December 2018 Juvenile Law CLE

Registration – 9:30 am, Program – 10 am

Ramkota Hotel, Rapid City this CLE is free to all active bar members – all others, cost is $100

10:00 a.m.

Introductions

10:10 a.m.

Best Practices: Representing the Parent in A&N Cases – Jeanette Pitts, Public Defender’s Office

10:50 a.m.

Best Practices: Representing the Child in A&N Cases – Dana Hanna, Hanna Law Office

10:50 a.m.

CPS’s Role in A&N Cases – Lisa Fleming, DSS

11:30 a.m.

Lunch – Sponsored by CLE Committee – Q&A Program During Lunch

1:00 p.m.

Pediatric Forensic Interviewer: Working with Traumatized Children in the Court Room – Brandi Tonkel, Children’s Home Society

1:40 p.m.

Break

1:50 p.m.

Panel Discussion: Best Practices | FQA for A&N Manual - Hon. Patty DeVaney, 6thCircuit; Hon. Robert Gusinsky, 7th Circuit; Lisa Fleming, Brandi Tonkel

3:00 p.m.

Representing Juvenile Defense – Joanna Lawler, Public Defender’s Office

Register online www.statebarofsouthdakota.com

Carrie Sanderson & Tara Adamski, Co-Chairs

The State Bar of South Dakota, and The Committee on Continuing Legal Education Present:

Juvenile Law

Best Practices: Representing the Parent in A&N Cases Jeanette Pitts, Public Defenders Office

M. Jeanette Pitts

I am a native of South Carolina and a 2015 graduate from the University of Michigan Law. I received my bachelor’s degree in English from Furman University in Greenville, South Carolina. I came to South Dakota to work for the Office of the Public Defender in Pennington County, where I have been for the past three years.

I started working in misdemeanors and then transitioned to representing parents in abuse and neglect proceedings. I have been doing so for nearly two years.

Representing Parents in Abuse and Neglect Cases •

Parents’ Rights o “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” -Santosky v. Kramer, 455 U.S. 745, 753 (1982)

•

SDCL 26-8A-2. Abused or neglected child defined. o There are 10 subsections of the South Dakota statute. Some of the most recent I’ve encountered include children: • Abandoned by their parents [26-8A-2(1)] • Whose parents are not taking care of their child(ren)’s educational or medical needs [26-8A-2(4)] • Who are threatened by “substantial harm” by other family members or people in their homes [26-8A-2(6)] • Who are sexually abused, molested, or exploited by a parent or while in their parent’s care [26-8A-2(8)] • Who are born with illegal substances in their bodies [26-8A-2(9)]

•

Important Parties o DSS: Department of Social Services o CASA: Court-Appointed Special Advocate (not required to be an attorney) o State’s Attorney o Attorney for each parent, legal guardian/custodian, the child(ren), and the tribe (if applicable)

•

Important Considerations o Abuse and Neglect proceedings are civil cases that deal with the adjudication of children; therefore, the proceedings are focused on the status of the children. o Criminal charges may be filed, so it is important to distinguish the nature of this proceeding and the criminal case. It is also important to remind your client that testimony in their A&N case can be used against them in their criminal case. o Often the client will ask how DSS or the State came to light on their issue.

Anyone can make a referral to DSS if they suspect that a child is abuse or neglected. There are also mandatory reporters, such as teachers and doctors.

•

Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) o ICWA governs children who are enrolled or eligible for enrollment in a federally recognized tribe o 25 U.S.C. § 1902: “…establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….” o §§ 1911-1923 relate to child custody proceedings ▪ Note that ICWA has higher standards for the removal of children, foster care placement, and termination of parental rights

•

48 Hour/Temporary Custody Hearing

o Standards ▪ ICWA: State must prove by a preponderance of the evidence that continued removal is necessary to prevent imminent physical damage or harm to the children.

▪ Non-ICWA: the Court shall consider the evidence of the need for continued temporary custody in keeping with the best interests of the child. o Reasonable efforts by DSS must be made to avoid removal of the child from the home.

•

48-Hour/Temporary Custody Hearing (continued) o This is only the first stage in the A&N process—please let parents know that their rights are not terminated at this hearing and that there will be several hearings in the future. If the Judge finds that continued custody is authorized, it is of utmost importance that the parents work with DSS, as DSS has the authority to return children to the parent(s) so long as no danger exists. o There’s also the option of having an evidentiary hearing for placement of the children after this hearing and before the adjudicatory hearing, if circumstances change or more information comes to light. I find that some clients feel reassured if you let them know that there can and will be more hearings in the future.

