GUEST VOICE
April 1999
KILL ALL THE LAWYERS, DESPOIL THE DEPENDENCY COURTS
By Kenneth M. Stern, Esq.
Statewide dependency courts' purpose is to protect children; but, they are limited in their ability to do so. The dependency system is not designed so judicial officers will objectively, fairly and rationally make decisions based upon accurate information. The problem arises as judicial officers rely almost exclusively upon information, frequently incorrect, provided by the social workers.
Some judicial officers act as rubber stamps for social workers' recommendations. This creates a climate for social workers to be haphazard in their investigations and disingenuous in their recommendations. It eliminates checks and balances judicial officers were intended to provide.
Only through a judicial system applying due process can judicial officers engage in accurate fact finding. Only through effective representation of counsel, the right to fair hearings, the right to confront and cross-examine accusers and the right to present evidence, can there be confidence decisions are made upon accurate information. Due process in many dependency courts, unfortunately, can be an illusionary subterfuge, deceiving the public into believing children are protected, when they are not.
When Shakespeare wrote: "The first thing we do, let's kill all the lawyers," he was speaking for cutthroats lusting for power; knowing lawyers' ability to reason would interfere with, and protect against, the imposition of abusive power. (King Henry VI)
Privately appointed attorneys have greater independence, from the system, than institutional attorneys. They understand their client--not the system--is whom they have been appointed to represent.
Reforms in Los Angeles dependency courts, through economic disincentive for counsel to accept appointments, will effectively eliminate true application of due process. They will eliminate attorneys who will be vigorous advocates for clients; perceived by some as an uneconomical and inefficient way to administer courts.
The reforms require attorneys to represent parties for a flat fee of $760 with potential for a few insignificant increments.[1]
The court's own statistics show payment will average $18 per hour. The potential exists that the hourly rate could be much lower. Representation could entail six or more contested hearings over twenty-one years, with a $1,060 fee, for hundreds of hours of work. Potential exists that an attorney could represent a client, for years, with no payment whatsoever.
Los Angeles County has been presented with an ethics opinion stating the changes will not allow appointed private attorneys to ethically represent clients.[2]
The danger exists that the only attorneys who will accept appointments will be those who will forfeit their clients' rights. It can have the effect that even those parents falsely accused of abusing their children will be coerced into admitting abuse. If such changes take root, danger exists they will spread to dependency courts in other counties. In fact, a flat-fee plan has been implemented in Santa Clara County.
Supervisor Yaroslavsky, at a Los Angeles County Board of Supervisors meeting on October 24, 1995, espoused appointed private attorneys' opposition to the changes demonstrates their validity. Did American patriots who fought against King George III demonstrate, in giving their lives to form America, the King's unfair treatment of the colonists was justified? Did those who gave their lives in Tiannemen Square, by their protests to obtain liberty in China, demonstrate China's repression of civil liberties is proper? Did the United States fight against Hitler give justification to the Third Reich?
The propriety of imposition of flat-fees, on cases for which appointment was previously made pursuant to an hourly fee, has been upheld by the California appellate court. But the appellate court never considered the dangers the flat-fee plan could have for children and parents in dependency court proceedings, saddled with ineffective counsel.[3]
Children and parents in dependency court have a statutory right, and in most cases a constitutional right, to effective assistance of competent counsel.[4]
Two appellate courts have expressed concerns that attorneys, pursuant to the flat-fee plan, are not adequately representing their clients.[5]
These two appellate cases may well represent the tip of the iceberg, i.e., that of attorneys who will not adequately represent their clients due to the imposition of the flat-fee plan.
Appointed private dependency lawyers understand representation of clients, in child abuse cases, presents the most challenging and rewarding professional experiences attorneys may have. It is not about money or property. It is about fixing broken families. It is about helping parents rehabilitate themselves, so they may he good parents. It is about protecting and nurturing children. The work is as honorable as an attorney can perform. Despite the humanistic rewards, few lawyers would even consider involving themselves in the kind of emotionally draining work which dependency cases frequently involve.
It would be unfair to criticize dependency systems, or the changes implemented in Los Angeles County, without offering alternative beneficial changes.
1. Congested dependency courts should be separated into courts that only preside over contested hearings and those which preside only over routine and uncontested matters. Sometimes dependency courts are required to squeeze in contested hearings, a few minutes a day, with the other matters on calendar. This results in a trial, normally completed within a few days, which can takes months to conclude.
2. There should be the right to jury trial. If the issue concerns money, such a right exists.[6] If the issue is whether a child will be abused or what relationship between parent and child is appropriate, there is no such right.[7] Such priorities are convoluted. This might not be the problem it is, if many dependency judicial officers did not rubber stamp social worker's recommendations.
