March 09, 2001
A Report by Philadelphia's Public Interest Bar and Advocacy Community on Dependent Court Resources and the Need for Judges
February 22, 2001
TABLE OF CONTENTS
BACKGROUND ON CURRENT DEPENDENT COURT OPERATIONS
- Courtrooms Closed
- "Empty Chair" Syndrome
- Masters Misused
- High Caseloads and Long Lists
- Different Judge, Different Day
- Low Fees, Poor Service
- ASFA Compliance
RESULTS FOR CHILDREN & FAMILIES
VISION FOR REFORM
- Judges and Masters
- Fewer Cases and New Courtrooms
- Adequate Fees, Reasonable Caseloads, Competent Service
- Accountability in the Court Process
APPENDIX A: Proposed Amendments To Local Rules
Introduction: Philadelphia's Dependent Courts have among the highest case loads in the country. These cases deal with the profoundly important business of child welfare: the protection and well-being of abused and neglected children and their families. Unfortunately, the judges, lawyers and litigants involved in dependency cases are not accorded the respect or resources that they deserve and require. Consequently the system is failing many of the people it seeks to serve.
This paper discusses the needs of the Dependency Branch of Philadelphia's Family Court system and outlines a vision for reform focused on utilizing present resources more efficiently as well as significantly increasing resources. This vision is guided by the conviction that dependency proceedings should bear the same markings of due process that our justice system requires of all other court proceedings.
Overview of the Problem: On any given day, dependency courtrooms are closed because no judge or master is available. Entire lists of cases are postponed without notice or heard without a stenographer present to record the proceedings. The principle of "One Judge, One Family" is often violated. Some Dependent Court hearings are conducted without the judge on the bench. As a result of these problems, the lives of children and families are mired in delay, uncertainty, and the administrative bureaucracy of the justice system. Federal funding is jeopardized, economic and emotional costs run high, and the confidence of the community in the authority and wisdom of the Court process is eroded.
The main reason for these problems is the lack of available judges: only eight permanent judges staff 12 dependent, delinquent and adult criminal child abuse courtrooms. These problems have been exacerbated recently because of new time constraints and fiscal controls imposed by The Federal Adoption and Safe Families Act of 1997. A system that was already overburdened is now completely overwhelmed.
For almost a decade, the advocacy community and bar have been citing another major problem in Dependent Court cases: the inadequacy of fees for private lawyers appointed to represent children and families. This report demonstrates how drastically low fees and consequently compromised representation combine with deficits in judgeships and judicial resources to create a parade of substantive and procedural concerns.
Vision for Reform: Additional judges, masters and courtrooms are needed in Family Court to ensure complete and timely hearings, to achieve the "One Judge, One Family" approach in all cases, and to replicate the successful "Model Court" reforms (e.g., time-certain hearings and meetings, and social service resources) throughout Philadelphia's child welfare system. Moreover, masters should be better utilized so that they have the ability to preside over record proceedings and the power to make meaningful decisions. Neither the bar nor the judiciary would tolerate substantial delays, inadequate lawyer practice, and questionable satisfaction of due process protections in any other area of practice. Dependency proceedings, which have profound effects on the lives of children and families, should not be treated any differently.
Conclusion: The Court that cares for our abused and neglected children has itself been neglected for too long. Court, bar and city leaders must ensure that our Dependent Court advances the best interests of the children committed to its care.
A REPORT OF THE PUBLIC INTEREST BAR AND ADVOCACY COMMUNITY ON DEPENDENT COURT RESOURCES AND THE NEED FOR JUDGES
February 22, 2001
The Family Court of Philadelphia is the division of the First Judicial District of Pennsylvania charged with the administration of domestic relations (divorce, custody, child support, domestic violence) and other children's cases (delinquency, dependency, truancy and adoption cases). Family Court is the forum in which major and final decisions affecting the futures of children are made: where children will live, who will raise them and support them, who will protect them from abuse and neglect. The Dependency Branch, which is the subject of this paper, handles cases of children who are abused, abandoned, neglected, truant or ungovernable.
Dependency cases can be contentious, emotional and profoundly influential. Indeed, the mission of child welfare dependency proceedings is among the most significant accorded our courts: the protection and well-being of children and their families. Embedded in our laws and practices are numerous procedural constraints and fiscal incentives to ensure proper service of this mission. The recent enactment of the federal Adoption and Safe Families Act of 1997, or ASFA (see footnote 1), has imposed serious time constraints requiring the Court to make speedy decisions regarding the permanent placement of children, which frequently requires the involuntary termination of parental rights.
