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and family-related abductions of children) where allegations, with suf-
¬cient cause, of serious physical abuse, sexual molestation, or severe
neglect of a child are presented to the court not by a government agency
(i.e., child protective services) but by a parent, guardian, or other rela-
tive. The need of a child for competent, independent representation by a
lawyer is just as great in situation (3) as with cases in areas (1) and (2).

H-2. Entry of Compensation Orders. At the time the court appoints a
child™s attorney, it should enter a written order addressing compensation and
expense costs for that lawyer, unless these are otherwise formally provided
for by agreement or contract with the court, or through another government
agency.

Commentary
Compensation and expense reimbursement of individual lawyers should be
addressed in a speci¬c written court order[, which] is based on a need for
all lawyers representing maltreated children to have a uniform understand-
ing of how they will be paid. Commentary to Section 2.1(b) of the JUVENILE
JUSTICE STANDARDS observes that it is common for court-appointed lawyers to
be confused about the availability of reimbursement of expenses for case-related
work.

H-3. Immediate Provision of Access. Unless otherwise provided for, the
court should upon appointment of a child™s attorney, enter an order autho-
rizing that lawyer access between the child and the lawyer and to all privileged
information regarding the child, without the necessity of a further release.
The authorization should include, but not be limited to: social services,
Appendix B. Defending Liberty, Pursuing Justice 213

psychiatric, psychological treatment, drug and alcohol treatment, medical,
evaluation, law enforcement, and school records.

Commentary
Because many service providers do not understand or recognize the nature of the
role of the lawyer for the child or that person™s importance in the court proceeding,
these Standards call for the routine use of a written court order that clari¬es
the lawyers right to contact with their child client and perusal of child related
records. Parents, other caretakers, or government social service agencies should
not unreasonably interfere with a lawyer™s ability to have face-to face contact
with the child client nor to obtain relevant information about the child™s social
services, education, mental health, etc. Such interference disrupts the lawyer™s
ability to control the representation and undermines his or her independence as
the child™s legal representative.

H-4. Lawyer Eligibility for and Method of Appointment. Where the court
makes individual appointment of counsel, unless impractical, before making
the appointment, the court should determine that the lawyer has been trained
in representation of children and skilled in litigation (or is working under the
supervision of an lawyer who is skilled in litigation). Whenever possible, the
trial judge should ensure that the child™s attorney has had suf¬cient training
in child advocacy and is familiar with these Standards. The trial judge should
also ensure that (unless there is speci¬c reason to appoint a speci¬c lawyer
because of their special quali¬cations related to the case, or where a lawyer™s
current caseload would prevent them from adequately handling the case)
individual lawyers are appointed from the ranks of eligible members of the
bar under a fair, systematic, and sequential appointment plan.

Commentary
The JUVENILE JUSTICE STANDARDS 2.2(c) provides that where counsel is assigned
by the court, this lawyer should be drawn from “an adequate pool of competent
attorneys.” In general, such competency can only be gained through relevant
continuing legal education and practice-related experience. Those Standards
also promote the use of a rational court appointment process drawing from the
ranks of quali¬ed lawyers. The Abuse and Neglect Standards reject the concept of
ad hoc appointments of counsel that are made without regard to prior training
or practice.

H-5. Permitting Child to Retain a Lawyer. The court should permit the child
to be represented by a retained private lawyer if it determines that this lawyer
is the child™s independent choice, and such counsel should be substituted for
the appointed lawyer. A person with a legitimate interest in the child™s welfare
may retain private counsel for the child and/or pay for such representation,
214 Legal Ethics in Child Custody and Dependency Proceedings

and that person should be permitted to serve as the child™s attorney, subject to
approval of the court. Such approval should not be given if the child opposes
the lawyer™s representation or if the court determines that there will be a
con¬‚ict of interest. The court should make it clear that the person paying for
the retained lawyer does not have the right to direct the representation of the
child or to receive privileged information about the case from the lawyer.

Commentary
Although such representation is rare, there are situations where a child, or some-
one acting on a child™s behalf, seeks out legal representation and wishes that this
lawyer, rather than one appointed by the court under the normal appointment
process, be recognized as the sole legal representative of the child. Sometimes,
judges have refused to accept the formal appearances ¬led by such retained
lawyers. These Standards propose to permit, under carefully scrutinized condi-
tions, the substitution of a court-appointed lawyer with the retained counsel for
a child.


I. THE COURT™S ROLE IN LAWYER TRAINING

I-1. Judicial Involvement in Lawyer Training. Trial judges who are regularly
involved in child-related matters should participate in training for the child™s
attorney conducted by the courts, the bar, or any other group.

Commentary
2.1 indicates that it is the responsibility of the
JUVENILE JUSTICE STANDARDS
courts (among others) to ensure that competent counsel are available to represent
children before the courts. That Standard further suggests that lawyers should
“be encouraged” to qualify themselves for participation in child-related cases
“through formal training.” The Abuse and Neglect Standards go further by
suggesting that judges should personally take part in educational programs,
whether or not the court conducts them. The National Council of Juvenile and
Family Court Judges has suggested that courts can play in important role in
training lawyers in child abuse and neglect cases, and that judges and judicial
of¬cers can volunteer to provide training and publications for continuing legal
education seminars. See, RESOURCE GUIDELINES, at 22.

I-2. Content of Lawyer Training. The appropriate state administrative of¬ce
of the trial, family, or juvenile courts should provide educational programs,
live or on tape, on the role of a child™s attorney. At a minimum, the requisite
training should include:
1(1) Information about relevant federal and state laws and agency
regulations;
2(2) Information about relevant court decisions and court rules;
Appendix B. Defending Liberty, Pursuing Justice 215

3(3) Overview of the court process and key personnel in child-related
litigation;
4(4) Description of applicable guidelines and standards for
representation;
5(5) Focus on child development, needs, and abilities;
6(6) Information on the multidisciplinary input required in child-related
cases, including information on local experts who can provide con-
sultation and testimony on the reasonableness and appropriateness
of efforts made to safely maintain the child in his or her home;
7(7) Information concerning family dynamics and dysfunction including
substance abuse, and the use of kinship care;
8(8) Information on accessible child welfare, family preservation, medical,
educational, and mental health resources for child clients and their
families, including placement, evaluation/diagnostic, and treatment
services; the structure of agencies providing such services as well as
provisions and constraints related to agency payment for services;
and
9(9) Provision of written material (e.g., representation manuals, check-
lists, sample forms), including listings of useful material available
from other sources.

Commentary
The ABUSE AND NEGLECT STANDARDS take the position that it is not enough
that judges mandate the training of lawyers, or that judges participate in such
training. Rather, they call upon the courts to play a key role in training by
actually sponsoring (e.g., funding) training opportunities. The pivotal nature of
the judiciary™s role in educating lawyers means that courts may, on appropriate
occasions, stop the hearing of cases on days when training is held so that both
lawyers and judges may freely attend without docket con¬‚icts. The required
elements of training are based on a review of well-regarded lawyer training
offered throughout the country, RESOURCE GUIDELINES, and many existing
manuals that help guide lawyers in representing children.

