TITLEWhen is a CASA Not a Home? (When the CASA is a Court Appointed Special Advocate)Or Who Represents the Best Interests of Kids in Foster Care?

By Phillip S. Aurbach, Esq.

Here is a hypothetical: Mom cannot handle her two preteen children because of a mental disability. Dad is in jail because of sexual abuse. The children were taken from the home , placed in Child Haven (where kids stay when their parents are drug users, sexual predators, or otherwise incapable of raising their children) and now are in foster care. There is a hearing to terminate parental rights. The judge is supposed to be neutral and not take sides. Whose duty is it to investigate the living conditions, talk with the parents, the foster parents as well as the social worker, write a report and go to court and tell the judge what is in these kids' best interest?

Is it the Social Worker? Nope. They have a tremendous caseload and their job is to administratively close each case. They have 40 families in need of services and time to help five of the families. They are required by Nevada Law to prepare a permanent placement plan i.e., get the kids back home or, if that is not safe, terminate the parents rights and find an adoptive family. Although hypothetically, Social Workers are supposed to act in the best interest of the kid, their real priority is to close the case and move on to the next case. Our system does not give them the resources to spend on each family in need.

Is it the Social Worker's attorney obligated to advise the judge what is in the child's best interest? Nope. The District Attorney (formerly the Attorney General's office) assigns an Assistant District Attorney to advocate the Social Worker's position. Additionally, there is no oversight if the Deputy District Attorney fails at their job, e.g., offering the correct evidence to terminate the parents' rights. For the most part, the citizens involved in this process would not know if the Deputy District Attorney made a mistake or not. The elected District Attorney also not know unless he asks the Judge, “How are my deputies doing down there?”

Is it the Public Defender (or appointed counsel) who represents the natural mother or father? Nope again. The job of the Public Defender or appointed counsel is to advocate for their client, the parent. This usually means advocating a return of the children back to their parents--whose conduct required removal of the children from their home in the first place.

Maybe it is the CAP attorney (Children's Attorney Project) ? Double nope. Theoretically, this is a good program for older kids that know what is best for them. However, for younger or immature children, the appointed attorney has an incredible moral conflict of interest. This attorney usually has firsthand knowledge of the home conditions. He or she hears of the horrible conduct of the parents that endangered the child. But guess what? In most cases the child wants to go back home. The exact environment that caused the state to step in and protect the child is the environment the child knows best and feels the most comfortable to the child. What does the CAP attorney do? A CAP attorney's job is to advocate for the child. If the child wants to go back to mom and dad because that is the only love they know, the CAP attorney is ethically obligated to do his or her level best to persuade the judge to send the kids back into the cauldron of chaos and danger which the child knows best. Morally, the CAP attorney may know this is not the best choice for the kids. Initially, he or she either tries to persuade the child away from going home. However, when push comes to shove, the CAP attorney must represent his or her client. This can be gut wrenching for even the most hardened advocates. For a good article advocating the need for two attorneys--one attorney to represent the child and a different attorney to represent the best interests of the child (because of the different advocacy needs of a child as the child goes from infant to a teenager), see Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required by Donald Duquette, University of Michigan Law School, Family Law Quarterly, Vol. 34, Number 3, Fall 2000.

Finally we get to the only voice in the ear of the judge that is focused on what is best for the child--a CASA volunteer (Court Appointed Special Advocate). They are usually not (but can be) attorneys. They come from all walks of life, go through special training, and volunteer their time for these kids. They talk to the children, the parents, the foster parents, teachers, relatives, therapists, the social worker, and others that provide assistance to the children and families. They also talk to the army of attorneys that are provided by the system who try to reason with the CASA, cajole the CASA, intimidate the CASA and coerce the CASA toward their particular view. The CASA then prepares a written report which is filed with the court and given to the multitude of attorneys who may oppose the CASA's recommendations. The CASA goes to court and is the lone voice for the best interest of children in foster care. Every other person in the system has his or her (or their clients') best interests in mind which may be far from the best interest of the child. The CASA program originates in 42 U.S.C. 5106, the Child Abuse Prevention and Treatment Act (CAPTA) which provides funds to local agencies for Child Protective Services relating to child abuse and neglect. One of the requirements to obtain this grant is to require "that in every ... judicial proceeding [involving child abuse and neglect] a guardian ad litem who has received training appropriate to the role and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child . . . [and the guardian ad litem or CASA shall obtain a] first-hand, clear understanding of the situation and needs of the child; and make recommendations to the court concerning the best interests of the child."

Everyone in the system has access to a lawyer except the CASA who, unless they are a lawyer, must rely on their own resources in drafting a cogent report and articulating the best interest of the children to the judge during the hearings. CASA volunteers should be applauded for their countless hours and devotion to what is best for these children.

Nevada law requires each county to provide child protective services. NRS 432B.325. If a child is in need of protection as defined in NRS 432B.330, the county may place a child into protective custody if there is a reasonable cause to believe that immediate action is necessary to protect the child from injury, abuse or neglect. NRS 432B.390. Although stable relatives are the first choice for placement, NRS432B.390(7)(c ), a child must be placed shelter or foster home until there is a hearing. NRS 432B.390(6). Once there is a hearing, the judge reviews a permanent placement plan and balances the statutory mandate to reunify the family if possible while protecting the health and safety of the child. NRS 432B.393.

When a child cannot remain with family, the goal is to place the child in another safe, nurturing environment. Children are temporarily placed in Child Haven or an emergency shelter home.

Child Haven is a part of the Clark County Department of Family Services (DFS) and provides temporary care and treatment for abused, neglected and abandoned children between 3 days to 17 years of age. Children are placed in protective custody in Child Haven by police or DFS workers. The Child Haven campus consists of eight cottages, and activity and school centers. Children are assigned to a cottage based on their age and sex. The cottages have a capacity of housing 12 children each, except for the infants cottage, which has a capacity for 20 infants.

The CAP program at Clark County Legal Services was formed in 1999 from a task force of County Commissioner 's, Clark County District Court, Social Worker's, Attorney's, Family Law Judges and State Children's Rights workers. The fundamental goal was to create a method for abused and neglected children, who are in foster care placement, institutions or wards of the state, to have a voice in court and speak out for their destiny.