3. Methods to prevent judicial officers from becoming rubber stamps for social workers should be implemented. Methods of finding the fairest, most independent, objective and insightful judicial officers, to serve in dependency court, should be of paramount importance. Evaluations should be made to determine which judicial officers are not exercising independent judgment.
4. Judicial officers should be trained to properly interview children to produce accurate factual accounts. There is great danger in using improper techniques, miscommunication will occur, leading to inaccurate information. Such occurs frequently.
5. Testimony should be allowed, as in non-dependency cases, only through witnesses appearing in court. Contested trials are decided upon multiple hearsay contained in social workers' reports, no matter how untrue, unreliable or biased. Frequently hearsay declarants are not available for cross-examination. Yet, judicial officers rely upon such statements for their decisions.[8]
6. Social workers, and their employers, should be held accountable for false information presented to the court, especially when the information is deliberately falsified. A correct step was taken in this direction when, in 1995, California Government Code section was enacted stating social workers will not be immune from liability for acts of (1) perjury, (2) fabrication of evidence, (3) failing to disclose known exculpatory evidence, or, (4) obtaining testimony by duress, fraud, or undue influence.)
7. The ability to punish appointed private attorneys through removal from consideration for appointment to cases for properly representing their clients should be taken from judicial officers. A system similar to that used in criminal cases in Los Angeles County, wherein the appointment panel is administered by the Los Angeles County Bar Association, could be a solution.
The United States and California founders understood justice is protected by suppression of arbitrary decision making. That is why due process, in the respective constitutions, was recognized as paramount to the protection of legitimate public and private interests. It is only if these principles are truly honored in their application, in dependency courts, that children can be properly protected.
8. A system of reasonable compensation for attorneys, as required by Welfare and Institutions Code section 218 and common sense, needs to be restored; so, attorneys will not have the financial disincentive to vigorously represent their clients.
Footnotes
[1] Memorandum, dated December 21, 1995, Superior Court of the State of California for the County of Los Angeles, Juvenile Court, issued by Judge Richard Montes and Michael Nash.
[2] Opinion of Susan Margolis, Esq., dated August 21, 1995.
[3] Amarawansa v. Superior Court (1996) 49 Cal.App.4th 1251, 57 Cal.Rprt.2d 249. (Petition for Review denied by the California Supreme Court, February 4, 1997.) The Appellate Court noted, however, that it did not consider the propriety of the flat-fee plan per se. It only decided whether the court had the right to unilaterally change the fee structure.
"Petitioners concede in their reply papers 'the concept of a 'flat fee' system is not in issue in the instant proceeding ... The issue is Respondents breach of the existing contract ... "Id. at p. 1257. (emphasis in original.)
[4] California Welfare and Institutions Code section 317.5; Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981); Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974); In Re: Kristin H. 46 Cal.App.4th 1635, 1659, 54 Cal.Rprt.2d 722.
[5] Crasse S. v. Superior Court (1996) 50 Cal.App.4th 947, 58 Cal.Rprt.2d 56; In Re Cheryl S. (1997) 51 Cal.App.3d 1000.
Cresse S. stated:
Petitioner's counsel is not alone in his submission of an inadequate petition. We have noticed an alarming number of similar petitions being filed which have little, if any merit. This is perhaps caused by two problems. The first is that counsel in dependency cases are generally paid on a flat fee basis. Under this flat fee arrangement, the attorney not only performs services in connection with the dependency court proceedings, but may be obligated to file a petition for writ of mandate permitted by section 39.1B. Perhaps the compensation arrangement presents too little incentive to these attorneys to perform their appellate responsibilities adequately. . . ."Whereas Cheryl S. noted:In October, Cheryl filed a rule 39.1B petition containing one paragraph of generalized allegations, without any facts or record references ... We ordered Cheryl's court appointed lawyer (Hans F. Berg) to respond, which he did, suggesting the burden ought to be placed on DCFS to defend the ruling it obtained in the trial court or on the court, not on the person attacking that ruling.[6] California Constitution, Article 1 section 16.Second, we summarily reject the notion that DCFS has an obligation to do the petitioner's work. ... does not relieve the petitioners attorney from meeting his obligation to present an adequate record, argument and points and authorities.. . . The fact that the attorney is paid a flat-fee is, of course, irrelevant--if he deems the fee inadequate, he need not accept the appointment.
[7] California Welfare and Institutions Code section 356; In Re Jay J. (1977) 66 Cal.App.3d 631, 136 Cal.Rprt. 125.
[8] In Re Malinda S. (1990) 51 Cal.3d 368, 272 Cal.Rprt. 787, 795 P.2d 1244.
Kenneth M. Stern is an attorney in private practice in Los Angeles County, California.Copyright © 1999 Kenneth M. Stern
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