In spite of the magnitude of the issues before this Court, and despite the fact that many judges have requested and faithfully dedicated themselves to this assignment over the years, the judges, lawyers and litigants are not accorded the respect that they and the issues they bring to the Court deserve. Nor are the resources that are needed for the proper administration of justice available to this Court. Thousands of families appear before the Philadelphia Family Court each year, and the system fails many of them.
The signatories to this document include members of public interest bar and the child advocacy and court reform communities. We have worked closely with each other and the Court in many effective reform efforts over the years. As partners in this system of advocacy and care, we have seen and participated in compromises which have been set up or even forced by the problems we are now revealing. It is time for our shared, collective neglect to end.
This paper focuses on the needs of the Dependency Branch of Family Court and calls for significant increases in resources to this Branch. It is critical, however, that the increase in resources be accomplished by allocating additional resources to the Court, and not by shifting existing resources from the Domestic Relations Branch or other juvenile proceedings.
BACKGROUND ON CURRENT DEPENDENT COURT OPERATIONS
Court administration currently relies on only eight permanent judges to staff at least 12 dependent, delinquent and adult criminal child abuse courtrooms at 1801 Vine Street. The Dependent Courtrooms are designated E, G, H and I, with M as the first Model Court and L as the newly opened second Model Court. The other Juvenile Courtrooms are A, B, C, D, F and K. Three senior judges are assigned to cover specific days, individual cases and even entire courtroom lists.
The Dependent Courts adjudicate matters of "child welfare," i.e., child abuse and neglect. Cases generally involve in-home supervision and family services, out-of-home placement of children in foster care or congregate-care settings, and placement with relatives or adoptive parents. By statute, all parties are entitled to counsel. These courts receive in excess of 4,000 petitions per year, including more than 3,000 new cases, and more than 10,000 children are actively involved in these proceedings annually (see footnote 2). State and federal laws set forth the minimum schedule of hearings, including an adjudicatory hearing within 10 days of a child's removal from parents and permanency review hearings at least every six months until final disposition.
Under the federally-sponsored Court Improvement Project, the Family Court of Philadelphia has implemented an innovative process for change. Following a comprehensive assessment of then-current practices, and guided by a hard-working advisory committee, the Court created a laboratory-like setting to design and evaluate new approaches. Unlike traditional dependency courtrooms in Philadelphia, "Model Court" features time-certain hearings and pre-hearing meetings, dedicated facilities, and access to mediation and assessment services. The first Model Court began hearing cases in November 1998 and the second Model Court opened in July 2000; the prior Court administration of former Administrative Judge Paul P. Panepinto planned to open one additional Model Court in early 2001, with fourth additional court to follow. Recently, the Court also created the Accelerated Adoption Review Court (AARC) to track and review cases in process towards adoption. In addition, two new specialized review courts are expected to be opened for cases with certain permanent planned living arrangements: the Kinship Care Court (i.e., for placement and legal custody or supervision with relatives) and the Alternative Planned Living Arrangement Court (APLA)(i.e., for long-term cases in which neither family reunification nor adoption is likely). It is anticipated that masters will preside over AARC, APLA Court and the Kinship Care Court.
These reforms have the support of Family Court Administration and have been enforced through federal litigation. The Court Improvement Project was created in 1997 under the first administration of the Honorable Esther R. Sylvester, who was recently reassigned as Administrative Judge of Family Court. The Model Court Program was also strongly supported and effectively advanced by former Administrative Judge Panepinto. In November, 2000, the Court defendants in the Baby Neal litigation agreed to extend the jurisdiction of the federal court for two additional years while they fully implement the reforms of Model Court in all dependency proceedings (see footnote 3).
The important and often challenging work of Philadelphia's Dependent Court is compromised by the insufficient number of judges assigned to this Court and the inadequate resources invested in its operation. Cases are delayed, families and attorneys wait through long days of crowded dockets, and some cases are adjudicated without a judicial officer or stenographer present. Many judges are reportedly unhappy to accept assignments in the Family Court, and traditionally, here and around the country, family-related court matters are relegated to a second-class status. This Report focuses primarily on dependency courtrooms, but similar problems exist in the delinquency courtrooms (see footnote 4). Philadelphia's Family Court system needs more judicial appointments to serve cases involving dependent children and their parents, as well as the increasing numbers of children who are subject to juvenile justice interventions.