•

Timeline o After the Temporary Custody Hearing: ▪ Advisory Hearing within the next 30 days • At this hearing, the parent will enter either a denial or admission to the petition filed by the State. The petition will list all the alleged areas wherein the child may be adjudicated to be abused and/or neglected.

▪ Adjudicatory Hearing within 60 days after the Advisory Hearing • This is a formal evidentiary hearing where the State must prove their case by clear and convincing evidence. If ICWA applies, the State must also prove that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful and that continued custody of the child by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child.

•

If Adjudicated (or the parent enters an admission), then the case will move into the “treatment phase.”

Timeline (continued) o In “treatment phase,” the parent will be working with DSS on a case plan that may result in the return of the child to his/her custody. This may include: ▪ Drug/alcohol evaluation and treatment • Note: The judge has the discretion to order drug testing before returning a child to his/her parent’s custody.

▪ Parenting classes ▪ Individual and/or family therapy ▪ Finding stable, secure housing

▪ Doctor’s appointments for education on the child’s medical needs o Review hearings are held every 30-90 days to monitor the case and progress.

•

Final Dispositional Hearing o Within or around one year, the Court will enter a final decree of disposition. This may include: ▪ Placing the child(ren) with one or both parents ▪ Placing the child(ren) with a relative ▪ Placing the child(ren) in a permanent custody of DSS for the purpose of creating a guardianship ▪ Placing the child(ren) in a treatment facility ▪ Termination of parental rights • This must be the least restrictive alternative commensurate with the best interests of the child(ren).

•

Termination of Parental Rights (TPR) o The rights of the parents are secondary to the best interests of the child. Matter of Z.Z., 494 N.W.2d 608 (SD 1992). o Parental rights may be terminated if: ▪ A parent is sentenced to a lengthy term of incarceration ▪ The parent has failed to make efforts to change ▪ The parent has cooperated with DSS, but the danger to the children cannot be eliminated o However, the fact that a foster parent or relative may provide good or better care than a biological parent is not an appropriate standard for determining the best interest of the child. In Interest of J.L., 2002 SD 144.

•

Attorney Duties o Obtaining, reading, and reviewing all relevant documents o Drafting and filing motions, subpoenas, etc. o Meeting with the client o Meeting with DSS o Meeting with the State’s attorney o Communicating with and contacting family members o Communicating with treatment providers and/or doctors o Advocating for placement with parent

•

Attorney Duties (continued) o MONITOR THE FILE! ▪ There are a lot of moving parts. Careful monitoring is NECESSARY to be an effective advocate in these cases.

▪ Your job will be to note the details of each case to see if the efforts made for reunification of the family are appropriate.

▪ The Review Hearings are times when requests can be made to increase time for visitation, request alternative resources, or request return of custody. Staying informed as to your client’s progress makes this a lot easier.

•

Attorney Duties (continued) o Things to consider: ▪ Cultural/spiritual practices • Clients are encouraged to participate in cultural and religious practices that are beneficial. However, a spiritual, unlicensed treatment facility is unlikely to satisfy a drug treatment requirement.

▪ Clients with mental illnesses • Clients with mental illnesses may need extra people to help them, such as medication managers or caseworkers. It is important to check whether or not these options were explored.

▪ Addiction • A constant thing to remind the State and the Court is that addiction requires adequate care. In addition, relapse can happen to anyone—and need not be an absolute bar if sufficient supports are put in place.

▪ Homelessness • Homelessness alone is not a reason to continue the custody of children. The statute specifically states that a child is abused/neglected if “homeless, without proper care.” 26-8A-2(5).

•

Further Resources: ▪ South Dakota Guidelines for A&N Proceedings: https://ujs.sd.gov/media/pubs/SDGuidelinesAandNProceedings.pdf ▪ South Dakota A&N brochure: https://ujs.sd.gov/uploads/pubs/AandN_Brochure.pdf ▪ ICWA: 25 U.S.C. §§1901-1963 ▪ South Dakota Codified Laws on A&N proceedings: SDCL 26-8A ▪ Bureau of Indian Affairs Resources: https://www.bia.gov/bia/ois/dhs/icwa

•

Questions?

REPRESENTING PARENTS IN ABUSE AND NEGLECT CASES M. Jeanette Pitts

Parents’ Rights “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.�

-Santosky v. Kramer, 455 U.S. 745, 753 (1982)

SDCL 26-8A-2. Abused or neglected child defined.

