Court Improvement Program Summary of Recommendations:
Assessment of Probate Courts'
Handling of Child Abuse and Neglect Cases
These 57 recommendations, edited by Kathi L. Grasso, Esq., were submitted
to the Michigan Supreme Court State Court Administrative Office by the
American Bar Association's Center on Children and the Law and the National
Center for State Courts.
Recommendation 1: The Michigan
Supreme Court and SCAO should ensure that a direct calendaring system
of case assignment in child abuse and neglect cases be established and
maintained in all counties.
Recommendation 2: The Michigan
Judicial Institute and SCAO should develop and implement training for
judges and referees at the time they are elected, appointed, or assigned
to the bench, and periodically thereafter. This training should be mandatory
for all judges and referees, as well as court administrators and other
court personnel and should focus on permanency planning issues.
Recommendation 3: To ensure the
timely and expeditious implementation of permanency plans, all courts
handling abuse and neglect cases should have written policy and procedures
governing timely hearings and decision making that mirrors Michigan's
statutory mandates.
Recommendation 4: Tracking systems
should be implemented in all courts in which appropriate court personnel
are designated to track the amount of time it takes a case to proceed
through various stages of child neglect and abuse proceedings, identify
the reasons for delay, and move court personnel and parties to a more
expeditious handling of a case.
Recommendation 5: The recommendations
of the Michigan Probate Judges Association are incorporated herein and
should be adopted. "The Michigan Probate Judges Association believes
that reforms should be put in place which would result in closer monitoring
of compliance with time limits and that steps can be taken to expedite
termination cases that are appealed..." The Association "support[s]
the following actions being taken to reduce delays in receiving appeal
opinions in termination of parental rights cases:
1. Restructure Court of Appeals reporting system
to assure that:
a. The Probate Court is notified when time limits on appeals of
termination of parental rights cases are not met.
b. The Supreme Court receives necessary reports to assure adherence
to time limits by all courts.
2. Revise the Court Rules to require that the local Probate
Court and interested parties receive:
a. Affidavits of service by court reporters for filing transcripts.
b. Correspondence between attorneys and the Court of Appeals of
delays in time limits and filing of briefs.
3. The Supreme Court review how expeditiously termination
cases should be
heard and review
all time limits in the Court Rules on appeals as to their
reasonableness
as well as the strength of the existing sanctions and, if
appropriate,
make necessary revisions of the Court Rules.
4. Michigan Probate Courts should develop methods to:
a. Place a higher priority on the completion of transcripts and
expeditiously send the lower court record
to the Court of Appeals.
b. Improve the appointment of counsel process to assure that attorneys
comply with the time limits in the appeals
process."
Recommendation 6: The SCAO should
ensure that as statewide court reorganization is implemented, court
procedures and practices that are instrumental in diminishing delays
in child abuse and neglect cases are maintained.
Recommendation 7: The SCAO should
work with those minority of probate courts that are not scheduling individual
cases for a date and time certain. The SCAO should issue a reminder
to all probate courts of the applicability of MCR 8.116 "Sessions
of the Court" to the handling of child abuse and neglect cases.
Recommendation 8: Pretrial conferences
should occur in cases in which the parties anticipate a contest so that
issues for litigation can be clarified and appropriate time set aside
for the trial of the case.
Recommendation 9: The SCAO should
ensure that the judiciary and the bar are aware that case adjournments
should be granted in child abuse and neglect cases in only the most
exceptional of circumstances.
Recommendation 10: In order to
diminish adjournments, county practices addressing the identification
of and service of process on fathers, especially FIA practices, need
to be more closely examined to determine how fathers can be better identified
and served early in the court process.
Recommendation 11: Policies and
practices should be implemented that guarantee that attorneys for the
parties (FIA, child, and parent) are appointed before the initial removal
and non-removal preliminary hearings.
Recommendation 12: The SCAO should
develop a consistent method of file management, including an automated
record system, for use by county courts.
Recommendation 13: The SCAO should
work closely with each county court to evaluate whether each court is
utilizing its existing computer technology as effectively as possible
for the tracking of cases.
Recommendation 14: SCAO policy
should be implemented to require that each county court produce a uniform
quarterly report for submission to the SCAO, the bar and public detailing
case tracking information.