Courtrooms Closed: On any given day, dependency courtrooms are closed or their start delayed because no judge or master is available. For example, in the three-month period October to December, 2000, with 28 courtroom days per week typically available for dependency hearings, as few as 17 courtroom days were active some weeks, and judges were scheduled to preside as few as 14 days. Litigants frequently are unable to obtain timely review of contested issues by a judge. Entire lists of cases are postponed because of the lack of a judge, without notice to the parties. In addition, the start of court is occasionally delayed on a given day due to a lack of Court support staff, whether stenographer or clerical personnel. Without judges and other staff, litigants are denied final decisions, cases do not move forward, and agreed-upon outcomes, including voluntary relinquishment of parental rights, are painfully delayed. In some cases, even with a judge or master presiding, stenographic recordings are not made.
"Empty Chair" Syndrome: According to a recent study, and confirmed by many accounts, some Dependent Court hearings are actually conducted without the judge or master on the bench and with only the DHS liaison, counsel for some -- but not all -- of the parties, and courtroom staff present (see footnote 5). Hearings before masters lack the authority of the bench and a mechanism for judicial approval. Whether the chair is occupied or vacant, attorneys report that many listings feel like a waste of time.
With too few courtrooms and judges, cases are either crowded into already-large dockets on open days, causing foreshortened hearings and pressures to compromise rights and needs, or they are given exceedingly extended dates for review. "Next Court Dates" for contested cases are presently as long as six months. Occasionally, despite the scheduling of cases months in advance, no judge is present for hearings in goal change/termination of parental rights cases or return-home decisions -- and the matter is continued again. For example, in September, 2000, "I" Court had a particularly large docket, and a master was assigned to this bench on all Tuesdays through Fridays. To make matters worse, no judge was available as scheduled on any Monday that month. Consequently, "I" Court had no judge for the entire month, causing innumerable continuances.
Masters Misused: Masters assigned as substitutes for the judge serve without a clear protocol of powers and duties, and without a set schedule of assignment. Because parties cannot foresee the nature of the hearing, they cannot know what rulings or remedies will be possible. Some attorneys have taken to declining to litigate at all before the masters. Masters proceedings are seen by many as non-contest or even non-record hearings, and so even with the bench occupied, full statutory review is not accomplished.
High Caseloads and Long Lists: The grave problems of insufficient judicial resources and delays in case processing are compounded by unusually high caseloads. Courtrooms may be scheduled for the cases of 50 to 75 children, representing in excess of 30 families on any given day. According to the National Center for Juvenile Justice, Philadelphia's Dependent Courts have among the highest daily dependency workloads in the country (see footnote 6). As a result, the courts are under extreme pressure to afford only short, perfunctory review of important issues or to delay adjudication of contested issues for extraordinarily long periods.
For example, in a contested case involving goal change/termination of parental rights, which was listed and ready for trial in November 2000, the parties agreed that at least four hours of docket time would be needed for witness examination and introduction of other evidence. The date had been specifically selected at a prior listing some months earlier, and numerous witnesses and lawyers were present. Yet despite a full morning of hearings to dispose of other matters, by two o'clock in the afternoon the Court still had 16 other families waiting for their cases to be heard. The contested litigation was then put off for more than six months due to inadequate time on the particular Court's calendar.
Different Judge, Different Day: For many years the Dependency Branch has provided the same judge to a case, from listing to listing throughout its docket history. This "One Judge, One Family" model of judicial assignment and case scheduling allows for continuity in the handling of a case as well as efficiency in court management. Judges remember their own orders and the complex background of cases. Family members gain the comfort of relationship with personnel involved in their lives.
In recent years, however, some courtrooms have been administered by a changing slate of judges and masters, without any apparent continuity. Continuity and efficiency are compromised when judges and masters are shuffled to fill daily vacancies. There is also little or no accountability for lawyers who fail to appear or for non-compliance with laws or the Court's directives, problems seen with increasing frequency. The principle of "One Judge, One Family," which should be a touchstone of all judicial assignments and case scheduling, is now frequently violated.
