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Overview of DeKalb County Proposed Consent Decree in Kenny A. v. Perdue

Plaintiffs' sole claim against Defendant DeKalb County alleged that DeKalb County was providing ineffective assistance of counsel to abused and neglected children in all deprivation and termination of parental rights proceedings because the child advocate attorneys had too many cases. Child advocate attorneys are county-employed full-time attorneys who represent the best interests of children who are alleged to be abused and neglected. DeKalb County is the named defendant because the county is responsible for paying for legal representation for deprived children. Plaintiffs allege that the county failed to provide adequate funding to hire enough child advocate attorneys to effectively and zealously represent deprived children, and therefore, the caseloads of attorneys representing the children were too high for children to receive adequate and effective assistance of counsel.

The consent decree is crafted to address this complaint and to clarify what child advocate attorneys must do to provide effective assistance of counsel. The consent decree, approved by Judge Shoob on May 16, 2006, provides for the following:

  • Caseload limits of no more than 130 cases (defined as 'open file of each class member') for each child advocate attorney. This caseload limit shall be in effect by September 13, 2006 (120 days after entry of consent decree).

  • Increased number of full-time child advocate attorneys in DeKalb County. By September 13, 2006 (120 days after entry of consent decree), DeKalb County will employ nine full-time child advocate attorneys, not including the director of the Child Advocacy Center. By March 31, 2007, DeKalb County shall employ eleven full-time child advocate attorneys, not including the director of the Child Advocacy Center.

  • Enumerated responsibilities of child advocate attorneys that are detailed in the consent decree.

  • The appointment of Karen Baynes, Deputy Director for the Carl Vinson Institute of Government at the University of Georgia as an independent Compliance Agent. Ms. Baynes will issue an initial compliance report by October 13, 2006 that addresses only caseloads and staffing. Thereafter, she will issue compliance reports not later than 90 days following the end of each reporting period. The reports will be provided to counsel for plaintiffs and defendants, who will then file the reports with the Court within seven days of receipt.

  • The consent decree will remain in effect until DeKalb County has remained in substantial compliance with two provisions of the decree for a continuous eighteen month period. The two provisions are Section 5, 'Caseload Obligation' and Section 7 'Responsibilities of Child Advocate Attorneys.'

Summary of Section 7, Responsibilities of Child Advocate Attorneys

Child Advocate Attorneys, in each instance of representing a Class Member, shall have the following responsibilities:
1) To prepare for, attend and participate in all court-ordered, judicial hearings and proceedings; to stay as reasonably informed as possible of the existence and outcome of non-judicial reviews, meetings and conferences; and to attend non-judicial reviews, meetings, and conferences when necessary.
2) To prepare and file motions and responses to motions.
3) To be aware of and resolve potential and actual professional conflicts of interest.
4) To investigate matters relevant to judicial proceedings, including engaging in the formal and informal discovery process.
5) To establish and maintain an attorney-client relationship with each Class Member client and to maintain such contacts with the client as are necessary to ensure adequate and effective legal representation.
6) To maintain contacts with social workers, service providers and family members.
7) To monitor the implementation of Juvenile Court orders relating to the child, to raise issues of non-compliance, and to advocate the child's best interests with the Court and other judicial decision-makers.
8) To participate in settlement negotiations as necessary.
9) To prepare, file and participate in appeals affecting the legal interests of clients.

Summary of the Performance Standards:

The Performance Standards described below were developed to provide DeKalb County child advocate attorneys with a general guide to appropriate and zealous advocacy on behalf of clients in juvenile court child abuse and neglect proceedings.

Obligations and Role of the Attorney

DeKalb County child advocate attorneys have a primary and fundamental obligation to provide zealous and effective representation to promote and protect their child clients' best interests. The basic obligations of the attorneys include:

  1. Obtain copies of all pleadings, reports, motions, and other court filings.

  2. Inform other parties and their counsel that the attorney represents the child and expects reasonable notice of any changes in court dates, placement of child, etc. At all times know the placement location and contact information for the client.

  3. Attend all court appearances.

  4. Participate in settlement negotiations and otherwise attempt to expedite the court process.

The attorney's client is the child and the attorney's principal duty is to represent the child's best interest.

The performance standards describe the child advocate attorney's duties regarding counsel's relationship with the client, investigation and discovery, adjudicatory hearings, disposition hearings, and appeals.

Training and Experience

Child advocate attorneys should be proficient in applicable substantive and procedural Georgia law and should have appropriate experience, skills and training necessary to represent children, including at least twenty hours of court observation prior to accepting cases. In addition, case loads must be appropriate to allow counsel to satisfactorily meet the performance standards.