Recommendation 15: Sufficient funding
should be appropriated for the purchase and installment of computer
software and equipment necessary to upgrade or make uniform existing
county case tracking systems.
Recommendation 16: The SCAO should
train judges, local administrators, and other appropriate court personnel
on the implementation of an automated tracking system to ensure that
a high level of expertise in data management is maintained. Tracking
systems should be utilized so that appropriate court personnel or a
permanency planning committee are designated to monitor caseflow.
Recommendation 17: All courts presiding
over child abuse and neglect cases should implement procedures that
guarantee that each child and parent are appointed trained and skilled
attorneys in advance of initial preliminary hearings and who will continue
representation to each child and parent until a plan of permanency is
implemented (e.g., adoption, reunification, permanent custodial placement).
Attorneys for children and parents should be recruited and selected
in part for their skill and knowledge in law and fields relevant to
child welfare.
Recommendation 18: The Michigan
Bar and the SCAO should work with courts to develop models for use when
courts contract with attorneys to provide legal services to parents
and children in abuse and neglect cases. The contracts should incorporate
provisions addressing the attorney's obligations to the client and standards
for reasonable attorney caseloads taking into consideration the need
for out-of-court case preparation time.
Recommendation 19: Recommendation
47 of the Binsfeld's Children's Commission should be implemented. This
recommendation provides: "Juvenile Courts in each county shall
be assigned specialized, highly trained, permanent prosecutors/attorneys
general to represent FIA at all stages of abuse and neglect cases, beginning
with the filing of the petition to remove the children from the home.
The Family Independence Agency will expand the pilot project that is
providing funds to prosecutors to increase their ability to represent
the FIA except where a conflict of interest arises."
Recommendation 20: The FIA or its
agent should be represented by reliable civil counsel at all stages
of child abuse and neglect proceedings. Michigan's statute and court
rule addressing attorney services for the FIA or its agent refers to
a prosecuting attorney serving as a "legal consultant" to
the FIA. MCL 712A.17(5), MCR 5.914(B)(1). In order to ensure that the
FIA is assured of adequate representation in child abuse and neglect
proceedings, the above-cited statute and court rule should be modified
to clarify that the prosecuting attorney or assistant attorney general
is to act as the FIA or its agent's "attorney" in child abuse
and neglect proceedings.
Recommendation 21: The practice
in some counties in which FIA workers are responsible for drafting the
initial abuse and neglect petition should be modified to delegate this
responsibility to the FIA attorney.
Recommendation 22: The recommendation
by the Michigan Children's Ombudsman that MCL 712A.17c(7), the statutory
provision addressing the case preparation obligations of the child's
attorney, should not only be "better enforced," but "should
also be amended to specifically require that the child(ren)'s attorney
meet with the child(ren), at least once before each proceeding or hearing"
should be adopted.
Recommendation 23: Public Act 204
that "requires the Ombudsman to investigate and report alleged
infractions about attorneys who engage in adoption" should be amended
to "...require the Ombudsman to report violations of MCL 712A.17c(7)
to the Attorney Grievance Commission."
Recommendation 24: Prior to appointment,
all attorneys who represent the FIA, children, and parents in abuse
and neglect cases should be required to undergo mandatory training on
topics relevant to advocacy in the juvenile or family court forum and
provide information to the court on their experience level.
Recommendation 25: The recommendations
as outlined in the Final Report of the State Bar of Michigan Children's
Task Force (September 21, 1995) should be implemented, including that:
The State Bar of Michigan adopt [the Final Report's] Guidelines for
Advocates for Children and distribute them to bench, bar and other
interested persons throughout Michigan;
The Guidelines for Advocates for Children be implemented by the organized
bar, courts, and individual attorneys representing children in Michigan
courts for the improvement of such representation; and
Law schools, Michigan Judicial Institute, Institute for Continuing
Legal Education, other lawyer training units, and the Michigan CASA
Association use [the] Guidelines for Advocates for Children as a basis
for training attorneys and others to advocate for children.
Recommendation 26: The court,
attorneys for children, and the organized bar should consider establishing
mentorship programs in which more experienced attorneys provide guidance
to less experienced attorneys on child advocacy practice.