Senior judges are used extensively for both regular and intermittent scheduling, allowing more courtrooms to be open for full lists of cases. While their rich experience is an asset to our community, especially in this most challenging area of practice, lack of continuity in assignments limits their effectiveness.
Low Fees, Poor Service: Most of the parents and many of the children who are subject to dependency proceedings are represented by court-appointed private counsel. Like many locales, these services are provided in Philadelphia by a cadre of attorneys who come forward voluntarily to accept appointments. Also like other cities, and despite the best efforts of many committed practitioners who zealously perform this work, the rates of compensation and size of attorney caseloads in Philadelphia have left a generation of children and their parents with often inadequate assistance of counsel in some of the most important events of their troubled lives (see footnote 7).
Since at least 1994, the organized bar has been working with the Court to improve the rates of compensation for court-appointed private counsel. Prior to 1997, these attorneys were paid the sums of $40 per hour for out-of-court service and $50 per hour for in-court service (see footnote 8); fees were unofficially capped at $700 per case, and fee petitions were routinely reduced by judges or administrators who processed the applications. Although a joint bench-bar committee met extensively in the mid-1990s to address the fee crisis in both dependent and criminal appointments, the Dependent Court fees remained problematic. In 1997, the Administrative Governing Board of the First Judicial District implemented a Fee System for the compensation of counsel in dependency cases which provides $300 per appointment for the first year of proceedings and $150 for disposition subsequent to first year -- without regard to the issues involved, time actually required in a case, number of years a case is open or number of siblings to be represented under the appointment. Addressing this new formula, the Board of Governors of the Philadelphia Bar Association found that the proposal "fail[ed] to provide sufficient funds to provide adequate representation in such cases." (see footnote 9)
As set forth in a 1997 Report to the Bar Association, and as demonstrated by years of practice in thousands of cases, the Guaranteed Fee System for dependency cases presents a real threat to the safety of children and the preservation of families in Philadelphia. Any system that unrealistically limits the amount of work by advocates on behalf of children and parents damages the protection afforded these people. With the risks posed to both children and parents by inadequately prepared and compensated counsel, the current flat fee system does little more than ask counsel to show up in court. It provides for little or no client contact or preparation. It does not recognize that cases are often extremely delicate and complex. It does not acknowledge that many of these cases become more demanding the longer they are in the system.
ASFA Compliance: Scheduling and resource problems at Dependent Court have become more complex due to recent changes in federal law under the Adoption and Safe Families Act (ASFA) (see footnote 10), which require judicial findings on the safety of each child, notification of a caregiver's right to be heard, determination of reasonable efforts to return a child home, mandated termination of parental rights filings and hearings, and completion of an extensive court order. Federal child welfare authorities will audit local county children and youth agencies (C&Y, or DHS in Philadelphia) for their compliance with the law, and federal C&Y funding is contingent on compliance. While adding new requirements to the Dependent Court process, implementation of ASFA has also revealed many of the Court's longstanding structural and resource deficits.
RESULTS FOR CHILDREN & FAMILIES
Children and their families -- and, in the long run, society as a whole -- bear the burden of Family Court's deficit of judges and other resources. We note some of the troubling effects:
- children not getting the prompt decisions they need;
- insufficient time for scheduled cases to be heard, with both implied and explicit pressures from other parties, their lawyers, judges and Court staff to accept the unacceptable and to make hasty decisions in complex matters requiring thoughtful and careful review;
- lack of accountability for inadequate practices and meaningless proceedings in front of the "empty chair" of a courtroom without a judge present;
- continuances and "short" dates contributing to a constantly clogged calendar, with insufficient notice of schedule changes to family members and unrepresented parties;
- contested cases spread over months or even years, despite the litigation being ready for disposition, frustrating attempts at resolution and disrupting the coherent administration of justice;
- children remaining in foster care for months or years beyond their need, separated from parents who in many cases are able to care for them, or denied the permanency of new adoptive families;
- economic and emotional burdens on all who are involved, from caseworkers who are working hard for appropriate resolutions, to parents and children who are separated from each other, to parties and witnesses who have taken off from work for hearings that do not occur, to children who continue to suffer from instability and a lack of a permanent home;
- jeopardized federal funding for non-compliance with laws and regulations; and
- a citizenry with eroded confidence in the authority and wisdom of the Court process.
