of the clearly definedexceptions.Thus, with respect to theexception in subparagraph (ii) — that the state document in the case plan acompelling reason for determining that


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Cases

filing a TPR petition is not in the child’sbest interest – the plaintiffs only sought toenforce their right to have this exceptiondocumented in the case plan.

Similarly, concerning the exception insubparagraph (iii), the plaintiffs did not ask the court to determine what effortsto reunify a family are reasonable. Rather,they merely sought the right to documen-tation that the exception does, in fact,apply. Based on these limited requests, thecourt held that the rights conferred underASFA are not “judicially unmanageable.”pp. 10-11.

New Enforceable Federal RightsUnder ASFA

Judge Randa held that the Adoption andSafe Families Act of 1997 created thefollowing enforceable federal statutory rights:

1. The right to have the state initiate aproceeding to terminate parental rightswhen a child has been in foster carefor 15 of the most recent 22 months;

2. The right to have the state, afterinitiating a proceeding to terminateparental rights, begin to identify, recruit,process and approve a qualified familyfor adoption; and

3. The right to have the state documentany exceptions that apply under 42U.S.C. § 675(5)(E)(i)-(iii).

Practice Tips

Foster children and their advocates havesecured a significant new right to adoptionservices under ASFA which will requireheightened response by states and publicand private child welfare agencies. Atminimum, the following best practicesshould be implemented immediately:

Every child who has been in fostercare for 15 of the most recent 22months must be evaluated immediatelyfor adoption or termination of parentalrights. In some jurisdictions, a perma-nency hearing must be held toevaluate the suitability of a change in goal to adoption/TPR. In others,the state agency can change the goalwithout court involvement. Unless oneof the ASFA exceptions exists, and iswell-documented in the case plan, thestate must file a TPR by the end of thechild’s 15th month in foster care.

In calculating the 15-month period, theASFA regulations allow some flexibility.In summary, the state:

(A) Must calculate the 15 out of themost recent 22 month period

from the date the child enteredfoster care as defined at 45 USC475(5)(F);

(B) Must use a cumulative method of calculation when a childexperiences multiple exits fromand entries into foster care duringthe 22-month period;

(C) Must not include trial home visitsor runaway episodes in calculating15 months in foster care.

The ASFA regulations require that states“apply the exceptions to filing a petitionfor TPR judiciously and on a case-by-casebasis…[T]he intent of the requirement tofile a petition for TPR for certain childrenwas to encourage State agencies to maketimely decisions about permanency forchildren in foster care.The exceptionswere developed to allow State agenciesto exercise individual case planning andseek an alternative permanent placementwhen adoption may not be appropriateor available for a child.”The agency isrequired to apply the exceptions “on a case by case basis that is in the bestinterests of an individual child.” A state is not permitted to have “laws that carveout groups of the foster care populationto be exempted from the requirement tofile a petition for TPR.”The determinationof what constitutes a ‘‘compelling reason’’must be based on the individual circum-stances of the child and the family.Therequirement to file a petition for TPR or to document an exception to therequirement is the state agency’s respon-sibility.The statutory language is clear thatfor a compelling reason, or any otherexception to the requirement to file apetition for TPR, there is no requirementfor a judicial determination. Any exceptionto filing a petition for TPR must be re-evaluated at the six-month periodicreview and the permanency hearing.

AGENCY LIABILITYTenth Circuit Court Of Appeals Holds ThatSocial Worker And Supervisor Are NotEntitled To Qualified Immunity UnderDeShaney Where Social Worker Created TheDanger Faced By The Children ByRecommending Placement With TheirAbusive Father And Failing To InvestigateSeveral Allegations Of Abuse. Social Worker’sSupervisor Was Not Entitled To QualifiedImmunity Because Her Failure To Train TheSocial Worker Properly Amounted ToDeliberate Indifference To The Rights Of TheChildren With Whom Her SubordinateCame Into Contact. Additionally,The CourtFound That The Law In This Area Was Well

Established At The Time Of The Events AndThus A Reasonable Official Would HaveKnown That His Or Her Actions WereUnconstitutional. Currier v. Doran, 242 F.3d 905, 2001 U.S. App. Lexis 2983 (10th Cir. 2001).

In April of 1993, Shirely Medina (Medina)a social worker for the Children,Youthand Families Department of the State ofNew Mexico (CYF), visited the home ofDevonne Juarez (Mother) to investigate areport of child neglect.The social workerfound Latasha and Anthony Juarez, whowere both under the age of four yearsold, in the care of their five-year-oldcousin.When the social workerdiscovered that Mother had left the state she removed Latasha and Anthonyfrom the home and delivered the childreninto the physical custody of CYF.

In May of 1993, CYF petitioned the New Mexico Children’s Court for anorder formally granting legal custody ofthe children to CYF. Medina stated in anaffidavit supporting the petition thatChristopher Vargas (Father), had notsupported the children and had allowedthem to live in “alarming conditions.”Another social worker,Tom Doran(Doran) learned that Father had a historyof financial irresponsibility, which includedhaving made only eight child-supportpayments in the preceding three years.On May 10, 1993, the Children’s Courtheld a custody hearing. Doran attendedbut said nothing about Vargas’ history ofchild-support payments.The Children’sCourt stated that “no parent, guardian,custodian or other person is able orwilling to provide adequate supervisionand care for the children.” Nevertheless,based on the recommendation of Medina,the court granted physical custody of thechildren to Father while keeping legalcustody with CYF.

At some point during the followingmonths, Father was also awarded legalcustody. On July 22, 1993, Doran visitedLatasha and Anthony at Father’s homewhere he noticed a small bruise onAnthony’s cheek. Father’s girlfriendclaimed the bruise was the result of a fallon the playground. On August 3, 1993,Anthony had another bruise when hearrived at the CYF office for a visit.Thisbruise was also attributed to a fall. Dorandid not further investigate either bruise.

Mother returned to New Mexico inAugust 1993. On August 25 andSeptember 16, 1993, Mother asserted tothe children’s guardian ad litem (GAL)that Father and his fiancée were physically


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abusing the children. Doran was toldabout at least one of these allegations, butfailed to investigate. On August 31, 1993,during the course of a comprehensivepsychological evaluation conducted atCYF’s request, Mother alleged thatFather’s fiancée punished Latasha andAnthony by dunking them in a bathtubfull of water. Doran learned of theseaccusations but failed to investigate.

On October 15, 1993, during a visitbetween Mother and the children at theCYF office, two bruises were noticed onLatasha’s back.When Latasha was askedwho gave her the bruises, she replied “Da,Da.” On October 20, 1993, the GAL forLatasha and Anthony sent letters toDoran and Doran’s Supervisor MelbaGonzales (Gonzales) urging a thoroughinvestigation of the recent observations of bruises. Doran did interview Fatherand his fiancée about the bruises, butthey explained that the bruises had beencaused by a bunk bed ladder which theyhad since thrown away.