Recommendation 27: Recommendation
50 of the Binsfeld Commission Report should be adopted and expanded
upon. The Recommendation states: "[The] FIA should work with Prosecuting
Attorneys Association of Michigan (PAAM) to ensure Michigan's public
and private law schools have child welfare/protection/juvenile law curricula."
Added to it should be the statement that other Michigan child and parent
legal advocacy groups should also participate in curricula development
to ensure that subjects relevant to the representation of parents and
children are covered.
Attorneys for children must also be knowledgeable of Michigan's statutory
requirements for children's attorneys, the State Bar of Michigan Children's
Task Force's "Guidelines For Advocates For Children in Michigan
Courts," and the American Bar Association's "Standards of
Practice For Lawyers Who Represent Children in Abuse and Neglect Cases,"
approved by the American Bar Association's House of Delegates on February
5, 1996.
Recommendation 28: Attorneys representing
children and parents should receive compensation that is reasonable
and commensurate with the amount and complexity of work involved in
child abuse and neglect cases.
Recommendation 29: Compensation
systems should not be utilized that provide disincentives to fulfilling
responsibilities mandated by statutes, codes of professional responsibility
and other standards (e.g., annual, "no case cap" contracts).
Recommendation 30: Funding should
be provided for the establishment of Court Appointed Special Advocate
(CASA) programs in all counties in the state.
Recommendation 31: New programs
should work closely with already existing CASA programs in the state
to establish policy and procedure related to the recruitment, training,
screening and monitoring of CASA volunteers.
Recommendation 32: In order for
hearings to be effective, the SCAO should develop caseload standards
for the judiciary modeled after the formula developed in the Kent County
study.
Recommendation 33: The judiciary's
staffing resources should be carefully evaluated as a unified family
court is established in Michigan.
Recommendation 34: The impact
on caseload of recent changes in delinquency laws needs to be examined.
Recommendation 35: All judges
and referees handling abuse and neglect cases should familiarize themselves
with the Resource Guidelines' rationale supporting lengthier court proceedings
in routine or non-contested cases.
Recommendation 36: Courts should
require the assigned caseworker to submit a comprehensive report on
the progress being made toward the implementation of the case permanency
plan. A statute or court rule should be enacted which mandates that
these reports be submitted to the court, the parties' attorneys, and
unrepresented parties at least seven days prior to the scheduled hearing.
Courts should monitor the submission of reports and impose appropriate
sanctions for any failure to submit a report in a timely manner.
Recommendation 37: Judges and
referees handling abuse and neglect cases should ensure that assigned
caseworkers are present for all court proceedings and encourage and
mandate the attendance of age-appropriate children.
Recommendation 38: In addition
to the training recommended previously in this report, judges and referees
should receive specific training on the Resource Guidelines, in particular
the nature and content of preliminary hearings and permanency planning
reviews.
Recommendation 39: In order to
ensure that the removal of children from their families is the most
appropriate plan, courts must issue orders as to whether the FIA or
its agents have made or should make "reasonable efforts" to
prevent removal through the provision of adequate family preservation
services at all preliminary removal hearings.
Recommendation 40: Michigan's
system for funding foster care and other services to children and families
should be evaluated to modify those aspects of the system that create
financial disincentives to making negative findings of reasonable efforts.
Recommendation 41: The following
recommendations of the Children's Task Force of the State Bar of Michigan
should be adopted:
Implement a flexible funding mechanism that allows the court services
to follow the family;
Overhaul existing funding statutes so that they are driven by the
best interests of the child and not fiscal implications, so that issues
such as the following are addressed:
1. Amend existing law so that the reasonable efforts determination
required by federal mandate does not carry
a financial penalty to the county when the
court finds that reasonable efforts have not been made;
2. Amend existing law so that treatment plans and placement decisions
are independent of considerations regarding
funding sources and the parent's economic
circumstances.
Recommendation 42: Courts should
issue detailed written findings of fact and court orders that clearly
state the responsibilities of each party and time frames for satisfying
those responsibilities.
Recommendation 43: All Michigan
courts should work with their local FIA office to determine whether
adoption is being considered early enough as a permanency planning option
in all appropriate cases. This issue may be especially relevant in urban
courts.