VISION FOR REFORM
Judges and Masters: The Pennsylvania General Assembly must create and fund sufficient judgeships, and the Supreme Court and the First Judicial District must assign more judges to the Juvenile Division and, specifically, the Dependency Branch of Philadelphia's Family Court. More judges are necessary to ensure complete and timely hearings and decisions, to achieve the "One Judge, One Family" approach in all cases, and to replicate the reforms of Model Court throughout Philadelphia's child welfare courts. Even with the new alternative courts and other reforms (and depending on how widely masters are used), the Juvenile Division needs at least three additional judgeships.
While most experts would prefer child abuse and neglect cases to be heard by a judge, it is widely recognized that judge-supervised judicial officers, or masters, can be effectively utilized to administer cases and even adjudicate some issues. Their role is contemplated by Pennsylvania's Juvenile Act (see footnote 11). Masters currently preside over AARC and the truancy courts, and a draft Model Court protocol addresses the role of masters in some types of hearings. The coherent, organized use of masters can help to alleviate docket burdens while reserving valuable judge-time for issues requiring the authority and attention of a judge.
The subordinate judiciary (i.e., masters, hearing officers, magistrates, etc.) has been used most effectively elsewhere in the nation in family court matters when teamed consistently with one judge or court unit. We urge that masters be assigned in Dependent Court in a manner consistent with "One Judge, One Family" and that they serve only under a clearly defined protocol of powers and duties, presiding over record proceedings and empowered to make meaningful decisions on key issues. All the jurists should be trained and experienced in child welfare law and services.
Fewer Cases and New Courtrooms: A laboratory for reform, Model Court has been functioning for almost three years, allowing participants the opportunity to test new approaches without the pressures of large dockets, architectural impediments or resistance to change. As noted, the Court has committed itself to institute the lessons of Model Court throughout the Dependent Court system, a laudable and worthwhile goal. The Model Court protocol requires a judge to preside over thirty-minute hearings, listed at time-certain intervals, for a maximum of twelve families per day. Today, only a fraction of all judicial hearings are conducted under the Model Court protocol. The importation of these procedural reforms and ASFA compliance regimes into the current courtrooms will necessarily work to reduce the numbers of cases that each courtroom can process. Without additional judges and masters, and new courtrooms to accommodate cases, this valuable reform will be jeopardized. Courtrooms handling delinquency cases and cases involving adult offenders and child victims also require consistent and expanded judicial assignments by Family Court administration. (see footnote 12)
We note that when new courtrooms open, the Office of the City Solicitor and the Defender Association Child Advocacy Unit each will require two additional attorneys per courtroom added, as well as additional Court staffing and parents' counsel. These costs have historically delayed the opening of new courtrooms, and so we urge that resources be budgeted or pursued from funding sources such as the Commonwealth to adequately support each new courtroom that is created and each currently operational courtroom to which reforms are introduced.
Adequate Fees, Reasonable Caseloads, Competent Service: The Court and organized bar should be concerned with three dimensions of the issue of court-appointed counsel, that is, the appointment process, the standard of practice that is expected of lawyers involved in these cases, and the compensation paid for services rendered. These three dimensions are inextricably connected and should be approached in an integrated fashion. The Court and bar cannot demand quality service from attorneys while compensating them at rates or allowing caseloads that prohibit such practice.
We remain committed to the vision set forth by the Bar Association in 1997, that the court-appointed counsel system should: (a). set caseload limits not to exceed 110 cases per lawyer; (b). assign lawyers and makes appointments on a fair, impartial and sequential basis; and (c). compensate attorneys for representation services throughout the term of appointment, at levels which reflect the numbers of sibling children involved in and the complexity of the case, and includes both in-court service and out-of-court preparation, participation in case reviews and post-dispositional hearings and involvement in appeals. (see footnote 13)
Accountability in the Court Process: Accountability must be restored to dependency proceedings. According to the National Council of Juvenile and Family Court Judges, judicial oversight of attorney practice is a key component of effective representation. Our system needs to impose consequences for unacceptable conduct such as failing to appear for hearings or to maintain contact with clients. There can be no denying that the quality of representation must improve for children and families in Dependent Court.