I-3. Continuing Training for Lawyers. The court system should also assure
that there are periodic opportunities for lawyers who have taken the “basic”
training to receive continuing and “new developments” training.

Commentary
Many courts and judicial organizations recognize that rapid changes occur
because of new federal and state legislation, appellate court decisions, systemic
reforms, and responses to professional literature. Continuing education oppor-
tunities are critical to maintain a high level of performance. These Standards
216 Legal Ethics in Child Custody and Dependency Proceedings

call for courts to afford these “advanced” or “periodic” training to lawyers who
represent children in abuse and neglect related cases.

I-4. Provision of Mentorship Opportunities. Courts should provide indi-
vidual court appointed lawyers who are new to child representation the
opportunity to practice under the guidance of a senior lawyer mentor.

Commentary
In addition to training, particularly for lawyers who work as sole practitioners
or in ¬rms that do not specialize in child representation, courts can provide a
useful mechanism to help educate new lawyers for children by pairing them
with more experienced advocates. One speci¬c thing courts can do is to provide
lawyers new to representing children with the opportunity to be assisted by more
experienced lawyers in their jurisdiction. Some courts actually require lawyers
to “second chair” cases before taking an appointment to a child abuse or neglect
case. See, RESOURCE GUIDELINES, at 22.


J. THE COURT™S ROLE IN LAWYER COMPENSATION

J-1. Assuring Adequate Compensation. A child™s attorney should receive
adequate and timely compensation throughout the term of appointment
that re¬‚ects the complexity of the case and includes both in court and out-
of-court preparation, participation in case reviews and postdispositional
hearings, and involvement in appeals. To the extent that the court arranges
for child representation through contract or agreement with a program in
which lawyers represent children, the court should assure that the rate of
payment for these legal services is commensurate with the fees paid to equiv-
alently experienced individual court-appointed lawyers who have similar
quali¬cations and responsibilities.

Commentary
JUVENILE JUSTICE STANDARDS 2.1(b) recognize that lawyers for children should
be entitled to reasonable compensation for both time and services performed
“according to prevailing professional standards”, which takes into account the
“skill required to perform . . . properly,” and which considers the need for the
lawyer to perform both counseling and resource identi¬cation/evaluation activ-
ities. The RESOURCE GUIDELINES, at 22, state that it is necessary to provide
reasonable compensation “for improved lawyer representation of children and
that where necessary judges should urge state legislatures and local governing
bodies to provide suf¬cient funding” for quality legal representation.
Because some courts currently compensate lawyers only for time spent in
court at the adjudicative or initial disposition stage of cases, these Standards
Appendix B. Defending Liberty, Pursuing Justice 217

clarify that compensation is to be provided for out-of-court preparation time,
as well as for the lawyer™s involvement in case reviews and appeals. “Out-of-
court preparation” may include, for example, a lawyer™s participation in social
services or school case conferences relating to the client.
These Standards also call for the level of compensation where lawyers are
working under contract with the court to provide child representation to be
comparable with what experienced individual counsel would receive from the
court. Although courts may, and are encouraged to, seek high quality child
representation through enlistment of special children™s law of¬ces, law ¬rms, and
other programs, the motive should not be a signi¬cantly different (i.e., lower)
level of ¬nancial compensation for the lawyers who provide the representation.

J-2. Supporting Associated Costs. The child™s attorney should have access
to (or be provided with reimbursement for experts, investigative services,
paralegals, research costs, and other services, such as copying medical records,
long distance phone calls, service of process, and transcripts of hearings as
requested.

Commentary
The ABUSE AND NEGLECT STANDARDS expand upon JUVENILE JUSTICE STAN-
DARDS 2.1(c)which recognizes that a child™s attorney should have access to
“investigatory, expert and other nonlegal services” as a fundamental part of
providing competent representation.

J-3. Reviewing Payment Requests. The trial judge should review requests
for compensation for reasonableness based upon the complexity of the case
and the hours expended.

Commentary
These Standards implicitly reject the practice of judges arbitrarily “cutting down”
the size of lawyer requests for compensation and would limit a judge™s ability to
reduce the amount of a per/case payment request from a child™s attorney unless
the request is deemed unreasonable based upon two factors: case complexity and
time spent.

J-4. Keeping Compensation Levels Uniform. Each state should set a uni-
form level of compensation for lawyers appointed by the courts to represent
children. Any per/hour level of compensation should be the same for all
representation of children in all types of child abuse and neglect-related
proceedings.
218 Legal Ethics in Child Custody and Dependency Proceedings

Commentary
These Standards implicitly reject the concept (and practice) of different courts
within a state paying different levels of compensation for lawyers representing
children. They call for a uniform approach, established on a statewide basis,
towards the setting of payment guidelines.

K. THE COURT™S ROLE IN RECORD ACCESS BY LAWYERS

K-1. Authorizing Lawyer Access. The court should enter an order in child
abuse and neglect cases authorizing the child™s attorney access to all privileged
information regarding the child, without the necessity for a further release.

Commentary
This Standard requires uniform judicial assistance to remove a common bar-
rier to effective representation, i.e., administrative denial of access to signi¬cant
records concerning the child. The language supports the universal issuance of
broadly-worded court orders that grant a child™s attorney full access to informa-
tion (from individuals) or records (from agencies) concerning the child.

K-2. Providing Broad Scope Orders. The authorization order granting the
child™s attorney access to records should include social services, psychiatric,
psychological treatment, drug and alcohol treatment, medical, evaluation,
law enforcement, school, and other records relevant to the case.

Commentary
This Standard further elaborates upon the universal application that the court™s
access order should be given, by listing examples of the most common agency
records that should be covered by the court order.

L. THE COURT™S ROLE IN ASSURING REASONABLE LAWYER CASELOADS

L-1. Controlling Lawyer Caseloads. Trial court judges should control the
size of court appointed caseloads of individual lawyers representing children,
the caseloads of government agency-funded lawyers for children, or court
contracts/agreements with lawyers for such representation. Courts should
take steps to assure that lawyers appointed to represent children, or lawyers
otherwise providing such representation, do not have such a large open
number of cases that they are unable to abide by Part I of these Standards.

Commentary
THE ABUSE AND NEGLECT STANDARDS go further than JUVENILE JUSTICE STAN-
2.2(b) which recognize the “responsibility of every defender of¬ce to
DARD
ensure that its personnel can offer prompt, full, and effective counseling and
representation to each (child) client” and that it “should not accept more
Appendix B. Defending Liberty, Pursuing Justice 219

assignments than its staff can adequately discharge” by speci¬cally calling upon
the courts to help keep lawyer caseloads from getting out of control. The Com-
mentary to 2.2. (b) indicates that: Caseloads must not be exceeded where to do
so would “compel lawyers to forego the extensive fact investigation required in
both contested and uncontested cases, or to be less than scrupulously careful in
preparation for trial, or to forego legal research necessary to develop a theory of
representation.” We would add: “ . . . or to monitor the implementation of court
orders and agency case plans in order to help assure permanency for the child.”

