by Natalie Nelson, J.D.
Child welfare cases are about doing what is best for the youth involved. Youth need and deserve to be part of that process, and court hearings are one way to do that. Having children involved in court hearings helps the court learn more about the children than what is presented in the reports. The youth makes the case more real for the court and as the case progresses, the court can see that the child is getting older and needs permanency. When youth are present at court hearings, the court is more likely to focus on the youth’s needs rather than focusing only on what the parents have or have not accomplished.
Having youth at court hearings benefits not just the court, but also the youth. It gives youth the opportunity to understand the court process by seeing firsthand the court proceeding. Active participation also gives youth a sense of control over the decisions being made in his or her life.
Major national child welfare organizations agree that youth should participate to some extent in their child welfare hearings. The Pew Commission on Foster Care report, Fostering in the Future: Safety, Permanency, and Well-Being for Children in Foster Care, recommends that foster youth must be part of the proceedings that will forge their future - youth should receive notice of, have a right to be present at, and be encouraged to attend proceedings in their dependency cases. In a recent Home At Last survey, entitled My Voice, My Life, My Future, 73% of youth stated that they attend court only some of the time. 29% reported that they never attend court, 20% reported attending most of the time and 18% reported always attending court hearings.1
According to the Resource Guidelines published by the National Council of Juvenile and Family Court Judges, a youth should be present at some point for the judge to observe them, at least during the review and permanency planning hearings. If the child is able to present information to the court on their needs and desires, or if they have questions or concerns, they should be permitted to address the court. In addition, during preliminary protective hearings, adjudication, disposition and termination hearings, a youth may be present depending on factors including age, physical and emotional condition of the child, and potential trauma to the child.2 The ABA also endorsed these Guidelines.
Recent federal legislation makes youth participation in court a requirement for Title IV(e) Funding. It requires that, “…procedural safeguards shall be applied to assure that in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.”3
Some states address youth’s participation in court in their state statutes. A recent ABA article compiled the following examples4:
-
Kansas directs the court to hear testimony of youth 14 years or older if the youth requests it and is of sound intellect.
-
Minnesota states that children have the right to participate in all proceedings.
-
New Mexico allows a child 14 and older to be present in court and requires the court to find a compelling reason and state the factual basis if the child is to be excluded. A child under 14 is permitted to be in court in New Mexico, unless the court finds it’s in the best interest of the child to exclude her
-
Florida only restricts a child’s presence in court if the court finds the child’s mental or physical condition or age is such that appearing in court is not in the child’s best interests.
-
Virginia requires notice and the ability of a child 12 years of age or older to participate in foster care review hearings
-
California lists a youth’s ability to attend court hearings and speak to the judge as one right for children in foster care.
-
Michigan requires youth over age 11 to be notified of review, permanency and termination of parental rights hearings.
Practice Considerations for involving youth in court proceedings5
Many teams in the Initiative are working to develop protocol for children attending court hearings. Protocols vary widely and it's difficult to know what is the best procedure given the variation in children and the lack of data studies on this topic. Here are some tips for your team to consider when developing your protocol:
-
Age and developmental level of the child– The court can gain insight from even the youngest children by observing the child’s demeanor, appearance, and interaction with biological and/or foster parents. Older children may be able to give the court additional information or correct faulty information by having the opportunity to testify in court or in chambers.
-
Youth’s routine – Court hearings generally take place during school hours, so school-age youth may have to miss school to attend. It may be helpful to schedule hearings during the youth’s study hall or home room, or near the end of the day to minimize the amount of school time the youth needs to miss. It is also important to avoid continuances as these may require the child the child to miss multiple days of school. Nonetheless, although school attendance should be a priority for all children and youth, occasional absences to attend court hearings, will often be in the child’s best interests.
-
Logistics: time and transportation – In order to allow youth participation, courts may need to allow more time for hearings. Arrangements will have to be made to have the youth transported to court hearings. Address in advance of the hearing who is responsible for making transportation arrangements so that transportation isn’t a barrier to youth participation.
-
Type of hearing – When the judge and parties feel that the information presented in court will not harm the youth and that the youth’s input is vital, have the youth present throughout the entire hearing without restricting what the youth may hear. If having the youth present for the entire hearing may be damaging, have the youth wait in a waiting area for the hearing and come into the courtroom only when the youth’s input is required.
-
Preparing the child – Arrange for the youth to visit to the courthouse and meet the judge when hearings are not occurring. Explain the hearing process, who takes part in hearing and what each person’s role is so that the youth knows what to expect on the day of the hearing.
1 Home at Last. My Voice, My Life, My Future Foster Youth Participation in Court: A National Survey, 2006 <www.fostercarehomeatlast.org>
2 National Council of Juveniles and Family Court Judges. Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases. Spring 1995, 69
3 42 USC 675(5)(c)(iii)
4 Khoury, Andrea. Seen and Heard: Involving Children in Dependency Court ABA Child Law Practice, December 2006
5 Khoury, Andrea. Seen and Heard: Involving Children in Dependency Court ABA Child Law Practice, December 2006
{moscomment}