In 1999, the General Assembly enacted Act 18, an amendment to the Juvenile Act which established new practice requirements for lawyers representing children as guardians ad litem, including extensive pre-trial investigation, courtroom practice and client contact (see footnote 14). Locally, following the Bar Association's recommendations in 1997, a joint bench-bar committee developed a set of standards for the training, appointment and practice of all lawyers in Philadelphia's dependency proceedings. See Appendix A. The standards address: appearance at, preparation for and participation in all court hearings and conferences; attendance by the attorney (or a qualified representative) at Family Service Plan meetings and other service planning sessions; and fieldwork for investigations, client interviews and service provider contacts. We note that a "best practice" approach would dictate a far more expansive list of activities and services to be provided by counsel. The Board of Judges should adopt these standards as Local Rules of Court, and individual judges and masters must be encouraged to enforce all of the laws and rules that govern the court process.
Dependency proceedings should bear all the due process markings of other court proceedings, including timely notice to all parties, stenographic or audio recording of all proceedings with transcripts available upon reasonable request, sanctions for non-compliance with Court orders, and the fullness of presentation, witness examination and attorney advocacy. Recognizing that delays generally are harmful to the parties and their interests, individual contests should be scheduled for completion over days or weeks, rather than in intermittent hearing days spread over months. Notices of rescheduled hearings should be sent to all parties and their attorneys. We note that neither the bar nor the judiciary would tolerate inadequate lawyer practice, non-record proceedings and questionable satisfaction of due process protections in any other area of practice. Dependency proceedings, which have profound effects on the lives of children and families, should not be treated any differently.
The undersigned members of the public interest bar and advocacy communities present this report to the Philadelphia legal community with several goals:
- to demonstrate the impact of Family Court on families' lives
- to highlight the important role of the judge in child welfare cases;
- to illuminate some troubling and longstanding problems, acknowledging our own contributions to and even complicity in them;
- to educate the entire community about the needs of the Family Court system and thus promote advocacy and political will for change; and
- to make specific recommendations for reform.
We hope to engage the other stakeholders of the Court, including the City of Philadelphia, the Supreme Court, the General Assembly and Office of the Governor, the entire Philadelphia judiciary, as well as ourselves and our colleagues in the bar.
Finally, we wish to highlight the key role of the judiciary in the leadership for reform. Family Court administration has been receptive to dialogue and the initiator of much positive change. We commend the Court and hope it continues to be the leader of its own improvement. We recognize the enormous personal commitment of many judges and masters both in the justice system and in the lives of the children and families who come before them.
The Court that cares for our abused and neglected children has itself been neglected for too long. Compassion, creativity and vision must be brought forward with urgency and resolve. All leaders must take responsibility to ensure that our Dependent Court ensures and advances the best interests of the children committed to its care.
AIDS LAW PROJECT OF PENNSYLVANIA
Ronda B. Goldfein, Executive Director
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
Stefan Presser, Legal Director
COMMUNITY LEGAL SERVICES, INC.
Catherine C. Carr, Executive Director
Peter Schneider, Managing Attorney (acting)
Family Advocacy Unit
DEFENDER ASSOCIATION OF PHILADELPHIA
Ellen C. Greenlee, Public Defender
William W. Norvell, Chief, Child Advocacy Unit
JUVENILE LAW CENTER
Robert G. Schwartz, Executive Director
PENNSYLVANIANS FOR MODERN COURTS
Lynn A. Marks, Executive Director
PHILADELPHIA CITIZENS FOR CHILDREN & YOUTH
Shelly Yanoff, Executive Director
PHILADELPHIA LEGAL ASSISTANCE
Anita Santos, Executive Director
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA
Michael Churchill, Chief Counsel
SUPPORT CENTER FOR CHILD ADVOCATES
Frank P. Cervone, Executive Director
WOMEN AGAINST ABUSE, INC.
Nichelle A. Mitchem, Executive Director
Patricia A. Dubin, Legal Center Director
WOMEN'S LAW PROJECT
Carol E. Tracy, Executive Director
Appendix A: [PROPOSED AMENDMENTS TO LOCAL RULES]
Training for Lawyers Seeking Appointment to the Dependent Court List after [date]
A lawyer seeking to receive appointments in dependency proceedings shall complete one (1) introductory training of not less than six (6) hours in the field of dependency law and practice, and one (1) Courtroom Observation Program of not less than three hours. In addition, each year lawyers must complete not less than three (3) hours of Continuing Legal Education in the field of dependency law and practice, or related topics in order to maintain their eligibility to receive appointments.
Eligibility of Lawyers for Dependent Court List
A. List of Qualified Lawyers
The Supervisor of Dependent Court Operations will maintain a list of lawyers who are qualified for appointment in dependency cases.