L-2. Taking Supportive Caseload Actions. If judges or court administrators
become aware that individual lawyers are close to, or exceeding, the levels
suggested in these Standards, they should take one or more of the following
steps:
1(1) Expand, with the aid of the bar and children™s advocacy groups, the
size of the list from which appointments are made;
2(2) Alert relevant government or private agency administrators that their
lawyers have an excessive caseload problem;
3(3) Recruit law ¬rms or special child advocacy law programs to engage
in child representation;
4(4) Review any court contracts/agreements for child representation and
amend them accordingly, so that additional lawyers can be compen-
sated for case representation time; and
5(5) Alert state judicial, executive, and legislative branch leaders that exces-
sive caseloads jeopardize the ability of lawyers to competently repre-
sent children pursuant to state-approved guidelines, and seek funds
for increasing the number of lawyers available to represent children.

Commentary
This Standard provides courts with a range of possible actions when individual
lawyer caseloads appear to be inappropriately high.



APPENDIX


Previous American Bar Association Policies Related to Legal
Representation of Abused and Neglected Children

GUARDIANS AD LITEM FEBRUARY 1992


BE IT RESOLVED, that the American Bar Association urges:

1(1) Every state and territory to meet the full intent of the Federal Child
Abuse Prevention and Treatment Act, whereby every child in the
220 Legal Ethics in Child Custody and Dependency Proceedings

United States who is the subject of a civil child protection related
judicial proceedings will be represented at all stages of these proceed-
ings by a fully-trained, monitored, and evaluated guardian ad litem
in addition to appointed legal counsel.
2(2) That state, territory and local bar associations and law schools become
involved in setting standards of practice for such guardians ad litem,
clarify the ethical responsibilities of these individuals and establish
minimum ethical performance requirements for their work, and pro-
vide comprehensive multidisciplinary training for all who serve as
such guardians ad litem.
3(3) That in every state and territory, where judges are given discretion to
appoint a guardian ad litem in private child custody and visitation
related proceedings, the bench and bar jointly develop guidelines to
aid judges in determining when such an appointment is necessary to
protect the best interests of the child.



COURT-APPOINTED SPECIAL ADVOCATES AUGUST 1989

that the American Bar Association endorses the concept of
BE IT RESOLVED,
utilizing carefully selected, well trained lay volunteers, Court Appointed Spe-
cial Advocates, in addition to providing attorney representation, in depen-
dency proceedings to assist the court in determining what is in the best
interests of abused and neglected children. BE IT FURTHER RESOLVED, that
the American Bar Association encourages its members to support the devel-
opment of CASA programs in their communities.


COUNSEL FOR CHILDREN ENHANCEMENT FEBRUARY 1987

that the American Bar Association requests State and local
BE IT RESOLVED,
bar associations to determine the extent to which statutory law and court
rules in their States guarantee the right to counsel for children in juvenile
court proceedings; and BE IT FURTHER RESOLVED, that State and local bar
associations are urged to actively participate and support amendments to the
statutory law and court rules in their State to bring them in to compliance with
the Institute of Judicial Administration/American Bar Association Standards
Relating to Counsel for Private Parties; and BE IT FURTHER RESOLVED, that
State and local bar associations are requested to ascertain the extent to which,
irrespective of the language in their State statutory laws and court rules,
counsel is in fact provided for children in juvenile court proceedings and the
extent to which the quality of representation is consistent with the standards
and policies of the American Bar Association; and BE IT FURTHER RESOLVED,
Appendix B. Defending Liberty, Pursuing Justice 221

that State and local bar associations are urged to actively support programs of
training and education to ensure that lawyers practicing in juvenile court are
aware of the American Bar Association™s standards relating to representation
of children and provide advocacy which meets those standards.


BAR ASSOCIATION AND ATTORNEY ACTION FEBRUARY 1984

BE IT RESOLVED, that the American Bar Association urges the members of the
legal profession, as well as state and local bar associations, to respond to the
needs of children by directing attention to issues affecting children including,
but not limited to: . . . (7) establishment of guardian ad litem programs.


BAR AND ATTORNEY INVOLVEMENT IN CHILD PROTECTION CASES
AUGUST 1981

that the American Bar Association encourages individual
BE IT RESOLVED,
attorneys and state and local bar organizations to work more actively to
improve the handling of cases involving abused and neglected children as
well as children in foster care. Speci¬cally, attorneys should form appropriate
committees and groups within the bar to . . . work to assure quality legal
representation for children. . . .
BE IT RESOLVED, that the American Bar Association adopt (the volume of
the) Standards for Juvenile Justice (entitled) Counsel for Private Parties . . .
appendix c


In re Car Simulation and Analysis


IN RE CAR

This case involves four family members, Gail Car (mother), William Car
(father), Ti¬ni Car (sister), and Ming Car (sister), in a child abuse dependency
action alleging that Gail threw hot water on Ti¬ni, causing her severe burns.
The petition also alleges that Ti¬ni is an uncontrollable child who needs to be
placed in a court-supervised group home where she will learn the importance
of being responsible and of following the reasonable demands of her adult
custodian. Attached to this set of General Instructions you will ¬nd a 12-page
dependency court ¬le that contains all pleadings in the instant case.
Your responsibility in this negotiation and/or mediation is to represent
your client(s) during a preadjudication (pretrial) negotiation. You should
seek to perfect your client™s interests while attempting to resolve this dispute
without the necessity of a formal trial (the adjudication hearing). It should
be noted that the Department™s responsibility is to represent the best interests
of the children as determined by the Department. Because the Department™s
views regarding the children™s best interests may con¬‚ict with the children™s
expressed desires, the Code of Professional Responsibility may require the
appointment of separate counsel for the children. Assume that you represent
both children, Ti¬ni and Ming Car.
The dependency petition alleges that Ti¬ni Car sustained second-degree
burns to her body that would not have occurred except for the unreasonable
neglectful or intentional acts by her mother, Gail Car. The following petition
supplies all the relevant facts.
SUPERIOR COURT DEPENDENCY PETITION

TIFINI AGE: 16 J9480 DPSS REGION 5 COURT DATE: 3-23-00
CAR, MING AGE: 6 J9480 DPSS REGION 5 COURT DATE: 3-23-00


REASON FOR HEARING:


THIS MATTER IS ON CALENDAR FOR


X ADJUDICATION
DISPOSITION SOCIAL STUDY


A PETITION WAS FILED ON BEHALF OF THE MINOR(S) ON 1-23-00
UNDER SECTION(S) 300, SUBDIVISION(S) 601 OF THE JUVENILE COURT
LAW AT THE REQUEST OF THE LOS ANGELES POLICE DEPARTMENT.

