May-June 2013

Being the new kid in the child welfare unit

Michael Kotwal

Assistant Criminal ­District Attorney in ­Dallas County

A few reflections and an overview for prosecutors handling Child Protective Services (CPS) cases

“Is this a typical day?” I asked with more than a little surprise while glancing around the almost-packed courtroom. A fellow ADA smiled without looking up from a rather impressive-looking stack of red case files and responded quite casually, “Not really. This is one of our lighter dockets.” Not knowing what exactly was going on, I settled in at counsel table with a pen and a legal pad attempting to look very DA-like while feeling more like a new student on the first day of school.
    I was very excited about my new assignment in the child welfare unit. Having been a trial prosecutor for over three years, I was very comfortable in courtrooms; however, with the exception of voir dire, I couldn’t honestly recall ever seeing so many people packed in the gallery. I was also fairly sure the last time I remember seeing so many attorneys gathered in one place was at the last conference I attended.
    It wasn’t long before a defense attorney sidled up to me and made a comment along the lines of, “You must be the new kid around here.” I wryly confirmed his observation, which failed to keep him from asking me several questions about a case that I knew nothing about. I politely redirected him to one of the other ADAs.
    I watched with fascination the seemingly endless procession of juvenile delinquency cases involving serious offenses by youthful offenders rotating in and out from the holding area, some with families present, some without. These hearings were mixed in with the child welfare cases where sometimes large groups of people, including parents, attorneys, and various other interested parties assembled before the judge to address various issues concerning children who had been victims of abuse and neglect requiring State intervention. I saw an endless variety that morning—kids without parents, kids with both parents, large families, no families, children who had suffered multiple levels of abuse, and others that were more fortunate.
    Almost nine years later, I have handled countless cases as a child welfare ADA and am no longer the new kid on the block, but I still truly enjoy getting to handle my own set of red files in cases that make a difference.

A walk through the system
As prosecutors, our responsibilities generally intersect the world of child abuse in terms of criminal prosecution: holding an individual or individuals criminally accountable for actions against children. While this focus remains critical to justice for the victims and community, child welfare cases incorporate these aspects and many others that impact children long after criminal cases are completed. One of the first lessons I learned in this unit was that there was not always a one-to-one correlation between a child welfare case and a companion criminal one. While this overlap certainly occurs in many cases involving physical or sexual abuse, there are just as many I have handled where, for a variety of reasons, criminal charges are not filed. Child welfare cases at their core involve answering the question: What is now in the best interest of the child?
    In Dallas and many other jurisdictions, the District Attorney’s Office represents Child Protective Services (CPS) in child welfare cases. Unlike criminal prosecution in which the DA’s office represents “the State,” the relationship with CPS is “attorney-client” in nature (minus billing of course). Housed within the Texas Department of Family and Protective Services, CPS is a division with responsibilities including investigation of abuse and neglect, working with families, and managing the thousands of children in foster care. To give some perspective of the volume of cases in this area, Dallas County has two juvenile district courts that hear only delinquency and child welfare cases, and 13 prosecutors in our office are assigned exclusively to these cases, collectively disposing of cases involving thousands of children in a given year.
    Our cases generally begin when CPS removes children from their parents or guardians and places them into either foster homes or safe relative placements. Once this action occurs, the clock begins ticking on the case. As a criminal prosecutor, I was accustomed to dealing with the Texas Penal Code and the Code of Criminal Procedure for most of my legal needs. Child welfare cases, however, are strictly governed by the Texas Family Code, which makes two things very clear: 1) cases are to be handled on a rigid timetable, and 2) the best interest of the child is of paramount concern. The Family Code mandates that cases be finalized within a year (or up to 18 months maximum providing that “extraordinary circumstances” are found by the court). Such time-frames were established by the Texas Legislature to ensure children were not lost in the system for years without any progress on their cases. The code outlines various hearings and when they should occur during the pendency of all cases. In criminal court, I was used to docket call often involving meeting with defense attorneys and agreeing on when and what to set next for the case—not so in child welfare. All of our case settings go before the judge, who makes detailed docket entries and checks on the State’s compliance with code provisions.
    Throughout the process, multiple parties are frequently involved. In addition to the State representing CPS and defense attorneys for the parents, the court appoints an attorney known as a guardian ad litem to represent the children in all proceedings. Additionally, many of our cases involve CASA (Court Appointed Special Advocates). CASA is a nonprofit organization charged with providing the court and parties additional information on the welfare of children currently in the system. (Although not routinely done in Dallas during our legal cases, it is my understanding that some counties use CASA as guardian ad litems as well.) Throughout these various hearings, the courts are interested in the parents’ compliance with rehabilitative services facilitated by CPS. They range from individual counseling to intensive drug treatment, and their goal is to afford parents an opportunity to reunify with their children if possible. During the course of a case, it is not uncommon for the State to be involved in a multitude of hearings involving such issues as modifying access, child support, or placement of the child. At some point prior to the year deadline, final decisions regarding the children must be made.