B. Selection of Lawyers
Each lawyer who desires appointment in dependent cases must complete and submit to the office of the Administrative Judge of Family Court (hereinafter "OAJFC"):
- A questionnaire; and
- A certification that the lawyer has completed his or her required training.
The OAJFC will periodically, and not less than four (4) times per year, review all questionnaires and certifications submitted and will designate to the Supervisor of Dependent Court Operations those lawyers who are qualified to receive appointments.
C. Rotation of Appointments
- Appointments shall ordinarily be made by the Supervisor of Dependent Court Operations, on a fair and equitable basis among lawyers who meet the qualifications set forth herein.
- The list of eligible lawyers will be updated regularly by the OAJFC and forwarded to the judges assigned to Dependent Court cases.
D. Standards for the Appointment of Counsel in Dependency Cases
A lawyer may be appointed counsel only if that lawyer:
- has been admitted to the bar of the Pennsylvania Supreme Court;
- has completed at least one (1) introductory training of not less than six hours in the field of dependency law and practice, and one (1) Courtroom Observation Program of not less than three (3) hours, which is certified by the judge observed;
- has within the last year completed at least one (1) Continuing Legal Education program of not less than three (3) hours in the field of dependency law and practice, or related topics;
- is familiar with the Pennsylvania Juvenile Act, the Philadelphia Court of Common Pleas Juvenile Court Rules, and other relevant law and regulations;
- is reasonably available to accept appointment and maintain representation until discharged by the Court; and
- is approved by the Office of the Administrative Judge of Family Court.
E. Lawyer Sanctions
- In an individual proceeding, any party to a proceeding may request that the Trial Judge remove a lawyer from that case where the lawyer fails to substantially comply with the requirements of the rules herein or with the Rules of Professional Conduct. If the Trial Judge determines that the removal of the lawyer is warranted, the Judge shall forward such determination and the reasons therefor, in writing, to the OAJFC, and shall immediately appoint new counsel.
- The Supervisor of Dependent Court Operations will identify to the OAJFC any lawyer who, though qualified, consistently refuses to accept appointments.
- The Supervisor of Dependent Court Operations shall receive and forward immediately to the OAJFC complaints regarding Court appointed counsel. The OAJFC shall review and investigate, or assign a person or persons to review and investigate all complaints received. Complaints shall be investigated and disposed of (i.e., dismissal or appropriate sanctions of the lawyer) within thirty (30) days of receipt of the complaint.
- The Administrative Judge of Family Court reserves the right to suspend or remove for cause any lawyer from the list of eligible lawyers.
Practice in Dependent Court Proceedings
All lawyers representing parties in Dependent Court proceedings shall have the following powers and duties, except where otherwise limited by law or rule of Court:
A. The lawyer shall review and be given timely access to relevant Court records; reports relevant to the case; reports of examination of the parents or other custodian of the child made pursuant to the proceeding; and medical, psychological and school records as permitted by law.
B. The lawyer shall attend all Court hearings and reviews, and in person or by representative, participate in telephone conferences and attend Family Service Plan (FSP) meetings regarding the client's case.
C. The lawyer or lawyer's representative shall meet with the client as soon as possible following appointment, and thereafter on a regular basis.
D. The lawyer shall notify other parties and representatives of the appointment and commence zealous advocacy on behalf of the client immediately upon receipt of the appointment..
E. The lawyer shall interview potential witnesses, review relevant documents, and conduct such further independent investigation as may be necessary to ascertain the facts of the case.
F. The lawyer shall serve appropriate subpoenas, prepare appropriate exhibits, obtain relevant and appropriate expert opinions when indicated, and conduct such further preparation for trial as may be necessary to protect the client's interests.
G. The lawyer shall examine and cross-examine witnesses and present evidence, request the Court to enter clear and specific orders for the provision of services, treatment, evaluation, assessment and protection, as appropriate to the representation. The lawyer shall participate in the proceedings to the degree necessary to represent his or her client, including the filing of motions, responses, objections and appeals at all appropriate stages of the proceedings.
Fees and Costs
A. Court-appointed lawyers shall be fairly compensated for representation in Dependent Court proceedings.
B. Counsel for indigent parties may make a motion to the Administrative Judge of Family Court to request independent expert or investigative services. The motion must be in writing. If the motion is granted, the Court shall pay reasonable expenses for the ordered services.