X THE PETITION HAS NOT BEEN ADJUDICATED. IT ALLEGES MINOR SUF-
FERED SECOND-DEGREE BURNS TO HER BODY THAT WOULD NOT OCCUR
EXCEPT FOR UNREASONABLE NEGLECTFUL ACTS OR OMISSIONS BY
MINOR™S PARENTS. ON JANUARY 11, -00, MINOR AND MOTHER WERE
INVOLVED IN A VIOLENT ALTERCATION ENDANGERING MINOR™S PHYS-
ICAL AND EMOTIONAL SAFETY. MINOR HAS SPECIAL PROBLEMS AND
MINOR™S PARENTS HAVE A LIMITED ABILITY TO DEAL WITH THEM. THEY
INCLUDE SCHOOL ABSENTEEISM AND INCORRIGIBLE BEHAVIOR. MINOR
HAS BEEN ON PROBATION. THE PETITION WAS SUSTAINED ON BY PLEA
EVIDENCE. THE SUSTAINED PETITION ALLEGATIONS FORMED THE BASIS
OF THE REUNIFICATION PLAN.


X IT IS RESPECTFULLY RECOMMENDED THAT THE MINOR(S) TIFINI CAR BE
DECLARED A DEPENDENT CHILD OF THE COURT UNDER SECTION 300, SUB-
DIVISION(S) A & D OF THE JUVENILE COURT LAW;


X THE MINIOR WAS RELEASED ON 1“23“00 FATHER AS TO MINOR TIFINI


RECOMMENDATION:


IT IS RESPECTFULLY RECOMMENDED THAT THE PETITION FILED
ON BEHALF OF THE MINOR(S) MING CAR BE DISMISSED WITHOUT
PREJUDICE.

X THAT THE MINOR(S) TIFINI CAR RESIDE IN THE HOME OF
MOTHER/FATHER UNDER THE SUPERVISION OF THE DEPARTMENT
OF PUBLIC SOCIAL SERVICES PENDING FURTHER ORDER OF THE
COURT;



225
226 Legal Ethics in Child Custody and Dependency Proceedings

X THAT THE CUSTODY OF THE MINOR(S) BE TAKEN FROM THE
PARENTS AND GUARDIANS, AND THE MINOR(S) BE COMMITTED TO
THE CARE, CUSTODY AND CONTROL OF THE DEPARTMENT OF PUBLIC
SOCIAL SERVICES FOR SUITABLE PLACEMENT, AS DETAILED IN THE
JUVENILE COURT™S DEPENDENCY DISPOSITION MINUTE ORDER FORM;
THAT MINOR BE DETAINED AT PENDING PLACEMENT, EXCEPT
FOR PRE-PLACEMENT VISITS;
THAT MINOR BE RELEASED TO PENDING PLACEMENT;
THAT DPSS HAVE DISCRETION TO PLACE THE MINOR(S) IN THE
HOME OF THE FOLLOWING RELATIVE
THAT MINOR REMAIN AS PLACED UNDER THE SUPERVISION OF THE
DEPARTMENT OF SOCIAL SERVICES;


X THAT THE COURT ORDER THE DEPARTMENT OF PUBLIC SOCIAL
SERVICES TO PROVIDE


X FAMILY MAINTENANCE SERVICES
FAMILY REUNIFICATION SERVICES
PERMANENT PLACEMENT SERVICES


X THAT THE VISITS TO THE MINOR(S) BE AT THE DISCRETION OF THE DPSS
WITH THE EXCEPTION THAT VISITS TO THE MINOR(S) TIFINI CAR
BE AS FOLLOWS:


X NO RESTRICTIONS


X MONITORED VISITS FOR GAIL CAR AS ARRANGED BY DPSS


X NO VISITS BY PENDING FURTHER ORDER OF THE COURT;


X THAT MINOR AND MINOR™S PARENTS BE ORDERED TO PAR-
TICIPATE IN A PROGRAM OF COUNSELING AS APPROVED BY DPSS


X THAT COUNSELING INCLUDE MOTHER-DAUGHTER COUNSELING


X THAT MINOR(S) SCHOOL RECORDS BE DISCLOSED TO DPSS ON REQUEST
PURSUANT TO EDUCATION CODE SECTION 49061;


OTHER


X THAT THE MATTER BE CONTINUED TO THE NONAPPEARANCE CAL-
ENDAR OF AND TO THE APPEARANCE CALENDAR OF 6/1/00 IN
DEPARTMENT D/C FOR JUDICIAL REVIEW AND REPORT FROM THE
DEPARTMENT OF PUBLIC SOCIAL SERVICES CHILDREN™S SERVICES
WORKER.
Appendix C. In re Car 227

FAMILY ASSESSMENT

FAMILY HISTORY

SOCIAL-CULTURAL HISTORY OF EACH PARENT, PARENT FIGURE, MINOR(S),
AND OTHER SIGNIFICANT PARTIES


PARENT MARITAL EDUCATION EMPLMNT INCOME CRIMINAL
STATUS HISTORY

GAIL CAR SEP. 11TH GRADE SCREEN EXTRA $800-$900/MO. 1 ARREST-
SHOPLIFTING

WILLIAM CAR SEP. HS. GRAD MGR. LIQUOR ARREST FOR
STORE RESISTING
ARREST



MR. CAR WAS BORN IN LOS ANGELES, CALIFORNIA. HE IS ONE OF
FIVE CHILDREN AND DESCRIBES HIMSELF AS COMING FROM A FAM-
ILY WHERE THERE WAS LOTS OF LOVE. HE WAS RAISED BY HIS NATU-
RAL PARENTS WITHOUT ANY OUTSTANDING PROBLEMS. HIS MOTHER
WAS A HOMEMAKER WHO STAYED HOME AND RAISED ALL FIVE OF
HER CHILDREN.

WHEN MR. CAR LEFT HIGH SCHOOL, HE BECAME A HAIR STYLIST
AND ULTIMATELY MARRIED MINOR™S MOTHER. THIS IS HIS ONLY MAR-
RIAGE. THE COUPLE HAVE THREE CHILDREN, BRIAN CAR, NOW AGE
18; THE MINOR TIFINI, NOW AGE 16; AND MING, AGE 6. BRIAN CAR
LIVES WITH HIS MOTHER AS HAVE THE OTHER CHILDREN SINCE
THE COUPLE™S SEPARATION. BRIAN IS EXPERIENCING DIFFICULTIES
MAKING THE TRANSITION INTO ADULTHOOD, ACCORDING TO HIS
FATHER.

MR. CAR HAS PAID CHILD SUPPORT NOW AND THEN. ACCORD-
ING TO MR CAR, THE COUPLE™S MARRIAGE FAILED BECAUSE HIS
WIFE BECAME INVOLVED IN FILM WORK AND THE GLAMOROUS LIFE
ASSOCIATED WITH THAT. HE WAS UNCOMFORTABLE WITH THIS
CHANGE IN THEIR HOME LIFE AND UNCOMFORTABLE WITH HER NEW
FRIENDS.