There are 10 subsections of the South Dakota statute. Some of the most recent I’ve encountered include children: ◦

Abandoned by their parents [26-8A-2(1)]

◦

Whose parents are not taking care of their child(ren)’s educational or medical needs [26-8A-2(4)]

◦

Who are threatened by “substantial harm” by other family members or people in their homes [26-8A-2(6)]

◦

Who are sexually abused, molested, or exploited by a parent or while in their parent’s care [26-8A-2(8)]

◦

Who are born with illegal substances in their bodies [26-8A-2(9)]

Important Parties ◦DSS: Department of Social Services ◦CASA: Court-Appointed Special Advocate (not required to be an attorney) ◦State’s Attorney ◦Attorney for each parent, legal guardian/custodian, the child(ren), and the tribe (if applicable)

Important Considerations â—Ś Abuse and Neglect proceedings are civil cases that deal with the adjudication of children; therefore, the proceedings are focused on the status of the children. â—Ś Criminal charges may be filed, so it is important to distinguish the nature of this proceeding and the criminal case. It is also important to remind your client that testimony in their A&N case can be used against them in their criminal case. â—Ś Often the client will ask how DSS or the State came to light on their issue. Anyone can make a referral to DSS if they suspect that a child is abuse or neglected. There are also mandatory reporters, such as teachers and doctors.

Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) ◦ ICWA governs children who are enrolled or eligible for enrollment in a federally recognized tribe ◦ 25 U.S.C. § 1902: “…establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….” ◦ §§ 1911-1923 relate to child custody proceedings ◦ Note that ICWA has higher standards for the removal of children, foster care placement, and termination of parental rights

48 Hour/Temporary Custody Hearing Standards ◦ ICWA: State must prove by a preponderance of the evidence that continued removal is necessary to prevent imminent physical damage or harm to the children. ◦ Non-ICWA: the Court shall consider the evidence of the need for continued temporary custody in keeping with the best interests of the child. ◦ Reasonable efforts by DSS must be made to avoid removal of the child from the home.

48-Hour/Temporary Custody Hearing ◦ This is only the first stage in the A&N process—please let parents know that their rights are not terminated at this hearing and that there will be several hearings in the future. If the Judge finds that continued custody is authorized, it is of utmost importance that the parents work with DSS, as DSS has the authority to return children to the parent(s) so long as no danger exists. ◦ There’s also the option of having an evidentiary hearing for placement of the children after this hearing and before the adjudicatory hearing, if circumstances change or more information comes to light. I find that some clients feel reassured if you let them know that there can and will be more hearings in the future.

Timeline After the Temporary Custody Hearing: ◦ Advisory Hearing within the next 30 days ◦ At this hearing, the parent will enter either a denial or admission to the petition filed by the State. The petition will list all the alleged areas wherein the child may be adjudicated to be abused and/or neglected. ◦ Adjudicatory Hearing within 60 days after the Advisory Hearing

◦ This is a formal evidentiary hearing where the State must prove their case by clear and convincing evidence. If ICWA applies, the State must also prove that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful and that continued custody of the child by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child.

◦ If Adjudicated (or the parent enters an admission), then the case will move into the “treatment phase.”

Timeline ◦ In “treatment phase,” the parent will be working with DSS on a case plan that may result in the return of the child to his/her custody. This may include: ◦ Drug/alcohol evaluation and treatment ◦ Note: The judge has the discretion to order drug testing before returning a child to his/her parent’s custody. ◦ Parenting classes ◦ Individual and/or family therapy ◦ Finding stable, secure housing ◦ Doctor’s appointments for education on the child’s medical needs Review hearings are held every 30-90 days to monitor the case and progress.

Final Dispositional Hearing ◦ Within or around one year, the Court will enter a final decree of disposition. This may include: ◦ Placing the child(ren) with one or both parents ◦ Placing the child(ren) with a relative ◦ Placing the child(ren) in a permanent custody of DSS for the purpose of creating a guardianship ◦ Placing the child(ren) in a treatment facility ◦ Termination of parental rights ◦ This must be the least restrictive alternative commensurate with the best interests of the child(ren).

Termination of Parental Rights (TPR) ◦ The rights of the parents are secondary to the best interests of the child.

- Matter of Z.Z., 494 N.W.2d 608 (SD 1992). ◦ Parental rights may be terminated if: ◦ A parent is sentenced to a lengthy term of incarceration ◦ The parent has failed to make efforts to change ◦ The parent has cooperated with DSS, but the danger to the children cannot be eliminated ◦ However, the fact that a foster parent or relative may provide good or better care than a biological parent is not an appropriate standard for determining the best interest of the child.

-In Interest of J.L., 2002 SD 144.