The motion must set forth a specific and concise theory as to the purpose and necessity of the service requested and what outcome would be accomplished by the provision of these services. The Court shall grant motions which show that the issues to be addressed by the expert are in controversy in the case; that a second opinion is needed to counter an expert opinion obtained by the Department of Human Services; or that additional investigative work is needed beyond what counsel may reasonably do on his or her own.
Commentary to Rules 1702 through 1705
The Court seeks to ensure the provision of competent and effective counsel in Dependent Court for Philadelphia parents and children. These rules arise from the belief that Dependent Court work is a sensitive and important practice in which lawyers are entrusted with the protection of the fundamental rights of parents and children. Members of the dependency bar participate in decisions that will critically affect a family's future and may expose a parent to criminal liability. Untrained or ineffective parents' lawyers may risk full termination of their clients' parental rights and the loss of their children forever. Unskilled child advocates may fail to adequately protect a child from further abuse or may relegate a child to a life of foster care drift. Quality advocacy can protect children and preserve families. Ineffective lawyering may have devastating consequences for children and families.
These rules recognize the interdisciplinary nature of Dependent Court work. The problems that families bring to Court are not strictly legal problems; to be effective, lawyers must be conversant with many fields. Medical, psychological and social work practice are integral to dependency work, as these disciplines provide information about child abuse and neglect, the treatment of substance abuse, family dysfunction, child development, and many other relevant topics.
Dependent Court practitioners should be competent in the following areas:
a. relevant federal and state laws, agency regulations, Court decisions and Court rules;
b. use of expert witnesses and scientific and medical evidence, including but not limited to, psychiatric and pathological evidence;
c. child development, needs and abilities;
d. family dynamics and dysfunction, including cultural aspects of families and the use of kinship care;
e. substance abuse and rehabilitation/treatment programs and resources;
f. public benefits including Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), adoption assistance, kinship foster care subsidy, medical assistance and managed care;
g. information on accessible child welfare, family preservation, medical, educational and mental health resources, including placement, evaluation/diagnostic, and treatment services; and other services which may constitute reasonable efforts to preserve and/ or reunify families; and
h. risk assessment instruments and case plans.
1. Public Law 105-89, amending Titles IV-B and IV-E of the Social Security Act, 42 U.S.C. sec.620-629e, 670-679b.
2. Statistics are for the year ending December 31, 1997. National Center for Juvenile Justice, Pennsylvania Court Improvement Project Final Report, August 4, 1998, at 49.
3. Baby Neal, et al. v. Thomas P. Ridge, et al., Civil Action No. 90-2343 (E.D. Pa.).
4. Philadelphia Citizens for Children and Youth, Juvenile Justice in Philadelphia: Court Watch Report 1999-2000, fall 2000.
5. National Center for Juvenile Justice, Pennsylvania Court Improvement Project Final Report, August 4, 1998, at 62, fn. 69 and 70.
6. Id. at 61.
7. Cf. National Center for Juvenile Justice, A Study of the Quality of Purchased Legal Assistance for Children in Maryland, July 14, 2000; and "A Brake on the Wheels of Justice: Shortage of Lawyers for the Poor Plagues the Courts" in New York Times, January 17, 2001.
8. In the early 1990s and before, the rates were $30 per hour for out-of-court service and $40 per hour for in-court service.
9. Resolution of the Philadelphia Bar Association, March 27, 1997.
10. Supra note 1.
11. 42 Pa.C.S.A. §6305.
12. In its recently issued Courtwatch, Philadelphia Citizens for Children and Youth (PCCY) found numerous deficits in the delinquency courts, including short hearings, excessive continuances, minimal youth and parent participation, role confusion among professional staff, inadequate resources for the increased population of female offenders, inadequate aftercare and dispositional alternatives, and the over-representation of minority youth. PCCY called for five additional judges and/or masters to preside in these cases. Philadelphia Citizens for Children and Youth, Juvenile Justice in Philadelphia: Court Watch Report 1999-2000, fall 2000.
13. In New York State, following extensive study, Chief Judge Judith S. Kaye has proposed a rate of $75 an hour, for both Criminal and Family Court lawyers and for in-court and out-of-court work. New York Times, January 17, 2001.
14. Act 18 of 1999 (effective July 2000).
# # #