PRESENTLY, MR. CAR LIVES WITH HIS MOTHER AND AN ADULT SIS-
TER AND HER CHILDREN IN A LARGE NICELY FURNISHED HOME IN A
RESIDENTIAL NEIGHBORHOOD IN THE LOS ANGELES AREA. MR. CAR
AND HIS MOTHER RESIDE IN HOME AT THE BACK OF THE LOT. THE
MINOR TIFINI IS SLEEPING IN THE MAIN HOME. MR. CAR INTENDS TO
LOCATE OTHER LIVING QUARTERS IN A MONTH OR SO. THE MINOR
TIFINI IS ATTENDING 11TH GRADE AT FAIRFAX HIGH.
228 Legal Ethics in Child Custody and Dependency Proceedings

GAIL CAR WAS BORN IN DETROIT, MICHIGAN. SHE IS AN ONLY CHILD
AND WAS RAISED BY HER PARENTS UNTIL HER FATHER DIED WHEN
SHE WAS EIGHT YEARS OLD. HER FATHER WAS A PRIZEFIGHTER AND
HER MOTHER A SUNDAY SCHOOL TEACHER. AFTER HER FATHER™S
DEATH, THE EXTENDED FAMILY ASSISTED HER MOTHER IN RAISING
MS. CAR.

ACCORDING TO MS. CAR, THE DEATH OF HER FATHER WAS DIFFICULT
AS THE THREE OF THEM WERE LIVING IN CALIFORNIA AND ALONE
WHEN HE DIED WITHOUT FAMILY. HIS DEATH WAS SUDDEN.

MS. CAR STATES SHE OBTAINED GOOD GRADES IN SCHOOL AND
DESCRIBED HER RELATIONSHIP WITH HER MOTHER AS ONE OF
FRIENDSHIP. HER FATHER AND MOTHER USED CORPORAL PUNISH-
MENT ON OCCASION UNTIL SHE WAS BELIEVED TO BE TOO OLD FOR
THAT, AND THEN OTHER FORMS OF DISCIPLINE WERE USED.

MS. CAR LEFT SCHOOL IN THE 11TH GRADE DESPITE GOOD GRADES
FOR A REASON THAT CAN ONLY BE DESCRIBED AS CERTAINLY
VAGUE AND BIZARRE. SHE ATTENDED SEVERAL HIGH SCHOOLS AND
REQUIRED A BODYGUARD, ACCORDING TO SCHOOL PERSONNEL™S
REPORTS TO HER MOTHER. AT HER LAST SCHOOL, SHE ATTENDED
ONE DAY AND THEN SHE AND HER MOTHER WERE TOLD THAT SHE
WOULD NOT BE ALLOWED TO ATTEND ANY SCHOOL IN THE LOS
ANGELES AREA. SHE MAINTAINED THE REASONS FOR THIS WERE
NEVER KNOWN.

SHE WAS 16 AND HER MOTHER WANTED TO SEND HER TO SWITZER-
LAND TO COMPLETE SCHOOL, BUT MS. CAR DID NOT WANT TO LEAVE
THE COUNTRY. SHE ENTERED COSMETOLOGY TRAINING AND MET
MINOR™S FATHER. MS. CAR REPORTS THEY DATED FOR THREE YEARS
AND SHE BECAME PREGNANT WITH THE MINOR BRIAN.


ACCORDING TO MS. CAR, SHE WAS A HOUSEWIFE DURING THE MAR-
RIAGE. SHE FEELS THE MARRIAGE FAILED POSSIBLY BECAUSE SHE
NEVER HAD AN OPPORTUNITY TO BE ON HER OWN AND EXPERIENCE
ANY FREEDOM AS AN ADULT. THE COUPLE™S SEPARATION TWO YEARS
AGO WAS AMIABLE AND THEY GENERALLY SEEMED TO HAVE ACTED
IN THE BEST INTERESTS OF THEIR CHILDREN WHERE THEIR OWN
RELATIONSHIP IS CONCERNED. THEY STILL SEE EACH OTHER, BUT
MS. CAR CONSIDERS THEIR SEPARATION PERMANENT AT THIS TIME.

AT THIS TIME MS. CAR IS LIVING WITH MING AND BRIAN IN A LARGE,
ROOMY, NICELY FURNISHED APARTMENT SHE HAS RECENTLY OB-
TAINED. MING HAS BEEN ENROLLED AT 18TH STREET ELEMENTARY
SCHOOL. THERE IS SOME CONCERN OVER THE NUMBER OF TARDIES
Appendix C. In re Car 229

AND ABSENCES THAT MING HAS EXPERIENCED IN SCHOOL. ACCORD-
ING TO MS. CAR, HER 18-YEAR-OLD SON HAS BEEN RESPONSIBLE FOR
GETTING MING TO SCHOOL. THIS ARRANGEMENT DOES NOT APPEAR
TO BE WORKING WELL, AND IT WOULD SEEM ADVISABLE THAT MS.
CAR MAKE OTHER ARRANGEMENTS BEFORE THE CITY SCHOOL PUPIL
SERVICES AND ATTENDANCE BECOMES INVOLVED.



FAMILY FUNCTIONING

THE SPECIFIC PROBLEMS THAT REQUIRE JUVENILE COURT JURISDIC-
TION AND DPSS SUPERVISION ARE:

1. MINOR, TIFINI, RECEIVED 2ND DEGREE BURNS TO HER BACK AS A RESULT
OF A VIOLENT ALTERCATION BETWEEN HER AND HER MOTHER. ACCORD-
ING TO A MATERNAL GRANDMOTHER WHO WITNESSED THE INCIDENT,
THE ALTERCATION WAS INITIATED BY THE MINOR WHO REPORTEDLY
THREW A BOWL OF KNIVES AT HER MOTHER. MINOR™S MOTHER ADMIT-
TEDLY RETALIATED, CLAIMING SELF-DEFENSE, BY THROWING HOT
WATER ON THE MINOR.


THE POTENTIAL FOR VIOLENCE BETWEEN MINOR AND MOTHER IS EVI-
DENT AND MINOR™S CUSTODY SHOULD NOT BE RETURNED TO HER MOTHER
UNTIL THE PARENT AND CHILD HAVE HAD SUFFICIENT EFFECTIVE COUN-
SELING SO AS TO ENSURE THAT MINOR WILL NOT EXPERIENCE FURTHER
ABUSE.


2 MINOR, TIFINI, HAS SPECIAL AND UNIQUE PROBLEMS AND MINOR™S PAR-
ENTS HAVE A LIMITED ABILITY TO DEAL WITH SUCH PROBLEMS. THE
MINOR TIFINI HAS BEEN ARRESTED TWO TIMES. HER LAST ARREST WAS
FOR SHOPLIFTING AND SHE DID NOT COOPERATE WITH THE PROBATION
DEPARTMENT™S DIVERSION PROGRAM. HER PROBATION CASE WAS DIS-
MISSED BECAUSE THE FAMILY MOVED AWAY. SHE HAS NOT DONE WELL
IN SCHOOL AND SHE HAS BEEN BOTH TRUANT AND SUSPENDED IN THE
PAST.