Attorney Duties ◦ Obtaining, reading, and reviewing all relevant documents ◦ Drafting and filing motions, subpoenas, etc. ◦ Meeting with the client ◦ Meeting with DSS ◦ Meeting with the State’s attorney ◦ Communicating with and contacting family members ◦ Communicating with treatment providers and/or doctors ◦ Advocating for placement with parent

Attorney Duties

MONITOR THE FILE!

◦ There are a lot of moving parts. Careful monitoring is NECESSARY to be an effective advocate in these cases. ◦ Your job will be to note the details of each case to see if the efforts made for reunification of the family are appropriate. ◦ The Review Hearings are times when requests can be made to increase time for visitation, request alternative resources, or request return of custody. Staying informed as to your client’s progress makes this a lot easier.

Attorney Duties ◦ Things to consider: ◦ Cultural/spiritual practices ◦ Clients are encouraged to participate in cultural and religious practices that are beneficial.

However, a spiritual, unlicensed treatment facility is unlikely to satisfy a drug treatment requirement. ◦ Clients with mental illnesses ◦ Clients with mental illnesses may need extra people to help them, such as medication managers or caseworkers. It is important to check whether or not these options were explored. ◦ Addiction ◦ A constant thing to remind the State and the Court is that addiction requires adequate care.

In addition, relapse can happen to anyone—and need not be an absolute bar if sufficient supports are put in place. ◦ Homelessness ◦ Homelessness alone is not a reason to continue the custody of children. The statute specifically states that a child is abused/neglected if “homeless, without proper care.” 26-8A2(5).

Further Resources: ◦ South Dakota Guidelines for A&N Proceedings: https://ujs.sd.gov/media/pubs/SDGuidelinesAandNProceedings.pdf ◦ South Dakota A&N brochure: https://ujs.sd.gov/uploads/pubs/AandN_Brochure.pdf ◦ ICWA: 25 U.S.C. §§1901-1963 ◦ South Dakota Codified Laws on A&N proceedings: SDCL 26-8A ◦ Bureau of Indian Affairs Resources: https://www.bia.gov/bia/ois/dhs/icwa

Questions?

Best Practices: Representing the Child in A&N Cases Dana Hanna, Hanna Law Office

Dana L. Hanna Dana Hanna is a trial lawyer whose practice focuses on criminal defense cases, Indian law, and the legal rights of children. He has 15 years of experience in providing legal counsel to Indian tribal governments and representing Indian tribes in abuse and neglect cases governed by the Indian Child Welfare Act (ICWA). He currently represents the Rosebud, Oglala, and Cheyenne River Sioux Tribes in ICWA cases in South Dakota state courts. Mr. Hanna is admitted to practice in the courts of South Dakota, Nebraska, and New York.

Dana was born and raised in York, Nebraska. After practicing criminal law in New York City for 15 years, Dana moved to a buffalo ranch in the suburbs of Crookston, Nebraska (pop. 99) in the Nebraska sand hills and worked for the Rosebud Sioux Tribe on the Rosebud Reservation for 10 years, for 6 years as the Tribe’s chief public defender in the Tribal Court and then for 4 years as the Tribe’s Attorney General. He opened Hanna Law Office in Rapid City in 2007.

On information and belief, Dana Hanna is the only lawyer in the history of American jurisprudence to have tried criminal jury trials in the Southern District of New York in Manhattan and in the Eastern District of New York in Brooklyn and in the Rosebud Sioux Tribal Court in Rosebud, South Dakota.

THE ETHICAL DUTY OF THE LAWYER REPRESENTING A CHILD IN AN ABUSE AND NEGLECT CASE Presented by: Dana L. Hanna Hanna Law Office, P.C. PO Box 3080 629 Quincy Street Rapid City, South Dakota 57709 605-791-1832 dhanna@midconetworlk.com THE CHILD’S LAWYER IN AN ABUSE AND NEGLECT CASE HAS A DUTY TO REPRESENT THE CHILD’S BEST INTERESTS TO THE COURT. THE PARAMOUNT ETHICAL QUESTION IS: WHO DECIDES WHAT ARE THE CHILD’S BEST INTERESTS? IS IT THE LAWYER OR IS IT THE CLIENT? SOUTH DAKOTA CODIFIED LAWS SDCL 26-8A-18 Appointment of counsel--Compensation--Assistance. Notwithstanding the provisions of §§ 26-7A-31 and 26-8A-9, the court shall appoint an attorney for any child alleged to be abused or neglected in any judicial proceeding. The court shall appoint an attorney in the manner the county in which the action is being conducted has chosen to provide indigent counsel under § 23A-40-7. The attorney for the child shall represent the child's best interests and may not be the attorney for any other party involved in the judicial proceedings. The court may designate other persons, including a guardian ad litem or special advocate, who may or may not be attorneys licensed to practice law, to assist the attorney of the child in the performance of the attorney's duties. Compensation and expense allowances for the child's attorney shall be determined and paid according to § 26-7A-31.