On November 17, 1993, bruises werenoticed on Anthony’s face while he was in the CYF office. Father’s fiancée claimedthe bruises were the result of Anthony’sfall from a bunk bed. CYF then removedLatasha and Anthony from Father’s homeand placed them with relatives.Whenquestioned about the bruises onAnthony’s cheek, Father explained toDoran that he had bitten Anthony on thecheek while wrestling on the floor, butthat he did not think he had bittenAnthony “that hard.” Latasha made someremarks indicating that “Ta Ta” had bittenAnthony to punish him.There were alsobite marks on Latasha that Father couldnot explain. Doran prepared an affidavitfor a meeting with his supervisor,Gonzales, in which he indicated that thechildren would be subject to furtherabuse if permitted to stay with Father. Inthe meeting, however, Doran failed toadvocate strongly against return of thechildren to Father. Gonzales concludedthe children had to be returned to Father.

On January 10, 1994, a request for aninvestigation was made to another socialworker, Regina Sentell (Sentell). Sentelldiscovered bruises on Anthony’s buttocksbut concluded the bruises were the resultof a fall. During the visit, Latasha toldSentell that she was spanked with a belt.Six days later, the children’s GAL filed areport indicating that “Anthony andLatasha will be subject to further injury in their current home situation” andrecommended monitoring the situation.Despite this recommendation, Medina

and Doran instructed Mother to stopmaking allegations of abuse because itwas traumatizing the children. On March16, Doran received another allegation of abuse, Doran referred the allegation to Sentell. Upon investigation, Sentelldiscovered bruises on both Latasha andAnthony, but concluded the injuries werenot the result of abuse.

On April 16, 1994, Father poured boilingwater on Anthony, causing Anthonysevere burns over most of his body.When Doran learned of this incident, hewent to the home and removed Latasha,who was covered with bruises and tookher to the emergency room. Doctors at the emergency room indicated thatAnthony was bruised everywhere he wasnot burned. Anthony died in an intensivecare unit on May 3, 1994.

Plaintiffs, representatives of Latasha andAnthony, brought suit under 42 U.S.C.§1983 against social workers Doran,Medina and Sentell and SupervisorGonzales.The suit alleged that CYF socialworkers violated Latasha and Anthony’sfundamental rights under the FourteenthAmendment of the United States Consti-tution. Defendants moved for summaryjudgment claiming they were entitled toqualified immunity under DeShaney v.Winnebago County Dep’t of SocialServs., 489 U.S. 189 (1989). Additionally,Gonzales argued that even if DeShaneydid not foreclose Plaintiff ’s claims, the lawwas not clearly established at the time ofthe underlying events and thus she wasentitled to qualified immunity.

The district court held that DeShaneydid not preclude Plaintiffs’ claims.Thecourt also concluded that at the time of the events underlying the suit it wasclearly established that Defendants’alleged conduct could be the source of a constitutional violation.Thus, the courtdenied Defendants’ motions for summaryjudgment. Defendants appealed.

The United States District Court ofAppeals for the Tenth Circuit affirmed in part and reversed in part. In reachingits decision, the court reviewed the U.S.Supreme Court’s DeShaney decision.In DeShaney, the Supreme Court held“governmental agencies have noconstitutional duty to protect a citizenfrom acts of violence committed byprivate individuals.” However, the courtalso found that an exception to thegeneral rule exists if the state has createda situation that puts a child a risk ofdanger by a private individual.TheDeShaney court laid out six elements

which must be met for a situation to fallunder the creation of risk exception.Thefactors are:

“1) the charged state entity and thecharged individual actors created thedanger or increased plaintiff ’s vulnerabilityto the danger in some way; 2) plaintiffwas a member of a limited and specificallydefinable group; 3) defendants’ conductput plaintiff at substantial risk of serious,immediate, and proximate harm; 4) therisk was obvious or known; 5) defendantsacted recklessly in conscious disregard of that risk; and 6) such conduct, whenviewed in total, is conscience shocking.”

The Tenth Circuit applied this test to eachdefendant in the case. As to Doran, thecourt held he could be liable under thedanger creation exception to qualifiedimmunity.The court found that Dorancreated a danger by failing to investigatenumerous allegations of abuse; he wasdirectly responsible for the court ordergranting Father legal custody; his actionsplaced the children at obvious risk ofserious, immediate, and proximate harm;he consciously disregarded this risk; andthat these actions could be considered“conscious shocking” when viewed intotal.The court then noted that thechildren’s rights were sufficiently clear and established in 1993 and 1994 that a reasonable official would have under-stood that his conduct violated that right.The court held that Doran should haveknown that reckless, conscious shockingconduct that alters the status quo andplaces a child at substantial risk of seriousimmediate and proximate harm wasunconstitutional.

As to Medina, the court found that shetoo created the danger faced by thechildren, and thus was exempt fromqualified immunity under Deshaney.However, the court held that theparticular theory of danger creation onwhich Plaintiffs stated their claim againstMedina is substantially less established inthe case law than the more straight-forward application of the doctrine toDoran.The court therefore held that areasonable official in Medina’s positionwould not have understood that herconduct created a claim under the dangercreation theory, and thus, she was entitledto qualified immunity.

The court found that Sentell was entitledto qualified immunity because she wasnot responsible for the creation of thedanger to the children.

Finally, the court found that Gonzalescould be liable under §1983 for failing


8 SUMMER 2001

to adequately train the social workers.The court held that the failure toadequately train the workers constituteda deliberate indifference to the rights ofthe children and deprived them of theirconstitutional rights and that this area oflaw was clearly established at the time ofthe events.

Therefore, the court affirmed the districtcourt’s denial of Doran’s and Gonzales’motions for summary judgment andreversed the district court’s denial ofMedina’s and Sentell’s motion forsummary judgment.

PRIVATE CUSTODY /APPOINTMENT OF GALMissouri Court Of Appeals Holds That TrialCourt Did Not Err By Failing To Appoint AGuardian Ad Litem In Private Custody Case.Cutting v. Cutting, 39 S.W.3d 540, 2001Mo.App. Lexis 452 (Mo.App. 2001). 5 Pages.

Mother and Father were married in 1991and subsequently had two children, D.T.C.born in February of 1994 and A.L.C. bornin November 1995.The parties separatedin April 1999 and divorced in early 2000.In their petitions for dissolution of marriage,both parties stated that the children werein the custody of the Division of FamilyServices (DFS), however, neither party setforth in their pleadings the reasons fortheir children’s residential placement. Inthe final judgment of dissolution, thejudge designated Mother and Father tobe joint legal custodians with Fatherhaving primary physical custody. Motherappealed contending, among other things,that the trial court erred by failing toappoint a guardian ad litem (GAL).

Mother argued on appeal that the trialcourt was mandated to appoint a GAL to represent the children’s interests in theproceedings.The relevant statute reads in part:

“In all proceedings for child custody or fordissolution of marriage or legal separationwhere custody, visitation, or support of achild is a contested issue, the court mayappoint a guardian ad litem.The courtshall appoint a guardian ad litem in anyproceeding in which child abuse orneglect is alleged.”

Mother claimed that although neither shenor Father requested the appointment of a GAL, and even though neither partyspecifically alleged abuse or neglect intheir pleadings, the judge should haveappointed, sua sponte, a GAL based onthe fact that the pleadings disclosed thatthe children were in the custody of DFS.