Recommendation 44: Sufficient
funds should be appropriated by the Legislature to ensure the establishment
of appropriate preventive and reunification services, as well as placement
alternatives that ensure a child's safety and at the same time allow
for the timely implementation of permanency plans of family reunification,
permanent custody, adoption, or independent living.
Recommendation 45: Consideration
should be given to the establishment of Foster Care Review Boards in
those jurisdictions that currently do not have them.
Recommendation 46: The SCAO should
work with local FCRB representatives to evaluate how the Boards' recommendations
can be more effectively utilized by courts (e.g., scheduling of court
review if the FCRB disagrees with agency's permanency plan; attendance
of FCRB representatives at hearings to present case reports). Consideration
should also be given to how attorneys for the parties can be more actively
involved at FCRB hearings.
Recommendation 47: A state statutory
provision or court rule should be enacted that requires all judges and
referees to inquire fully as to whether or not an Indian child is the
subject of a neglect and abuse petition at the preliminary hearing in
all cases. The SCAO should work with local courts to insure that their
preliminary hearing form orders include language on the court's inquiry
about the child's Indian heritage.
Recommendation 48: The Court Improvement
Project Advisory Board, local courts, and the SCAO should investigate,
establish, and evaluate demonstration alternative dispute resolution
(ADR) programs in child abuse and neglect cases in selected sites in
accordance with the Resource Guidelines.
Recommendation 49: The SCAO should
identify Michigan courts that may be using the services of mediators
in child abuse and neglect cases and examine the effectiveness of those
programs in resolving disputes in the best interest of the child.
Recommendation 50: As unified
family courts are established within Michigan, consideration should
also be given to expanding already existing domestic relations mediation
programs to the realm of abuse and neglect cases taking into account
the Resource Guidelines' admonition that mediators be knowledgeable
on all aspects of child welfare.
Recommendation 51: The Kent County
model project on family group conferences should be evaluated for effectiveness
and possible replication in other Michigan counties.
Recommendation 52: Courts should
have the authority to order permanent guardianship, power of attorney
or "stand-by" guardianship, or open adoption as an alternative
permanency plan.
Recommendation 53: The recommendations
of the State Bar of Michigan Children's Task Force on permanent guardianship
should be adopted.
Recommendation 54: In order to
increase permanency planning options for children, consideration should
also be given to enacting legislation that permits "open"
adoption which in appropriate cases, allows a child and his or her biological
family to maintain contact after an adoption decree is issued.
Recommendation 55: The recommendations
of the State Bar of Michigan Children's Task Force on expanding the
statutory definition of "relative" for purposes of child placement
should be considered for implementation." The Recommendations incorporated
herein state:
The Task Force recommends that the Michigan Legislature expand MCL
712A.18(1); MSA 27.3178(598.18(1)) to allow for placement of children
in conformity to Act 116 of the Child Care Licensing and Regulation
Act, MCL 722.115a; MSA 25.358(15).
It is further recommended that the Michigan Legislature clarify the
definition of suitable relative placements in child protective proceedings
to allow the court the discretion to define "relatives" within
the context of the family relationship and community norms. Act 116
of the Child Care Licensing & Regulation Act should be amended to
allow for this expanded definition.
Recommendation 56: Kinship caregivers
should receive adequate financial subsidies and appropriate services
that will encourage kinship care for children who otherwise would be
placed in the public foster care system.
Recommendation 57: In light of
creation of the family division of the circuit court, and because it
is in the best interest of children, sufficient funding should be appropriated
by the legislature so that all Michigan courthouse facilities being
used for child abuse and neglect proceedings come into compliance with
the Resource Guidelines. In all facilities handling child abuse and
neglect cases, the following need to be created or, if currently available,
maintained:
adequate waiting and play rooms that are "child-friendly"
and designated for children;
courtrooms that are separate and apart from courtrooms used for criminal
and other civil cases, including delinquency cases;
adequate courtrooms so that all court participants, including judicial
officers, court staff, attorneys for the parties, can be comfortably
seated; attorneys should have access to adequate counsel table space
to allow for consultation with clients and for the taking of notes
and reviewing of files and other appropriate materials;
adequate and private conference rooms (in the vicinity of the juvenile
courtrooms) that enable attorneys to consult with their clients, including
child clients;
consistent policies about confidentiality of files and the public's
access to child abuse and neglect hearings.
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