FOR THE MOST PART, IT WOULD APPEAR THAT THE MINOR™S PROBLEMS
WITH HER MOTHER CENTER AROUND DEFIANCE AND HER MOTHER™S
STRICTNESS. TIFINI SEEMS TO BE DOING WELL AT HER FATHER™S HOUSE
AND HE DESCRIBES HIMSELF AS LENIENT. THUS FAR, THERE IS NO EVI-
DENCE THAT SHE IS PRESENTING HIM PROBLEMS.


HOWEVER, WITHOUT COUNSELING, ONE WOULD ANTICIPATE THAT PROB-
LEMS WILL DEVELOP. ALSO IT IS CLEAR THAT HER FATHER HAS NOT
PROVIDED THE KIND OF STRUCTURE TIFINI REQUIRES IN ORDER TO COPE
WITH HER PROBLEMS WITH AUTHORITY FIGURES.
230 Legal Ethics in Child Custody and Dependency Proceedings

FAMILY STRENGTHS THAT COULD AID IN PROBLEM RESOLUTION ARE:


MR. AND MS. CAR, DESPITE THEIR SEPARATION, MAINTAIN AN AMI-
ABLE RELATIONSHIP THAT WORKS IN THE BEST INTEREST OF THEIR
CHILDREN. DESPITE SEPARATION, MR. CAR HAS MAINTAINED AN
ONGOING RELATIONSHIP WITH HIS CHILDREN AND SEES THEM REGU-
LARLY. MR. CAR, BUT NOT MS. CAR, VERBALIZES A WILLINGNESS FOR
COUNSELING.

WHILE MR. CAR HAS EXPRESSED A DESIRE TO GET TIFINI INTO COUN-
SELING, THUS FAR HE HAS NOT DONE SO. HE WOULD PREFER THE
COURT NOT TAKE JURISDICTION OF TIFINI, BUT IT WOULD SEEM INDI-
CATED IN THIS CASE IF THIS MINOR IS TO PROCEED INTO ADULT-
HOOD IN A HEALTHY MANNER. THERE IS ALSO A QUESTION OF THE
AMOUNT OF SUPERVISION MR. CAR IS ABLE TO EXERCISE OVER THE
MINOR. SHE FAILED HER APPOINTED INTERVIEW WITH MR. CAR AND
THE CSW CONDUCTING THIS INVESTIGATION. SHE ALSO FAILED TO
CONTACT THE CSW BY TELEPHONE AS REQUESTED.

THERE IS NO EVIDENCE THAT THE MINOR MING IS IN DANGER OF
ABUSE FROM HER MOTHER. WHILE THERE IS SOME CONCERN FOR
MING™S ABSENCES AND TARDINESS TO SCHOOL, IT IS FELT THAT MS.
CAR WILL CORRECT THESE WITHOUT THE COURT™S JURISDICTION. IT
IS ALSO HOPED THAT, THROUGH COUNSELING TO DEAL WITH TIFINI™S
PROBLEMS, MS. CAR WILL GAIN THE INSIGHT AND SKILLS NECESSARY
TO TAKE MING THROUGH HER TEEN YEARS WITHOUT THE SAME SIT-
UATION DEVELOPING.

PREVIOUS REMEDIAL SERVICES


THIS FAMILY WAS UNKNOWN TO SERVICES AGENCIES PRIOR TO THE PETITION
REQUEST


X THIS FAMILY HAS RECEIVED SOCIAL SERVICES IN THE PAST FROM



PROVIDER SERVICE YEAR

LA. COUNTY OF PROBATION DIVERSION PROGRAM INCOMPLETED BY
MINOR -01



SERVICES WERE FOR CURRENTLY IDENTIFIED PROBLEMS X YES NO


AS THE RESULT OF THE PETITION REQUEST, DPSS HAS PROVIDED THE FOL-
LOWING INITIAL SERVICES BASED ON THE PROBLEMS IDENTIFIED IN THE
REQUEST
Appendix C. In re Car 231

PROBLEM
GIVEN/REFERRED SERVICE/RESOURCE DATE

CARE/PROTECTION FOR MINOR SHELTER CARE, PLACEMENT 1-23-00
WITH FATHER



PLAN FOR SERVICES:


X THE INITIAL SERVICES OFFERED HAVE BEEN EFFECTIVE AND WILL BE
CONTINUED
THE INITIAL SERVICES OFFERED WERE NOT EFFECTIVE FOR THE FOLLOW-
ING REASONS


THE SERVICES PLAN FOR THE FAMILY FOR THE NEXT PERIOD OF
SUPERVISION WILL BE:

X FAMILY MAINTENANCE SERVICES
FAMILY REUNIFICATION SERVICES
PERMANENCY PLANNING


OBJECTIVES AND TIMETABLES


TO MAINTAIN THE MINOR TIFINI IN HER FATHER™S HOME DURING THE
COMING SIX MONTHS.

1. MINOR™S FATHER TO ENTER TIFINI INTO COUNSELING WITHIN TWO WEEKS
OF THIS HEARING.

2. MINOR™S FATHER TO MAINTAIN AN ADEQUATE DEGREE OF SUPERVISION
OVER MINOR AND HER WHEREABOUTS.

3. MINOR™S PARENTS TO PARTICIPATE IN COUNSELING WHEN AND AS INDI-
CATED, BY MINOR™S THERAPIST.

4. MINOR TIFINI IS TO REGULARLY ATTEND SCHOOL AND MAINTAIN ATTEN-
DANCE AND GRADES AT AN ACCEPTABLE LEVEL.



During your fact investigation and interviews with all the parties, you have
discovered the following information:

A. TIFINI:
1. Ti¬ni does not want to return to live with her mother, Gail, under any
circumstances;
2. Ti¬ni strongly desires for the court to declare her emancipated pursuant
to § 7120;
232 Legal Ethics in Child Custody and Dependency Proceedings

3. George Johnson, the father of Ti¬ni™s best friend, Amy Johnson, has
offered Ti¬ni a job working in his restaurant. She would work three
nights a week and two nights on weekends from 4:00“8:00 p.m. She
would earn approximately $250.00 a week. The job would not interfere
with her attending school;
4. Although she really wants to be emancipated, she will consider moving
in with her father;
5. If she lives with her father, she would also like Ming to live there too
so that she will not have to see her mother, Gail, every time she visits
Ming;
6. She wants the § 601 petition dismissed because she will obey the rea-
sonable conditions her dad sets up and will no longer need to deal with
her mother™s overreaching control of her life.