The court held that the mandatoryappointment of a GAL is triggered onlyby an allegation of child abuse expresslystated in a pleading and not by the mereintroduction of evidence at trial or in thepleadings.The court stated that abuse or neglect are not the only bases uponwhich a juvenile officer assumesjurisdiction over a child, and the fact thatthe children were under the jurisdictionof the juvenile court does not necessarily“raise a red flag” of abuse or neglect.Therefore, the court held that becausethere were no express allegations ofabuse or neglect by either party in theirpleadings, and the evidence at trial wasinsufficient to warrant sua sponteappointment of a GAL, the trial court did not err in not appointing a GAL.

EMOTIONAL ABUSEFlorida Fourth District Court Of AppealsHolds That The Lack Of Definition Of AVague Term In A Penal Statute Did NotRender The Statute Unconstitutionally VagueIf A Definition Of The Term Could Be FoundIn Other Statutes. Additionally,The CourtCertified The Question Of Whether TheStatute’s Term “Mental Injury”Was Unconsti-tutionally Vague. State v. DeFresne, 782So.2d 888, 2001 Fla. App. Lexis 479(2001). 6 Pages.

A public school teacher was charged withviolating a Florida child abuse statute bycausing “mental injury” to children byallegedly force-feeding children, slappingand screaming at children, telling a childshe was “bad”, and screaming at a child to go to the bathroom. Although therewas no evidence of physical injuries, thestate argued that the teacher could beconvicted of felony child abuse forhumiliating a child.

The Florida statute under which theteacher was charged makes it a felony to commit an intentional act which couldreasonably be expected to result in“mental injury” to a child. After she wascharged, the teacher moved to dismiss,arguing that the statute was unconstitu-tionally overbroad because it applied tospeech protected by the First Amend-ment and was unconstitutionally vaguebecause “mental injury” was not defined.

The trial court held the statuteunconstitutional as being both overbroadand vague based on the same reasoning.The State appealed.The Court of Appealsbegan by noting that the doctrines ofoverbreadth and vagueness are separateand distinct.The court first examined the claim that the statute is overbroad.

Citing the Florida Supreme Court, theappeals court stated that the overbreadthdoctrine applies only if the legislation is“susceptible of application to conductprotected by the First Amendment.”The court stated that in this case someof the counts were based solely on oralstatements which are protected by theFirst Amendment. However, the courtnoted that this does not automaticallymean that the statute is facially invalid.The court stated that a statute is faciallyinvalid as overbroad only if it “reaches asubstantial amount of constitutionallyprotected conduct.”Therefore, the courtreasoned that the state’s interest inprotecting children from physical abuse,which is the primary purpose behind thestatute involved in this case, is compelling.The court stated that any constitutionallyprotected conduct which could beprosecuted under the statute is insub-stantial, compared to the other types ofconduct to which the statute is directed.The court concluded, therefore, that thestatute is not substantially overbroad andcan be upheld against an overbreadthargument by narrowly construing it as not applicable to speech.

The court next examined whether thefact that the statute does not define theterm “mental injury” renders the statuteunconstitutionally vague.The court statedthat a statute is vague if it “fails to giveadequate notice of what conduct isprohibited.”The trial court found thestatute to be vague because it wouldleave an ordinary person unable todetermine whether their words or actionswould result in “mental injury” to a child.The appellate court agreed that the term“mental injury” was vague, however, thecourt cited a recent Florida SupremeCourt decision which stated that the lack of definition of a vague term doesnot make the statute unconstitutionallyvague if a definition of the term can befound in other statutes.The court foundthat “mental injury” is defined in othersections of the Florida code as being: “aninjury to the intellectual or psychologicalcapacity of a child as evidenced by adiscernible and substantial impairment in his ability to function within his normalrange of performance and behavior, withdue regard to his culture.”Therefore,the court reversed the decision of the trial court, and certified the questionof whether the term “mental injury” inthe child abuse statute is unconstitu-tionally vague.

On July 13, 2001 the Florida Supreme Courtaccepted jurisdiction to hear the case.


SUMMER 2001 9

ROLE OF CHILD’SATTORNEY / TRIALAND APPELLATECOUNSELCalifornia Court Of Appeals Discusses Role Of Children’s Counsel And How TheAppellate Court Should Respond If Minor’sTrial And Appellate Counsel Disagree. In reZeth S., 2001 Cal. App. LEXIS 492 (Cal.App. 2001). 12 Pages.

In May of 2000, a termination of parentalrights hearing was held involving 27-month-old Zeth. At the hearing, minor’strial counsel was adamantly in favor oftermination of parental rights.The trialcourt terminated Mother’s parental rights.Mother appealed.

On appeal, a different attorney representedZeth. On appeal Zeth’s independentappellate counsel supported Mother.In her letter brief, the minor’s appellatecounsel urged reversal of the orderterminating parental rights.

The appeals court held that in light of thenew information brought to the attentionof the court by the minor’s appellatecounsel, the court would reverse thelower court holding and send the caseback for an updated review hearing.Thecourt noted that the new informationcalled into question the position taken byminor’s counsel at the trial level, and raisedthe possibility of a miscarriage of justice.

The court stated that the case brought to light the unique role of minor’s counseland the difficulties which arise whenminor’s trial counsel and minor’s appellatecounsel disagree.The court’s opinionoutlined these issues.

Role of minor’s counsel:

The court stated that “the statute isremarkable in that it requires minor’scounsel to be proactive in investigatingthe minor’s best interest.The statutespecifically requires minor’s counsel toconduct an independent factualinvestigation into what position accordsbest with the minor’s welfare and thenreport the results of that factualinvestigation to the court.”The courtstated that these statutory duties toconduct a factual investigation and reportto the court necessarily confer on minor’scounsel in dependency cases “a specialrole in American jurisprudence.”Thecourt noted that “even more unusual is a statutory prohibition against a lawyerarguing a certain position. Under section317, the lawyer is forbidden to argue forthe return of a child to his or her parent

under certain circumstances.”The courtcontinued that “on top of those anomalies,there is the further requirement thatminor’s counsel must use his or herindependent judgment in arriving at theposition to ‘advocate,’ despite the statedpreferences of the ‘client.’ ”

The court stated that “minor’s counsel isspecial also because the minor’s counselnecessarily acts a ‘neutral’ litigant in thesense of being only concerned about thechild.”The court noted that the minor’scounsel’s role is reminiscent of the court’sown role in a so-called inquisitorial justicesystem, where judges rely on experts andinvestigators who are not chosen by theparties.

Additionally, the court stated that “givenhuman nature, the minor’s counsel’sspecial role tends to confer on minor’scounsel a special credibility with the courtqua trier of fact. A juvenile court judgecould reasonably assume that the minor’scounsel had performed his statutory dutyto investigate and would therefore enjoya certain confidence that any rulingconsistent with the position of the minor’scounsel would be one which, at least inminor’s counsel’s opinion, would notresult in physical harm to the minor.”

How the court should proceedwhen minor’s trial counsel andappellate counsel disagree:

The court noted that it had proceededon the assumption that minor’s appellatecounsel’s statement in her letter briefconcerning the caretaker’s real preferencewas accurate, even though it had notbeen made under oath.The court notedthat this raised the issue of how appellatecourts should treat information which “isnot going to be in the appellate ‘record,’given that it arrives without the usualsafeguards of the law of evidence.”