Attorney-Client Relationship

Attorneys are to meet with child clients, irrespective of age, prior to court hearings and at other key times in the representation. Attorneys are to explain, in a developmentally appropriate manner, the role of the attorney, the process and proceedings, and other information related to the representation and the child's case. All attorney client privileges and obligations attach, except with regard to issues of confidentiality that may arise due to the dual role of attorney and guardian ad litem. In all situations, the child should be fully informed about the extent to which communications will be kept confidential.

The attorney should always advocate that the child be placed in the most appropriate, least restrictive environment consistent with the child's needs. The attorney should attempt to resolve any instances of non-compliance with the court's order and should provide all possible assistance in obtaining services needed by the child and the child's family.

The attorney continues to represent the child so long as the Juvenile Court retains jurisdiction in the case. The attorney should discuss the end of the legal representation with the child, and determine what contacts, if any, they will continue to have.

Conflicts

At a minimum, the child advocate attorneys should decline to represent children in the following circumstances:

  • Any attorney in the child advocate office represents, or has represented, the respondent parent or guardian.

  • Children in a sibling group have conflicting accounts of facts material to the case determination.

  • Positions to be taken on behalf of children in a sibling group are mutually exclusive and conflict in a material way.

When a potential or actual conflict arises, attorneys should take appropriate actions, as defined in the standards.

Source of information:

Kenny A. v. Perdue et. al., No. 1:02-cv-1686-MHS (N.D. Ga. May 16, 2006) (Order for Final Approval of Consent Decrees).

The order, consent decree, and appendices can be viewed at http://www.childwelfare.net/activities/kennya/.

With the approval of this order, DeKalb County has become one of only two counties in Georgia to have adopted performance standards for attorneys representing deprived children (the other is Fulton County, which in its Kenny A consent decree, adopts performance guidelines). In contrast, statewide standards for attorneys representing children accused of delinquent offenses were adopted by the Georgia Public Defender Standards Council in December 2004. (See http://www.gpdsc.com/cpdsystem-standards-juvenile_cases.pdf). Although neither individual counties nor the state of Georgia has established mandatory standards of representation for attorneys representing abused and neglected children, Georgia does have aspirational guidelines and some training requirements. The list below describes what has occurred in Georgia as well as related efforts of some national organizations.

Child Abuse and Neglect Attorney Guidelines and Certifications

  • In 2005 Georgia enacted HB 212, which requires children's representatives to have appropriate training before they can represent deprived children (see http://www.legis.ga.gov/legis/2005_06//versions/hb212_HB_212_AP_11.htm). This was the first such requirement in the state and was enacted to bring Georgia in compliance with 2003 amendments to the Child Abuse Prevention and Treatment Act (see Keeping Children and Families Safe ActPublic Law 108-36).

  • Since March of 2000 Georgia has had Aspirational Guidelines for Attorney Guardians Ad Litem in Child Deprivation Cases to assist attorney GALs throughout Georgia in improving the quality of their representation in juvenile court, which will ultimately lead to better outcomes for children and families in the child welfare system. (See http://www.childwelfare.net/mrb/projects/gal_guide.html). These Guidelines were developed in partnership with the American Bar Association Center for Children and the Law and the Georgia Supreme Court Child Placement Project.

  • Georgia also has a reference manual for Attorney and Volunteer Guardians Ad Litem designed to provide GALs with an in-depth understanding of Georgia deprivation law and juvenile court procedures. (See http://www.childwelfare.net/resources/JuvenileCourtRefManuals/200405/GAL_Manual1.html). This reference manual was first developed in 1997 and was most recently updated in 2004.

  • In 1996, the American Bar Association adopted Standard of Practice for Attorneys Representing Children in Abuse and Neglect Cases. (See http://www.abanet.org/child/childrep.html).

  • The National Association of Counsel for Children has produced the NACC Recommendations for Representation of Children in Abuse and Neglect Cases, a document designed to assist jurisdictions in the selection and implementation of a model of child representation. Rather than urging jurisdictions to choose a particular model, this document sets out a checklist of children's needs that should be met by whatever representation scheme is chosen. (See http://naccchildlaw.org/documents/naccrecommendations.doc)

  • The National Association of Counsel for Children revised the ABA Standards to provide an alternate representation scheme in certain circumstances, particularly where very young children are concerned. (See ABA / NACC Revised Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases).

  • The National Association of Counsel for Children has developed a children's attorney certification process that is sponsored by the U.S. Department of Health and Human Services and has been accredited by the American Bar Association. Attorneys who serve in the role of Child's Attorney (including Guardian ad Litem, Law Guardian, Attorney ad Litem), Parent's Attorney, and Agency/ Department/Government Attorney can be designated as specialists in this area after completing a rigorous certification process including peer review, a written exam, and evaluation of a writing sample. The specialization area as approved by the ABA is specifically defined as "the practice of law representing children, parents or the government in all child protection proceedings including emergency, temporary custody, adjudication, disposition, foster care, permanency planning, termination, guardianship, and adoption. Child Welfare Law does not include representation in private child custody and adoption disputes where the state is not a party."