B. MING:
7. Ming is in a unique position because the Department is willing to dismiss
the petitions alleging that she should be declared a ward of the court;
8. Ming is willing to live anywhere and with anyone as long as she is able
to stay with Ti¬ni;
9. Ming has indicated that she considers Ti¬ni her real mother because
Ti¬ni, not Gail, provides her with most of her daily physical and emo-
tional care;
10. However, if she can™t live with Ti¬ni, she would rather live with her
mother, Gail, than her father, William;
11. Ming was in the next room during the altercation between Gail and
Ti¬ni. However, after hearing the argument, she thinks that the burns
were caused by an accident and that her mother never intended to hurt
Ti¬ni.

C. GAIL:
12. Gail does not want Ti¬ni to live with her father because she feels that
Ti¬ni™s problems with self-control and her attitude toward authority
¬gures will be exacerbated;
13. Gail does not want Ti¬ni to return home until she is willing to listen to
Gail™s reasonable demands;
14. Gail is willing to agree to Ti¬ni™s proposed emancipation upon the
condition that the court order Ti¬ni to attend psychological counseling
to help her with her anger and resentment of authority ¬gures;
15. Only if the Department threatens to permanently sever Gail™s parental
rights will she agree to attend counseling;
16. Gail is unwilling to voluntarily permit Ming to live with William, even
if the court grants William custody of Ti¬ni.
Appendix C. In re Car 233

D. WILLIAM:
17. William Car is adamantly opposed to Ti¬ni™s proposed emancipation
and would only consent if the court will agree to continue periodically
monitoring her welfare;
18. William does not think that Ti¬ni should return to Gail™s home;
19. If Ti¬ni cannot be placed with him, he thinks that the best alterna-
tive placement is with a foster family, as long as the court grants him
reasonable unmonitored visitation with Ti¬ni;
20. He would like Ming to live with him even if he does not become Ti¬ni™s
custodial parent.

E. THE DEPARTMENT:
21. The Department™s two main interests are the protection of Ti¬ni Car
and placing Ti¬ni Car in a custodial arrangement that will help her
learn personal responsibility and the importance of complying with
reasonable demands of her custodial parent or guardian;
22. Because the Department has no plans at the present time to seek a
severance of the parental bond between Gail Car and Ti¬ni Car, the
Department wants Gail to participate in either individual or family
counseling;
23. If the Department can be convinced that emancipation is in the best
interest of Ti¬ni Car, it will probably not oppose such a motion;
24. If this case proceeds to trial the Department will argue against placing
Ti¬ni Car in her father™s home because he does not appear to have the
capacity to provide Ti¬ni the disciplined upbringing she needs;
25. Depending on how the parents participate and react in this negotiation
and/or mediation, the Department may reconsider its intent to dismiss
the petition regarding Ming Car. If the parents appear unreasonable,
the Department will seek to have Ming Car placed in foster care.


ETHICAL ANALYSIS OF IN RE CAR

In re Car provides an opportunity to negotiate or mediate an out-of-court
settlement in a dependency child abuse case. The procedural context is
very simple. The Department of Social Services has ¬led a petition alleg-
ing that Gail Car, the divorced custodial mother of 16-year-old Ti¬ni Car
and 6-year-old Ming Car, intentionally threw a pan of hot water on Ti¬ni
Car during a heated verbal confrontation with Ti¬ni, causing her to suffer
second-degree burns. The negotiation takes place after the state met its bur-
den of demonstrating a prima facie case at the detention hearing (the rough
equivalent of an arraignment in criminal court), but before the trial on the
234 Legal Ethics in Child Custody and Dependency Proceedings

merits (the adjudication hearing). During this negotiation ¬ve parties will
be represented by four separate counsel:

Gail Car (custodial mother of Ti¬ni and Ming Car);
William Car (noncustodial father of Ti¬ni and Ming Car);
Ti¬ni and Ming are represented by you; and
The Department of Social Services.

One of the issues that the attorneys need to raise, especially in rela-
tion to Gail Car, is the scope of con¬dentiality and/or immunity during
the mediation. Because the charges of intentional child abuse could also be
¬led against Gail Car in a criminal case, she will obviously be unwilling
to participate in the mediation without some assurance of con¬dentiality
and/or immunity. For a discussion of con¬dentiality and immunity in child
abuse mediations, see William Wesley Patton, Child Abuse: The Irreconcilable
Differences between Criminal Prosecution and Informal Dependency Court
Mediation, 31 U. Louisville J. of Family L. 37 (1992“93).

A. LEGAL ISSUES.

A. THE PLEADINGS.
One of the central procedural issues in this negotiation is whether the
case will proceed only in the child dependency court or whether actions will
be brought against Ti¬ni as a status offender or against Gail in criminal court.

II. EVIDENTIARY ISSUES.
It is likely that during the negotiation the various parties will use the
admissibility and weight of various evidence as leverage. The following dis-
cussion lists some of the major evidentiary debates in which the parties may
engage:

1. Ti¬ni Car.
The FAMILY ASSESSMENT lists two of Ti¬ni™s prior arrests. In many juris-
dictions prior arrests, as opposed to convictions, are inadmissible evidence.
However, pursuant to Federal Rules of Evidence, Rule 404(b), if the propo-
nent can demonstrate a relevant use, other than to demonstrate the character
of a person to show that he or she acted in conformity with the prior bad
act, the evidence may be admissible. Although Ti¬ni™s attorney will argue
that the prior arrests are not admissible at the dependency or status abuse
adjudications, the Department will probably argue that they are admissible
to demonstrate that Ti¬ni “did not follow through on the requirement of
community service work.” The Department will argue that the prior arrests
Appendix C. In re Car 235

and failure to meet diversion requirements demonstrate a lack of control
by the parents and a refusal by Ti¬ni to follow express orders by a gov-
ernment of¬cial. This evidence is relevant to illustrate the need for declar-
ing Ti¬ni a ward of the court so that it can closely monitor Ti¬ni and her
parents.

2. Ming Car.
Because Ming is only 6 years old, there may be questions whether, if
the case goes to trial, she is suf¬ciently competent to testify. Many evidence
codes, including the Federal Rules of Evidence, Rule 601, provide that all
witnesses are presumptively competent. However, Rule 602 still requires that
the witness have personal knowledge of the facts to which they testify. Ming™s
con¬dential instructions indicate that she was in the next room when Gail
and Ti¬ni argued and when Gail allegedly threw the pan of hot water at
Ti¬ni. Based upon the verbal ¬ght, Ming thinks that the burning was just an
accident. The Department will probably argue that, because Ming did not
see the confrontation, but merely heard the ¬ght out of context, she lacks
personal knowledge. They will also argue that Ming™s conclusion that the
injury was accidental is pure speculation.