The court stated that although appellatecourts do not generally determine facts,there is an exception in the area ofjuvenile dependency appeals, where “atleast some courts will routinely acceptadditional evidence.” The court stated“…there can be no doubt about the need to take into account post-judgmentdevelopments in juvenile dependencycases, where the subject matter of thelitigation is, after all, a child’s life.The staticmodel of appellate evaluation of ajudgment based on settled and discretefacts that works well in almost all otherareas of law does not always work wellwhen the object of the litigation is theongoing well-being of a child.The

consequences to the child are too grave if an adoptive placement is not ‘workingout,’ yet a judgment affirming the termin-ation of the relationship between thechild and his or her natural parents isroutinely affirmed. If an adoptive place-ment doesn’t work out, the result can becatastrophic to the child. Legal orphanageis the worst of all possible outcomes:No parents and no adoptive home.”

Thus, the court held that in light of thedangers of erroneous termination orerroneous nontermination, somethingmore than just a letter brief is necessarybefore an appellate court should reversethe termination of parental rights in thewake of a change of position by theminor’s counsel which casts doubt on the result of the .26 hearing.Therefore,the court concluded that informationconcerning new developments submittedby appellate counsel on appeal in juveniledependency cases should be madepursuant traditional rules of evidence.The court held that “if the appellate courtconcludes that the new developments(which will usually concern some aspectof the minor’s placement in a prospectiveadoptive home), if found true on remandby a trial court, would otherwise warrant a reversal of the order terminatingparental rights, the case should beremanded to the trial court for anupdated review hearing in order to assess the child’s current status.”

The court stated that the updated reviewwould, in effect, be a retrial of the .26hearing, with updated information.Thecourt stated that by sending the matterback for an evidentiary hearing, theproblem of the minor’s appellate counsel“becoming, in effect, the star witness, isavoided as well. On remand, however,the attorney’s affidavit or declarationbecomes the functional equivalent of an offer of proof, and the real witnessesbecome the caretaker, social workers,and parents or other third parties.”

The court held that “in fairness to minor’scounsel who may have already submittedappellate briefs without the requisitedeclaration required by rules 23 and 41 of the California Rules of Court, thecourt’s opinion in regard to that require-ment should be taken as prospectiveonly.” The court therefore reversed thetermination of parental rights because ofthe doubts raised about the outcome ofthe .26 hearing by the minor’s appellatecounsel’s brief.The court remanded thecase to the juvenile court for an updated


10 SUMMER 2001

GUARDIAN CASES — NOTICE TO READERS

Decisions reported in The Guardian may not be final. Case history should always be checked before relying on a case. Cases and other material reported are intended for educational purposes and should not be considered legal advice.

Cases reported in The Guardian are identified by NACC staff and our members. We encourage all readers to submit cases.

If you are unable to obtain the full text of a case, please contact the NACC and we will be happy to furnish NACC members with a copy at no charge.


SUMMER 2001 11

review hearing in the form of a retrial of the .26 hearing.

The NACC thanks NACC Members Jan Sherwood and Christopher Wu forbringing this case to our attention.

DELINQUENCY /SCHOOL VIOLENCESupreme Court Of Wisconsin Holds ThatCreative Writing Piece Written By Juvenile,Which His Teacher Perceived As A DeathThreat, Could Not Form The Basis Of ADelinquency Petition Because The Piece DidNot Amount To A True-Threat And Thus WasProtected By The First Amendment. In theInterest of Douglas D., 626 N.W.2d 725,2001 Wisc. Lexis 380 (Wisc. 2001).26 Pages.

In October of 1998, Douglas D. was aneighth-grade student in Mrs. C’s Englishclass. Mrs. C gave Douglas a creativewriting assignment to complete duringclass. Mrs. C instructed Douglas to beginwriting a story, which later would bepassed on to a series of three otherstudents, each adding to Douglas’s work.Mrs. C entitled the assignment “TopSecret” but provided no limit regardingthe topic. Rather than beginning hisassignment, Douglas visited with somefriends and disrupted the class. Mrs. Csent Douglas into the hall to complete his assignment.

At the end of the period, Douglasreturned to class and handed his work to Mrs. C. Douglas had written:

“There one lived an old ugly woman hername was Mrs. C that stood for crab. Shewas a mean old woman that would beatchildren sencless. I guess that’s why shebecame a teacher.Well one day she kick a student out of her class & he didn’t likeit.That student was named Dick.The nextmorning Dick came to class & in his coathe conseled a machedy.When theteacher told him to shut up he whiped it out & cut her head off. When the sub came 2 days later she needed apaperclipp so she opened the droor.Ahh she screamed as she found Mrs. C’shead in the droor.”

Mrs. C believed this story to be a threatthat if she disciplined Douglas again,Douglas intended to harm her. Douglaswas sent to the assistant principal.Douglas apologized for the story and saidthat he did not intend the story to be athreat. Douglas received in-schoolsuspension.

In November, police filed a delinquencypetition against Douglas alleging that bysubmitting a “death threat” to Mrs. C,Douglas had engaged in “abusive conductunder circumstances in which the conducttends to cause a disturbance,” thusviolating the disorderly conduct statute.

The trial court found that Douglas hadcommunicated a “direct threat” to Mrs. Cand that this threat constituted abusiveconduct unprotected by the First Amend-ment. Additionally, the court found thatDouglas’s conduct provoked a disturbancein that it caused Mrs. C to become upset.

Douglas appealed arguing, among otherthings, that the delinquency adjudicationbased on the content of his student writingassignment violated his First Amendmentrights to free speech.The Court of Appealsrejected Douglas’s arguments and affirmedthe lower court’s ruling.

Douglas appealed to the WisconsinSupreme Court.The Supreme Courtbegan by examining the word threat.Thecourt stated that “threat” is a impreciseterm that can describe anything from “an expression of an intention to inflictpain, injury, evil, or punishment” to anygeneralized “menace.”The court statedthat under such a broad definition,“threats” include protected andunprotected speech.Thus states cannotenact general laws prohibiting all “threats”without infringing on some speechprotected by the First Amendment.The court contrasted this definition withthe definition of “true threat” which is a constitutional term of art used todescribe a specific category ofunprotected speech.The court defined“true threat” as a statement that, in lightof the surrounding circumstances “aspeaker would reasonably foresee that alistener would reasonably interpret as a

serious expression of a purpose to inflictharm, as distinguished from hyperbole,jest, innocuous talk, expressions of politicalviews, or other similarly protectedspeech.”The court noted that a “truethreat” may often include speech or actsthat fall within the broader definition of“threat” however, it does not includeprotected speech.Thus, the courtdetermined that it needed to findwhether Douglas’s creative writing piececonstituted a “true threat.”

The court stated that while it believedDouglas’s story was crude and repugnant,it did not rise to the level of a directthreat.The court reasoned that the storydid not contain any language directlyaddressed from Douglas to Mrs. C, ratherit was written in the third person, with nomention of Douglas. Second, the storycontained hyperbole and attempt at jest.It joked that the “c” in Mrs. C is short forcrab. In addition it suggested that Mrs. Cis so mean that she beats children andspeculates that for this reason shebecame a teacher.Third, Mrs. C explainedto Douglas that in this particularassignment, he merely was to beginwriting a story that other children wouldcomplete; thus Douglas could haveexpected another student to end hisgrisly tale as a dream or otherwiseimagined event.The court found thatunder these circumstances, Douglas’sstory is protected by the FirstAmendment.