Resolving cases
Outcomes of child welfare cases vary depending on a host of factors. Using a mixture of litigation as well as formal mediations, final outcomes may include the following:
•     return to the parents,
•    permanent custody to relatives, or
•    termination of parental rights with custody to the State.
    Under Texas law, there is a legal presumption favoring parents and family for placement of children if at all possible. The myriad services offered by the State play a key role in shaping whether reunification with the parents is in the child’s best interest. The court-ordered services are tailored to the individual case facts and frequently involve major commitments by the parents, especially those involving drug treatment or intensive domestic violence counseling. Statistically in Dallas County, the majority of our cases resolve with either permanent custody to relatives or termination of parental rights. When custody is given to relatives, special attention is given to outlining the rules that both the relatives and parents must abide by, especially regarding visitation and access. Additionally, because many of the relatives are grandparents or great-grandparents, these households are taking on a considerable amount of responsibility in raising usually young children. In such scenarios, CPS will often assist in providing financial and other support measures.
    Obviously in many of our cases, neither the parents nor family members are deemed appropriate caregivers for children so the State must explore non-familial options. When the State proceeds to trial in these types of cases, we are generally seeking termination of parental rights with permanent custody awarded to the State so the child can be freed for adoption by foster parents. Termination trials parallel criminal ones in that they are divided into two phases. However, rather than guilt/innocence and then punishment, our trials involve a first phase of whether grounds for termination exist and a second phase of whether termination of parental rights serves the best interest of the child. Termination grounds are outlined in §161.001 of the Texas Family Code and provide a spectrum of conduct that justifies termination of parental rights, including such scenarios as abandonment, endangerment, direct abuse of the child, or prolonged incarceration by the parents. In the majority of our termination trials, the State relies upon grounds specified in §161.001(1)(D) and (E), which constitute endangerment. During jury selection, we focus a tremendous amount of time educating the jury panel on the different types of abuse and endangering conduct that may occur as not all forms of child abuse will leave physical marks. Many of the witnesses called by the State at this phase mirror criminal trials and include police officers, medical professionals detailing the abuse, and CPS personnel.
    The second phase of our trials involves the question of best interest of the child. Along with proving the requisite grounds by clear and convincing evidence, the State has the burden of also demonstrating that termination of parental rights is in the best interest of the child, as outlined in Family Code §263.307 and established in caselaw. Factors include:
•    the magnitude and frequency of the abuse to the child;
•    the child’s age and specific vulnerabilities;
•    willingness and ability of the home environment to provide for the child’s needs; and
•    the ability of the placement to be able to meet the needs of the child whether they are medical, behavioral, or a combination in nature. Much like the punishment phase of a criminal trial, this phase is sometimes the longest and most difficult question for a jury to answer. Often jurors have quickly agreed on the grounds but had much difficulty deciding on the “best interest” part of the termination question. Many of the witnesses at this phase include therapists, educational professionals working with the children, and the adoptive foster family members, especially if they are interested in providing the child with permanence.
    My trial experience definitely helped prepare me for child welfare cases, especially in light of how often we are in court over contested issues. From the time I am assigned a new case, I have to start preparing the case and witnesses because under the Family Code, cases involving children removed into foster care require a hearing within 14 days of removal. Because these may be contested by the parents, the State must be prepared for what can amount to a mini-trial even at this early stage. If the State fails to makes its burden, the child may be returned home.
    Preparing a child welfare case is similar to a criminal one; however, the State must always be mindful that proving grounds alone is insufficient. Much of my pre-trial preparation involves assessing evidence and witness testimony for proving best interest, as we are essentially asking the jury to agree that our long-term plan for the child is the best solution. Because we are often dealing with a large mix of witnesses, it is critical to have a firm understanding of what the witnesses can and, equally important, cannot testify to in court. Child welfare cases are a unique challenge in trial because not only is the State trying to prove certain conditions occurred but also that these conditions warrant the termination of parental rights to the child. This decision is understandably challenging to many jurors so it is incumbent upon the prosecutor to effectively educate the jurors in voir dire, then logically present the different pieces of evidence without drowning them in paper or terminology.

After the verdict
One of the most common questions I have been asked during my time in child welfare is, “What happens to all those children in the system?” The answer I generally give is an honest, “It depends.” Many of our cases resolve without the need for a full jury trial. Mediation in Dallas County has become extremely popular for resolving cases as it saves both time and expense while allowing parties to craft solutions (as opposed to having one imposed by a court or jury). One of the most common resolutions is for children to be placed with relatives while allowing structured access by the parents, whose parental rights remain intact.
    Alternatively, in termination scenarios, the State becomes permanent custodians of the children. At this point, children in the State’s custody become part of the “263 docket” as we call it in Dallas—so named for Chapter 263 of the Texas Family Code covering children under the care of CPS. Children falling into this category are subject to periodic hearings during the year for the court’s review of their cases. The first time I was assigned to the 263 docket, I remember being amazed at the sheer number of case files—and then the thickness of the court files on many of the children. Sometimes, the hearings are relatively simple as the child is in the final stages of the adoption cycle. For other children, the result is not as clear. Many of the children have substantial issues that significantly undermine their chances of adoption.
    A recurring theme, especially for older foster children, is a history of changing foster homes and rotating in and out of treatment facilities. Another aspect I noticed from covering 263 cases was the large number of children with multiple psychiatric diagnoses, coupled with long lists of psychotropic medicine orders. A lot of the larger files were packed with reports documenting problems in school, running away, and delinquent conduct. Sometimes at these hearings, the Juvenile Probation Department would detail the child’s progress (or lack thereof) with probation requirements stemming from delinquency cases.
    Even today when I cover 263 cases, I am struck by the contrast of children’s cases: In one case there will be a smiling family physically and emotionally surrounding a child as they prepare for the next chapter in their lives as their involvement in child welfare court comes to an end, while the next will be a somber recitation about the mountain of problems a child is having as the State desperately seeks solutions. Eventually, all of these cases come to an end, if for no other reason than the child has reached adulthood. For all of the positive endings we see, some of the children’s transition into adulthood will be marked by criminal cases, as well as being part of their own child welfare cases.
    As is true for all prosecutors, some cases end better than others, but I can honestly say that the work we do in this unit makes a real difference to one of the most vulnerable segment of our society. Child welfare law has greatly evolved from the days of largely being ignored by the State or treated as another type of delinquency case. This area continues to develop at an extraordinary rate with many states now recognizing it as a legal specialization and an increasing body of case decisions that define this area.