3. Gail Car.
The mother, Gail Car, will argue that her family history as a child is
inadmissible. She will probably argue that her parents™ use of corporal pun-
ishment on her as a child is also inadmissible. Further, she will argue that
her need for a bodyguard at school is inadmissible. The Department will
argue that that evidence is relevant to demonstrate that Gail was reared in a
family environment that saw violence (corporal punishment) as one means
of controlling children and that the need for a bodyguard further re¬‚ects
on Gail being surrounded by violence. The Department may argue that the
psychological literature has established a nexus between the manner in which
a child is reared and the child-rearing methods that child will use as an adult
while rearing her own child. In addition to the speci¬c instances of bad acts,
there is a great deal of data regarding Gail™s relationship with her parents
that she may argue should be inadmissible because the probative value is
substantially outweighed by its prejudicial impact. However, because most
dependency child abuse cases are court trials, not jury trials, it is unlikely
that the evidence will be excluded under Fed. R. Evid. 403.

4. William Car.
The father, William Car, will probably make arguments similar to Gail™s
regarding the data describing his past. However, because much of this infor-
mation casts William in a positive light, his attorney will have a dif¬cult
236 Legal Ethics in Child Custody and Dependency Proceedings

strategic decision whether or not to object were the case to proceed to the
adjudication hearing [trial].

C. NEGOTIATION STRATEGIES.

1. Ti¬ni Car.
Ti¬ni Car wants to be emancipated pursuant to § 7120. Her best friend™s
father, George Johnson, has offered Ti¬ni a job from 4:00“8:00 p.m. at his
restaurant and she will earn approximately $250.00 dollars a week. That job
will enable her to continue attending school and work three nights a week
and two nights on the weekend. Her con¬dential instructions indicate that
under no circumstances does she want to move back home to live with her
mother, Gail Car. Although she might consider moving in with her father,
William Car, she really prefers emancipation. Further, she will argue that if
she is emancipated the court should dismiss both the dependency and status
offenses cases because emancipation will prevent further violence between
her and her mother.

2. Ming Car.
Ming Car is willing to live in any arrangement in which she and Ti¬ni will
remain together. She relies more heavily on Ti¬ni to help rear her than on
her mother or father. She does not care whether they live with their mother,
father, or with foster parents. One of the most interesting VII-21 aspects of
Ming™s case is that the Department is recommending that the petition regard-
ing her be dismissed. Her attorney is thus placed in a dif¬cult position. If
he or she cooperates with the Department regarding the relationship among
Ti¬ni, Gail, and William, it is likely that the Department will make its rec-
ommendation of dismissal to the court, which has the ultimate authority to
accept or reject the Department™s motion to dismiss. However, if the attorney
represents Ming™s position that she wants to stay with her sister no matter
where Ti¬ni is ultimately placed, he or she risks alienating the Department,
which might result in the Department deciding to proceed with its petition
regarding Ming. Because Ming is only 6 years old, her attorney will have
a dif¬cult time explaining to her the legal consequences of her negotiation
and/or mediation strategy.
Thus, it appears to be a violation of the duty of loyalty, zealousness, and
competence to represent both Ti¬ni and Ming because a zealous argument
for emancipating Ti¬ni will frustrate Ming™s goal of remaining with her in any
custodial arrangement. Further, the more that an attorney zealously argues
that the mother, Gail, is dangerous, the more likely the dependency court
will ¬nd that Ming is also in danger. As a result, Ming may not only be placed
Appendix C. In re Car 237

without Ti¬ni but may also be taken away from her only other emotional
bond, her mother.

3. Gail Car.
Gail™s case is extremely complex. On the one hand she appears not to
accept any responsibility for her relationship with her daughter Ti¬ni. In
fact, she might serve as the Department™s strongest witness against Ti¬ni if
the case proceeds under a status offense [which focuses on Ti¬ni™s recalci-
trance] rather than under dependency [which focuses on the weaknesses of
Gail™s parenting skills]. However, her attorney must counsel her regarding
her refusal to accept any responsibility for Ti¬ni™s burns because the issue in
the dependency case will focus as much on her ability to reasonably parent
Ti¬ni as on her moral culpability in causing the burns. In addition, Gail
needs to be counseled regarding her almost ¬‚ippant desire to have Ti¬ni
placed almost anywhere except with her or with William. There is always
the possibility that the court could eventually sever her parental rights if the
court takes jurisdiction over Ti¬ni and if Gail continues to refuse to cooper-
ate with the family reuni¬cation plan. Gail™s attitude toward William™s caring
for Ti¬ni substantially increases the chances that the Department will go for-
ward with the hearing and place Ti¬ni with a nonrelative caretaker. Finally,
unless Gail agrees to participate in court-ordered counseling, it is unlikely
that the Department will ever reunite Ti¬ni and her, and it is likely that the
Department will argue that even their visits should be monitored by the
Department.

4. William Car.
William™s con¬dential instructions indicate that he would strongly resist
Ti¬ni™s desire for emancipation. Because emancipation requires the con-
sent of both parents, William holds veto power over this option. But what
if the Department during the negotiation rejects both Gail and William
as the proper custodial parent? Does William prefer that Ti¬ni be placed
with a foster parent or in the Department™s suggested group home, rather
than becoming emancipated, an option that would permit her to visit with
William at any time that they found mutually agreeable? Remember, William
is adamantly opposed to any state intervention.

5. The Department.
The Department is in the driver™s seat in this negotiation because it con-
trols the ambit of the petition and the direction that this litigation will take.
Will the Department focus on the weaknesses of the Car family structure in a
dependency proceeding or proceed under a status petition in treating Ti¬ni
238 Legal Ethics in Child Custody and Dependency Proceedings

as an uncontrollable teenager? The Department has signi¬cant leverage in
this case and may demand certain conditions from the parents in exchange
for dismissing the petition. First, the Department may require the parents to
agree to attend family counseling, something that Gail has so far been unwill-
ing to try. Eventually, if Gail refuses to follow court-ordered counseling, the
Department could seek to sever her parental rights. Is it ethically permissible
for the Department to threaten the removal of Ming if the mother, Gail,
refuses treatment? The attorney representing the Department must always
keep in mind that it is charged with representing the best interests of the
children and thus should not transform this negotiation into a bitter power
struggle for positional bargaining.
In re Car is a very realistic simulation because it weaves the highly emo-
tional family members™ interrelationships within the legal fabric of child
dependency law. Each of the possible negotiated family plans (placing Ti¬ni
with her father, in a group home, or with foster parents or freeing her to
live alone through emancipation) creates incentives and problems for each
family member. One of the serious issues that complicates the resolution is
Ming™s dependence upon Ti¬ni as one of her primary child caretakers. How
the parties and the Department will balance the seemingly con¬‚icting needs
of these two children within the obviously dysfunctional dynamic of the Car
family is an interesting legal dynamic replete with ethical issues.
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242 Other Authorities

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Lee, Blewett, The Constitutional Power of the Courts over Admission to the Bar, 13
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244 Other Authorities

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REPRESENTING CHILDREN: STANDARDS FOR ATTORNEYS AND GUARDIAN AD LITEM

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