The court concluded by emphasizing thatit shares the public’s concern regardingthreats of school violence, and thatsociety need not tolerate threats.Thecourt stated that such speech, even ifpurely written, can and should beprosecuted under the disorderly conductstatutes, however, under the facts of thiscase, the speech at issue failed to rise tothe level of a true threat.The courtnoted, however, that while some studentconduct may warrant punishment by bothlaw enforcement officials and schoolauthorities, school discipline generallyshould remain the prerogative of ourschools, not our juvenile justice system.The Wisconsin Supreme Court reversedthe decision of the lower courts.


12 SUMMER 2001

NACC – Federal Policy NetworkBecome a part of the NACC Federal Policy Network (FPN).You will receive periodic updates and information with which to contactyour representatives / senators when action is needed to protect children.

■■ YES, I would like to be part of the NACC Federal Policy Network.

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Return to: NACC, 1825 Marion Street, Suite 340, Denver, CO 80218 or Fax to: 303-864-5351

FY2002 APPROPRIATIONSThere has been no action, yet, in theHouse or Senate on the FY2002 Labor,HHS, Education appropriations bill (whichincludes child welfare and family supportprograms in Title IV of the Social SecurityAct, as well as the Child Abuse Preventionand Treatment Act programs).Thesemark-ups are expected to occur inSeptember, after Labor Day.

Juvenile Justice and Delinquency PreventionAct programs are included in the Commerce,Justice, State appropriations bill, differentversions of which have now passed theHouse (7/18/01) and been marked-up by the Appropriations Committee in theSenate (7/19/01 — that version is awaitingSenate floor action in September).TheHouse-passed version unfortunatelycontinues the current funding levels formost JJDPA programs, including currentfunding — at $95 million — for the Title VLocal Delinquency Prevention Grantprogram as recommended by PresidentBush in his budget. Unfortunately, theHouse-passed bill also increases theearmarks for other purposes within Title Vfunding to nearly $65 million, or over 2/3of the appropriated amount.The SenateCommittee-reported version — thanksto the persistent efforts of Sen. Kohl —includes a modest (but, for this program,significant) increase to a funding level of $130.8 million, with $52.5 million

earmarked for other purposes (still toohigh, but better than the House).Wehope that the House will agree to thehigher Senate numbers when the bill goes to House/Senate Conference (after Senate passage in September).

NOTE:All FY2002 appropriations bills aresupposed to be enacted by October 1,2001, but Congress may need to pass a “continuing resolution” to keep theprograms operating while final nego-tiations on funding are concluded.

JUVENILE JUSTICEAND DELINQUENCYPREVENTION

House

H.R. 1900, the bill to reauthorize andmodify the federal Juvenile Justice andDelinquency Prevention Act, was marked-up in the full House Education andWorkforce Committee on August 1,2001.The bill is an improved version ofthe JJDPA reauthorization legislation thatwas reported out of that committee twoyears ago.The only significant risk to thelegislation during mark-up was anamendment by Rep. Schaffer to “sunset”the bill when the reauthorization expires.

Many thought it did not make sense toprevent future juvenile justice anddelinquency prevention funding from

going to communities just becauseCongress hadn’t been able to completereauthorization on time — as they haven’tbeen able to do for this reauthorization.The sunset amendment was defeated ona bi-partisan vote.

As stated in the previous Guardian, H.R.863, to authorize (officially, for the firsttime) the Juvenile Accountability BlockGrant, with improvements, was reportedout of the House Judiciary Committee inApril.The bill is still awaiting floor action.

Both H.R. 863 and H.R. 1900 are considerednon-controversial bills, and are expectedto be brought to the House floor (togetheror separately)“under suspension of therules” in September — a “suspension”vote means there’s limited debate, andthe bill needs a 2/3 vote to pass, butMOST importantly, it means NO flooramendments (which is good, since mostof the floor amendments to previousjuvenile justice bills have not promotedthe most effective policy approaches).

Senate

A number of bills have been introducedrecently that relate to juvenile justice anddelinquency prevention.

Two of the bills would reauthorize theJJDPA, but are quite different in theirapproaches:

• S. 1174, which was introduced on

Federal PolicyUpdate by Miriam A. Rollin, JD

* Miriam Rollin serves as NACC PolicyRepresentative in Washington D.C.

CONFERENCES &TRAININGSeptember 29 — October 2, 2001NACC 24th National Children’s LawConference, Advocacy for Children andFamilies: Moving from Sympathy toEmpathy. Loews Coronado Bay Resort,San Diego, CA. NACC members receivea 25% registration discount. Send in the

registration form on page 5 of this issueor contact the NACC toll free 1-888-828-NACC.You can download thebrochure at www.naccchildlaw.org.

October 19 - 21, 2001American Academy of Adoption Attorneys,Special Needs Adoption AdvocacyTraining. Savannah Marriott RiverfrontHotel, Savannah, Georgia. For more infor-

mation, contact Marlecia Almond 608-259-2645, [email protected],www.adoptionattorneys.com.

December 5 – 7, 2001Judicial Counsel of California’s Centerfor Families, Children and the Courts,Beyond the Bench XIII. Monterey,California. Brochures will be mailed inAugust.To be added to the mailing list,

July 12 by Senators Leahy and Hatch,includes a simple extension of theJJDPA authorization years throughFY2004, along with a new competitivegrant program designed to improvethe conditions of confinement forjuveniles housed in adult prisons or jailswhen such juveniles are tried as adults;

• S. 1165, which was introduced on July11 by Senators Biden, Kohl and Reed,includes a combination of state formulagrant provisions similar to H.R. 1900,juvenile accountability block grantprovisions similar to H.R. 863, othergrant provisions similar to current law(Title V local prevention grants, gangand mentoring programs), and somegun-related provisions similar to thosein the Senate-passed JJDPA bill fromthe last Congress.

No action has occurred, yet, on anyjuvenile justice bills in the Senate.

Another relevant bill was introduced, aswell: the Senate version of the YoungerAmericans Act, S. 1005, a tri-partisan billintroduced on June 7 by Senators Jeffords,Kennedy, Stevens, and Dodd.The billauthorizes $5.75 billion in funding overfive years to support community levelprograms for youth development — suchas after-school programs, mentoring,recreation, community service, and otheractivities – that would engage youth inpositive efforts and reduce juvenile crime.(The bi-partisan House companion bill,H.R. 17, was introduced in January.)Hearings on this legislation are expectedin the fall.

CHILD WELFARELEGISLATIONAs indicated in the previous Guardian,while both the “Promoting Safe andStable Families” and “Child AbusePrevention and Treatment” programs aredue to be reauthorized this year, therehave been no bills introduced, yet, ormark-ups held; there have only been acouple of hearings on these programs.

Please see the previous Guardian forspecifics on legislation introduced to:(1) restore funding for the Title XX SocialServices Block Grant; (2) promote partner-ships between child welfare agencies anddrug and alcohol abuse prevention andtreatment agencies; and (3) to amend the Immigration and Nationality Act toprovide temporary protected status tocertain unaccompanied alien children.There has been no Committee mark-upor floor action on any of these bills, yet.

Other relevant legislation introduced sofar (but not moved further) includes:

• The Unaccompanied Alien ChildProtection Act of 2001, introduced byRepresentatives Lofgren and Cannon inthe House on May 17 as H.R. 1904,and by Senators Feinstein and Grahamin the Senate in January as S. 121 (thisbill would provide funding as well asrights and protections to unaccom-panied minors, including rights to anattorney and guardian ad litem).

