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Overview of Fulton County Consent Decree in Kenny A. v. Perdue

Plaintiffs' sole claim against Defendant Fulton County alleged that Fulton 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. Fulton 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 (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:

  • The establishment of an office for the Fulton County Child Advocate Attorneys that is independent from the juvenile court and is a division of the Fulton County government, no later than January 31, 2006.
  • Initial staffing of the child advocate office with twelve full-time child advocate attorneys, two full-time investigators and three full-time support staff.
  • Adoption of performance standards (Guidelines for Fulton County Child Advocate Attorneys, Appendix A to the Consent Decree) for all child advocate attorneys employed or engaged to represent children in deprivation and termination of parental rights cases in Fulton County.
  • Completion of a comprehensive review of the workloads of Fulton County Child Advocate Attorneys by the Carl Vinson Institute of Government to decide how to appropriately measure the workloads of child advocate attorneys. The study will review case volume, types of cases and their levels of difficulty, the use of volunteer lawyers, attorney experience level, support staff, equipment, technology and other factors which will substantially affect the workload of the attorneys, and will recommend standards by which attorney caseloads should be measured. The results of this study will be incorporated into the consent decree, will be complied with within 180 days after the study is issued unless further time is needed or if a party objects to the findings, and will provide the basis for ongoing determinations of staffing requirements.
  • The appointment of Judge William Jones of Charlotte, North Carolina as an independent Accountability Agent. Judge Jones will issue public record reports at six-month intervals after the completion of the workload study. The reports will be filed with the Court and provided to the parties.
  • The consent decree will remain in effect until Fulton County has remained in substantial compliance with all provisions of the decree for a continuous eighteen month period beginning with the date on which Fulton County successfully complies with the workload standards incorporated in the decree.
  • All actions required under the consent decree are to be documented within the individual child advocate attorney case file of each class member on a timely and accurate basis.

Summary of the Guidelines:

The Guidelines described below were developed to: outline the role of Fulton County child advocate attorneys; promote guidelines for the adequate and effective representation of children; and ensure that child advocate attorneys are sufficiently trained and educated in the field of child representation. The Guidelines are not an exhaustive listing of the responsibilities of child advocate attorneys. Instead, they provide a framework that will assure adequate, effective and zealous legal representation for children involved in child abuse and neglect proceedings in Fulton County Juvenile Court.

Qualifications and Training

All Fulton County child advocate attorneys shall be active members in good standing with the State Bar of Georgia and shall receive a minimum of four hours of training each year in an area relating to the representation of children. All Child Advocate Attorneys will also receive and be familiar with the Fulton County Child Advocate Attorney Trial Notebook.

The Role of the Attorney

Fulton County child advocate attorneys represent the best interests of the child, while at the same time representing the child's expressed preferences. This model allows the child to explain what he or she believes is in his or her best interests. If the child advocate determines that the child's expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the lawyer's opinion of what would be in the child's interests), the child advocate attorney may request appointment of a separate guardian ad litem and continue to represent the child's expressed preference as the child's attorney, unless the child's position is prohibited by law or without any factual foundation.

Duties of the Attorney

Child advocate attorneys are expected to provide adequate and effective legal representation for children alleged to be abused or neglected. The attorneys' responsibilities consist of various obligations at the beginning of the case and throughout the proceedings, and include post dispositional representation. The work performance of each child advocate attorney will be evaluated annually pursuant to Fulton County's Personnel Regulations. The responsibilities listed below and the conflicts of interest section are direct excerpts from the Guidelines.

  1. Initial Case Responsibilities
    1. Determine the facts of the case by interviewing the child, family members, caseworker, CASA volunteers, and others as necessary and appropriate.
    2. Where appropriate and necessary to the case, obtain and review the court files and agency records of the child and any siblings; school records; medical records; social services records; psychiatric, psychological, and drug and alcohol records; law enforcement records; photographs; audio/videotapes and other physical evidence.
    3. Where appropriate and necessary to the case, contact the attorney(s) for the biological parents, and other persons who are respondents to the case.
    4. Where appropriate and necessary to the case, contact other individuals involved with the child such as school personnel, foster parents, neighbors, relatives, medical and mental health providers, family friends and any other potential witnesses or sources of information.
    5. Meet with, observe, and establish and maintain a relationship with the child. Assess the child's needs and wishes with regard to the representation and the issues in the case, and explain the proceedings to the child according to the child's ability to understand.
    6. Maintain available information concerning the child's location and contact information for the child and other necessary parties or witnesses readily accessible in the child's file. Take reasonable steps to ensure that the placement and contact information in the child advocate attorney's file is current.
    7. Conduct additional investigation as determined to be necessary and appropriate to the case, in the exercise of the child advocate attorney's professional judgment.
  2. Preparation for and Representation at Hearings
    1. Participate as an attorney at all hearings concerning the child.
    2. Make informed recommendations for specific and clear orders for evaluation, services, and treatment for the child and the child's family.
    3. File all necessary pleadings and papers.
    4. Ensure that relevant testimony and documentary and physical evidence is introduced to the court and, when necessary, subpoena witnesses.
    5. Monitor the implementation of court orders and determine whether services ordered by the court for the child or the child's family are being provided in a timely manner and are accomplishing their purpose. Where necessary and appropriate, take steps to ensure compliance.
    6. Promote a cooperative resolution of the matter.
    7. Consult with other persons knowledgeable about the child and the child's family to identify the child's interests, current and future placements that would be best for the child, and necessary services for the child.
    8. Where necessary and appropriate for legal representation, attend all meetings involving the child.
    9. When appropriate, collaborate with the CASA to provide the best possible representation for the child.
    10. Inform the court of the child's wishes.
    11. Adequately maintain case file.
    12. Explain to the child the disposition of his or her case.
  3. Post Dispositional Representation
    1. Inform the child of his or her right to appeal.
    2. Exercise child's right to appeal, if under the reasonable judgment of the attorney, an appeal is necessary.
    3. Where necessary and appropriate, represent the child's interests in an appeal filed by another party.
    4. Discuss the end of the legal representation with the child and determine what contacts, if any, the attorney and child will continue to have.

Conflicts of Interest

Child advocate attorneys should decline to represent children in conflict of interest situations, including in the following circumstances:

  1. The attorney, or other child advocate attorneys on staff in the Fulton Juvenile court, represents, or has represented, the biological parent in a deprivation proceeding.
  2. Children in a sibling group have conflicting accounts of facts material to the deprivation or TPR determination.
  3. Positions to be taken on behalf of children in a sibling group are mutually exclusive and conflict in a material way.

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, Fulton County has become one of only two counties in Georgia to have adopted performance standards for attorneys representing deprived children (the other is DeKalb County, which in its Kenny A consent decree, adopts performance standards). 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 Act Public Law 108-36 http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c108Fg8yAy::??.).
  • 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.