• The Indian and Alaska Native FosterCare and Adoption ServicesAmendments of 2001, introduced

by Representatives Camp, Hayworth,Kildee and Bonior on June 27 as H.R. 2335, and by Senators Daschle,McCain, Inouye, Baucus, Cochran andFeinstein in March as S. 550 (this billwould promote equitable access tofoster care and adoption services for Indian children in tribal areas).

• The Indian Child Welfare ActAmendments of 2001, introduced on July 25, 2001 as H.R. 2644 (as was the case in previous sessions of Congress, this bill would modify avariety of provisions in ICWA, includingthose relating to jurisdiction,intervention, termination of parentalrights, withdrawal of consent totermination, notice, and visitation).

ADMINISTRATIONDEVELOPMENTSOn July 6, the federal Department ofHealth and Human Services issuedguidance to implement recent regulationsregarding patient privacy protections.The guidance, which includes furtherclarifications re: privacy in the case ofparents and minors, is available on thewebsite of the Administration on Childrenand Families.

Don’t Forget:You can access all bills(including the text of legislation andpublic laws), committee reports, andbudget/appropriations funding charts viathe Internet at thomas.loc.gov.


SUMMER 2001 13

Children’s LawNews


14 SUMMER 2001

send an email request to [email protected] send a fax to 415-865-7217.

PUBLICATIONSImproving the Professional Response toChildren in the Legal System, the 2000Edition of the NACC Children’s LawManual Series. The manual is 384 pagesand includes 27 articles covering a widerange of children’s legal issues includingthe NACC Policy Advocacy Guide,Examination of Child Witnesses,International Child Custody,TreatmentPrograms for Juvenile Sex Offenders,Adoption Subsidies for Children withSpecial Needs, Family Drug Courts,Mental Health Issues in Delinquency,Federal Regulations on ASFA and more.Copies may be ordered from the NACCby calling toll free 1-888-828-NACC orusing the Publications Order Form on theback cover of this issue.

The Children’s Legal Rights Journal Is Published In Association With The NACC And Available To NACC Members At A Discount.Children’s Legal Rights Journal (CLRJ) is aquarterly professional practice journal forchild welfare, juvenile justice, and familylaw professionals. Now in its 20th year,CLRJ is published by William S. Hein &Co., Inc., under the editorial direction ofthe ABA Center on Children and theLaw, the CIVITAS Child Law Center atLoyola University of Chicago School ofLaw and now, the National Association ofCounsel for Children. CLRJ is indexed inthe Current Law Index and Index to LegalPeriodicals and runs approximately 60pages per issue.The annual subscriptionrate is $62 but is available to NACCmembers at a 30% discount of $42 annu-ally.To subscribe, contact Hein toll free at800-828-7571, ISSN 0278-7210 or con-tact the NACC for more information.

NACC’s Better Public Policy for Children,Youth and Families – An Advocacy Guide,by NACC Policy Representative MiriamRollin. A comprehensive guide to policyadvocacy for children and families.Available on line at www.NACCchildlaw.org/policy/policy_advocacy_guide.htm, or callthe NACC at 1-888-828-NACC.

Breaking the Juvenile Drug-Crime Cycle,AGuide for Practitioners and Policymakers.U.S. Dept. of Justice Office of JusticePrograms, May 2001. 810 Seventh St. NW,Washington, DC 20531, www.ojp.usdoj.gov

Improving Court Performance for Abusedand Neglected Children. Produced by theABA Center for Children and the Law

with a Freddie Mac Foundation grant foruse by courts in public education andoutreach efforts. [email protected].

Unified Family Courts, Justice Delivered.ABA Office of Justice Initiatives, June2001, Box 10892, Chicago, IL 60610,1-800-285-2221, [email protected]. $5.

Child Victims Act Model Courts ProjectStatus Report. National Council of Juvenileand Family Court Judges, July 2001,775-327-5300, www.pppncjfcj.org.

America’s Children: Key National Indicatorsof Well-Being 2001. Federal InteragencyForum on Child and Family Statistics,Washington, DC. 888-434-4624, availableon line at childstats.gov.

NEWSRita Swan Selected as NACC 2001Outstanding Legal Advocate. Rita Swan,Founder and President Children’s HealthCare is a Legal Duty (CHILD) of SiouxCity, Iowa, has been named the recipientof the NACC 2001 Outstanding LegalAdvocacy Award for her policy advocacyand amicus curiae work to protect chil-dren from religious based medical neglect.The award will be presented at theNACC 24th National Children’s LawConference at the Loews Coronado BayResort on October 1, 2001.

NACC 2001 Law Student EssayCompetition Winners Announced. TheNACC is pleased to announce the win-ners of its 2001 Competition. Essays wereevaluated on the importance of the topicto advancing the legal interests of chil-dren, persuasiveness, and the quality ofresearch and writing.The winning essayswill be published in the NACC 2001Children’s Law Manual and the awardswill be presented at the NACC NationalChildren’s Law Conference at the LoewsCoronado Bay Resort, October 1, 2001.The student writing competition servesto enhance law student interest in thepractice of law for children and families as well as to reward students for theirscholarly accomplishments.The winners of the 2001 competition are:

• Toward Creating a Policy of Permanencefor America’s Disposable Children: ASurvey of the Evolution of FederalFunding Statutes for Foster Care from1961 to Present By Deborah Sandersof Rutger’s University School of Law

• The Plight of the Abused Delinquent:TheCrossover Child in the American Legal Sys-tem By Katherine Warwick Scrivner of theUniversity of Wisconsin School of Law

NACC On Line Directory. You can nowaccess the NACC Membership Directoryand Referral Network on line through the NACC web site: NACCchildlaw.org.Go to the NACC Members Only sectionand enter your NACC user name andpassword.

The NACC National Child AdvocacyResource Center is available for mem-ber use. The Resource Center providesreferrals, resource information, and consultation.You may access the resourcecenter by calling toll-free 1-888-828-NACC;Fax: 303/864-5351; E-mail:[email protected].

NACC Members Get MembersProgram. Earn “NACC Bucks” by nomi-nating your colleagues for membership.Participate in the NACC “Members GetMembers” program and earn valuableNACC Bucks redeemable on your NACCmember dues, publications, and confer-ences. For every prospect who becomesan NACC member, you will receive 20NACC Bucks. Save 100 NACC Bucks andreceive a complimentary registration tothe NACC Annual National Children’sLaw Conference (a $300 value).

New California Self-Help Web Site. TheJudicial Council of California Admini-strative Office of the Courts has launcheda new self-help web site at www.courtinfo.ca.gov.The site includes juvenile law anddomestic violence sections.

Tennessee Class Action SettlementApproved. A federal court released itsdecision on July 30, 2001 approving thesettlement reached in Brian A. v.Sundquist, the Tennessee child welfarereform class action lawsuit.The settlementsets in motion the reform of Tennessee’sDepartment of Children’s Services.

Chicago Jury Returns $3 Million VerdictAgainst Caseworker. On May 24, 2001,a federal court jury awarded 3 childrenwho were abused in their state place-ment over $3 million dollars.The case,Alexander v.Woodward, was brought by Patrick Murphy, Cook County PublicGuardian against Clifton Woodward, aDCFS worker.The state defended Mr.Woodward and may be liable to pay theverdict under an indemnification theory.

AMICUS CURIAEACTIVITYManduley v. Superior Court, CaliforniaSupreme Court (S095992).The issue is California’s Proposition 21, a ballot

Parties interested in NACC Amicus Curiaeparticipation in a case should contact the NACC Executive Director.

If you have “Children’s Law News,” please send it to: The Guardian, 1825 Marion Street, Suite 340, Denver, CO 80218You can e-mail information to [email protected] or fax to 303-864-5351.


SUMMER 2001 15

initiative passed by voters in March of 2000,which amici believe is unconstitutional.Proposition 21 achieves the followinggoals: places more youth in the adultcourt system rather than in juvenile court;limits pre-trial release of youth pendingadjudication; houses more youth in theadult correctional facilities; narrows proba-tion eligibility and makes it easier torevoke a minor’s probation; removesmany confidentiality provisions regardingminors’ names, proceedings, and courtrecords; imposes a vast set of new andlonger penalties and police registrationrequirements on minors and adults forso-called gang-related conduct; expandsthe “three strikes” laws to increase sen-tences for adults; expands the deathpenalty for adults; makes petty vandalisma felony; and facilitates wiretapping ofhomes by the government. Amici arguethat Proposition 21 is unconstitutional inthat it violates the single subject rule ofthe California Constitution by includingtoo many subjects within a single mea-sure. Amici also argue that Section 26 ofProposition 21 violates separation ofpowers and other constitutional principlesby removing judicial discretion over whichcases go to adult court and giving solediscretion to prosecutors.

JOBSZubrow Fellowship in Children’s Law.Juvenile Law Center announces the Sol

and Helen Zubrow Fellowship, open tonew law school graduates and lawyerscompleting their judicial clerkships. Fellowswill work at the Juvenile Law Center inPhiladelphia for up to two years. Appli-cations for the first year must be receivedby October 1, 2001. Contact the JLC at215-625-0551 or www.jlc.org.

Executive Director, National Council of Juvenile and Family Court Judges.NCJFCJ in Reno, Nevada is seeking anExecutive Director. A full job description is available at ncjfcj.unr.edu. Contact EllenBodow, Senior Consultant, DRG,212-983-1600, [email protected].

Associate Director,The Support Centerfor Child Advocates. Child Advocates isseeking a full-time Associate Director tobegin work in Fall 2001. Compensation:Salary: $45,000 plus benefits. Apply to:Support Center for Child Advocates,112 North Broad Street, 12th floor,Philadelphia, PA 19102.

Program Manager, Santa Clara CountyCalifornia Dependency Court. Grantfunded position to assist the court todevelop the evaluative tools and strategicplan necessary for a streamlining of thecourt process for permanent placement.Contact Human Resources, 408-299-3232 x223.

Staff Attorney, Center for Children’sAdvocacy. University of ConnecticutSchool of Law program in Hartford, CTseeks a staff attorney. Send cover letterand resume to Martha Stone, Center for

Children’s Advocacy, Inc., University ofConnecticut School of Law, 65 ElizabethSt., Hartford, CT 06105. For more infor-mation, visit www.kidscounsel.org.

Staff Attorney, Children’s Law ProjectLegal Assistance Foundation of Chicago.Send resume, two references and legalwriting sample to Richard Cozzola,Supervisory Attorney, Legal AssistanceFoundation of Metropolitan Chicago,111 West Jackson Suite 300, Chicago,Illinois 60604, 312-341-1070.

Legal Director, Legal Aid For Children,Pittsburgh. Coordinate litigation, training,supervision and activities of the legal staff.Send letter of interest with resume andsalary requirements to Scott Hollander,Executive Director, Legal Aid For Children,900 Sarah Street, Suite 205, Pittsburgh, PA15203, fax (412) 431-5037.

Visit the University of Michigan / NACCChild Law and Advocacy National JobWeb Site. You can access the informationat 141.211.44.51/centersandprograms/childlaw/index.html or through the NACCwebsite at NACCchildlaw.org. Along withthe listing of specific job openings, a general directory of child welfare laworganizations will be posted in the data-base. If you wish to post a job on theweb site or have your office listed in thegeneral directory, fax the information to734-998-9190 or call 734-998-9190.

Please Send (mail/email/fax) Children’sLaw and Advocacy Job Openings to the NACC.

AffiliateNews

NACC affiliates help fulfill the mission of the national association while providing members the opportunity to be more directly andeffectively involved on the local level. If you are interested in participating in NACC activities on the local level, or simply want contactwith other child advocates, please contact the organization in your area. If there is no affiliate in your area and you would be interestedin forming one, please let us know.The formation of an NACC affiliate is simple, and we can provide you with an affiliate developmentpacket to get you started. Affiliate development materials are available on our website at www.NACCchildlaw.org.


16 SUMMER 2001

NACC Affiliates are encouraged to send announcements and news of their activities and meetings to The Guardian.Deadlines for submission are February1, May 1, August 1, and November 1.

CALIFORNIA

Los Angeles Affiliate of the National Association LA CASA Programof Counsel for Children (LA-NACC) 201 Centre Plaza Dr.Shahrzad Talieh, President Monterey Park, CA 91754

Phone: 323-526-6666 FAX: 323-264-5020E-mail: [email protected]

Founded in 1998, LA-NACC has become one of the NACC’s most active and effective affiliates. LA-NACC programs reflect theNACC’s belief that the most effective advocacy involves both case and policy work. In addition to the affiliate members’ active representation of children in the LA juvenile court system, LA-NACC proposed two children’s court bills, created a pamphlet series to educate older child clients on their rights in the system, conducted several attorney trainings, submitted an amicus brief in a grandparent visitation case, and participated in a task force to end youth homophobia.

Northern California Association of Counsel Center for Children, Families and the Courtsfor Children (NCACC) 455 Golden Gate AvenueChristopher Wu, President San Francisco, CA 94102

Phone: 415/865-7721 FAX 415/865-7217E-mail: [email protected]

NCACC has been the NACC’s flagship affiliate since its founding in 1993 and is currently the NACC’s largest affiliate with over 60 Bay Area participants. Like the NACC, the Northern California affiliate is active in both case and policy advocacy. NCACC’s historicalinfluence in California is significant, including the drafting of a model court rule on appointment of counsel which was adopted by over30 California jurisdictions.The affiliate is now working on amendments to the rule in light of new legislation.This year alone, NCACCsupported seven bills and vigorously opposed one. NCACC publishes the NACC’s only affiliate newsletter, Dependency Court News,providing members with case and policy updates as well as technical assistance and news. NCACC conducts quarterly attorney trainingand has filed eight amicus curiae briefs. NCACC has been guided since its first years by a statewide survey of California advocates whichindicated an NACC affiliate could be useful in three areas: information, legislation, and networking. More recently, NCACC held a daylong retreat to think strategically about the continuing focus of the affiliate.

NACC – Application for Membership

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■■ INDIVIDUAL MEMBERSHIPS:Regular $75 Supporting $100* Patron $250*Student $35 Sustaining $150* *Includes special thank you listing in The Guardian

■■ I would like $10 of my membership dues to support my local NACC affiliate.

■■ GROUP MEMBERSHIPS:Agency 1 $375 = 10 individual memberships (50% savings)Agency 2 $750 = 20 individual memberships (50% savings)

■■ Please send additional information on the NACC.

■■ Please send information on establishing an affiliate.

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California Affiliates to Share Inaugural NACC Outstanding Affiliate Award

The NACC is pleased to present its inaugural Outstanding Affiliate Award to the Los Angeles Affiliate of the NACC and the NorthernCalifornia Association of Counsel for Children.The awards will be presented at the NACC 24th National Conference in San Diego,October 1, 2001.The award will be presented annually to the affiliate that best fulfills the mission of the NACC on the local level.The winners achievements are given below. Because of these two affiliates, not only are children better represented, but also the court system is more responsive to children’s needs.


SUMMER 2001 17

The National Association of Counsel for ChildrenThanks the Following Donors and Members for Their Generosity

$5,000 and Up

$250 – $999

Sustaining Members

Patron Members

AnonymousCandace J. BarrDonald C. Bross

Children’s Hospital SanDiego, Center for ChildProtection

Robert C. FellmethFoley & Lardner

David HechlerJack Hogan In-N-Out Burger Foundation David Katner

Kempe Children’sFoundation

Oklahoma Children’s HealthFoundation

Henry J. Plum

State Bar of California,Family Law Section

John Stuemky The Zoellner Foundation

Michael E. AxelrodWilliam Brooks John Ciccolella Vincent Fontana

Donna Wickham Furth Samuel & Nancy Gary Ellen JonesMichael Koskoff

Harold LaFlammeJacqueline ParkerMiriam RollinChristopher Wu

AnonymousAnonymousAnschutz Foundation

David and Lucile PackardFoundation, Children,Families and CommunitiesProgram

David and Lucile PackardFoundation, OrganizationalEffectiveness Program

Freddie Mac FoundationIn-N-Out Burger FoundationIOF ForestersLexis • Nexis

Michael B. ArkinMichael E. AxelrodCandace J. BarrRebecca S. BreedWilliam G. Brooks, Jr.Donald C. BrossMarjorie E. CahnStephen M. Cahn

John B. CiccolellaClaudia K. DickmanDonald N. DuquetteRichard J. FitzGeraldDonna Wickham FurthWendy L. Gahn-AckleyDamon L. GannettDavid Hechler

Jack HoganKatherine S. HollidayJohn JerabekEllen JonesDavid R. KatnerHarold LaFlammeAndrew Manns, Jr.Philip (Jay) McCarthy, Jr.

Andrea NiemiJacqueline Y. ParkerHenry J. PlumDeborah A. RandolphMiriam A. RollinPaul D. SchneiderRichard SchusterJanet G. Sherwood

Margaret H. SmithKendall SprottJohn H. StuemkyArthur E.WebsterChristopher N.Wu

Melvin F. AlbertWilliam E. AndersonPeter L. BargmannMartin D. BrownAlice BussiereHoward A. DavidsonJanet F. DeVito

Leonard EdwardsJohn D ElliottLorraine Ely-MorrisonRobert C. FellmethCarla A. GoodwinScott K. HansonAnn M. Haralambie

Joan Heifetz HollingerGeorgia & Walt ImhoffDavid M. JohnsonLaura M. Urbik KernAmy L. KremerGwen M. LernerJames A. Louis

Rebecca L. McNeeseGloria MitchellDavid A. PriceLucy W. RankinSherrill L. RosenMary RothTheoharis K. Seghorn

Mary Ann ShaeningRobert E. Shepherd, Jr.Shari ShinkRalphine R. StaringJon E.ViceJames A.WidirstkyCecilia Zalkind

Thank You

Robert AckleyKathryn F. AshworthDakota County AttorneyChristine L. BaileyBillie BellLinda Mallory BerryIda Escobedo BetsonDebora A. BlakeDaniel E. Brennan, Jr.Frederica S. BrennemanRobert D. BriggleNancy S. BrodyMargaret M. BurtchaellErlinda G. CastroMary S. ChromikDon CondieSuzanne X. CongerHarry E. ConklinTimothy J. Conlon

Sharron W. CooperRichard CozzolaEdith A. CroxenTimothy CunninghamFrancine C. DavisTony DeMarcoJanis M. DeRemerJ.E. DoekBrian J. DunnSharon S. EnglandBrian D. EscobedoElla J. FenoglioTara FordDavid O. FragaDavid FurmanMarlene FurthDonna DiStefano GardnerCharles D. GillHugh S. GlicksteinKathi Grasso

W.Troy HauseJay C. HowellGilda Hudson-WinfieldSteven HurwitzChristopher C. JeffersHarold Paul KatnerJeffrey KauffmanDarren J. KesslerAmy L.A. KleinGilbert KlimanCeleste Holder KlingLisa B. KouzoujianDonald J. KramerRichard D. KrugmanSherelyn LabowskiCora J. LancelleLisa B. LandsmanDavid LittmanRandall C. Lococo

Barbara MalchickJames R. MarshJay W. McEwenMary Jo MeenenAnn Gail MeinsterOctavia MelendezAndrea L. MooreMichael S. MoreyCindy MorrisJohn E.B. MyersBarry NewmanDianne H. PetersonKathryn A. PidgeonKaren PillarVincent RahamanCraig D. RobinDavid N. SandbergLisa Kirsch SatawaAnne E. SchneidersRandy Schwickert

Roger ShirleySara L. SilvermanAndrew SirotnakJ. Eric SmithburnNeal SnyderStephanie St. JohnKathleen A. SternenbergJanet StoryLeslie J. SusskindJustin TeitleGeorge S.TheiosRuth Nash ThompsonD. Richard TothGretchen VineyPatricia A.K.WatrasLeecia J.WelchAnn WhyteGrace YooHoward B. Zucker

Supporting Members

$1,000 – $4,999

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Children’s Law Manuals: Member Non-Member■■ Improving the Professional Response

to Children (2000) $29 $35■■ Kids, Courts and Community (1999) $25 $30■■ Serving the Needs of the Child Client (1998) $20 $25■■ Advocating for Children in Crisis (1997) $20 $25■■ Child Advocacy at a Crossroads (1996) $20 $25■■ Children’s Law, Policy & Practice (1995) $20 $25■■ Current Issues in Pediatric Law (1993) $20 $25

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Mail to: National Association of Counsel for Children1825 Marion Street, Suite 340Denver, CO 80218Office: 303-864-5320 • Fax: 303-864-5351Federal Tax ID#84-0743810

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NACC – Referral Network

NAME

ADDRESS

CITY / STATE / ZIP


AREA CODE / FAX NUMBER

E-MAIL

OCCUPATION

The NACC office receives many requests for legal services.Because the NACC does not provide direct legal services,we need to refer these people to counsel. Please fill out the following form and return it to the NACC so that we can include you in our referral network. Non-attorneys are also asked to participate.

AREAS OF PRACTICE:

■■ abuse, neglect, dependency ■■ guardianship, conservatorship■■ delinquency, status offenses ■■ civil litigation■■ custody, visitation ■■ mental health■■ child support ■■ health care■■ adoption ■■ jurisdiction■■ Other:

___________________________________________________

■■ I will consider pro bono referrals.

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