CASE LAW The child’s lawyer in an abuse and neglect proceeding has a duty to present the child’s interests to the court.

In the Interest of T.A., 2003 SD 56: “The South Dakota Code is clear that the trial court must appoint an attorney for any child alleged to be abused or neglected.

SDCL 26-8A-18. Once appointed, we assume that the attorney will work zealously to protect the interests of the child. Accepting Parents' assertion that the child should have been prevented from presenting evidence at the adjudicatory hearing would mean that the child's interests are not presented to the court unless the child is found abused or neglected and a dispositional hearing is held. We do not agree with this result. The child's interests should be protected throughout the proceedings and the child's attorney is specifically charged with that duty. * SOUTH DAKOTA RULES OF PROFESSIONAL CONDUCT Rule 1.14. Client With Diminished Capacity (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

* AMERICAN BAR ASSOCIATION STANDARDS FOR REPRESENTING CHILDREN IN ABUSE AND NEGLECT CASES

A-1. The Child’s Attorney. The term "child’s attorney" means a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.

Commentary.

These Standards explicitly recognize that the child is a separate individual with potentially discrete and independent views. To ensure that the child’s independent voice is heard, the child’s attorney must advocate the child’s articulated position. Consequently, the child’s attorney owes traditional duties to the child as client consistent with ER 1.14(a) of the Model Rules of Professional Conduct. In all but the exceptional case, such as with a preverbal child, the child’s attorney will maintain this traditional relationship with the child/client.

As with any client, the child’s attorney may counsel against the pursuit of a particular position sought by the child. The child’s attorney should recognize that the child may be more susceptible to intimidation and manipulation than some adult clients. Therefore, the child’s attorney should ensure that the decision the child ultimately makes reflects his or her actual position. * * *

Communicating with the child client

A-3. Developmentally Appropriate. "Developmentally appropriate" means that the child’s attorney should ensure the child’s ability to provide client-based directions by structuring all communications to account for the individual child’s age, level of education, cultural context, and degree of language acquisition.

B-3. Client Under Disability. The child’s attorney should determine whether the child is "under a disability" pursuant to the Model Rules of Professional Conduct or the Model Code of Professional Responsibility with respect to each issue in which the child is called upon to direct the representation.

Commentary These Standards do not accept the idea that children of certain ages are "impaired," "disabled," "incompetent," or lack capacity to determine their position in litigation. Further, these Standards reject the concept that any disability must be globally determined. Rather, disability is contextual, incremental, and may be intermittent. The child’s ability to contribute to a determination of his or her position is functional, depending upon the particular position and the circumstances prevailing at the time the position must be determined. Therefore, a child may be able to determine some positions in the case but not others.

Similarly, a child may be able to direct the lawyer with respect to a particular issue at one time but not at another. This Standard relies on empirical knowledge about competencies with respect to both adults and children.

B-4. Client Preferences. The child’s attorney should elicit the child’s preferences in a developmentally appropriate manner, advise the child, and provide guidance.

The child’s attorney should represent the child’s expressed preferences and follow the child’s direction throughout the course of litigation.

Commentary

The lawyer has a duty to explain to the child in a developmentally appropriate way such information as will assist the child in having maximum input in determination of the particular position at issue. The lawyer should inform the child of the relevant facts and applicable laws and the ramifications of taking various positions, which may include the impact of such decisions on other family members or on future legal proceedings. The lawyer may express an opinion concerning the likelihood of the court or other parties accepting particular positions. The lawyer may inform the child of an expert’s recommendations germane to the issue.

As in any other lawyer/client relationship, the lawyer may express his or her assessment of the case, the best position for the child to take, and the reasons underlying such recommendation. A child, however, may agree with the lawyer for inappropriate reasons. A lawyer must remain aware of the power dynamics inherent in adult/child relationships. Therefore, the lawyer needs to understand what the child knows and what factors are influencing the child’s decision. The lawyer should attempt to determine from the child’s opinion and reasoning what factors have been most influential or have been confusing or glided over by the child when deciding the best time to express his or her assessment of the case.

Consistent with the rules of confidentiality and with sensitivity to the child’s privacy, the lawyer should consult with the child’s therapist and other experts and obtain appropriate records. For example, a child’s therapist may help the child to understand why an expressed position is dangerous, foolish, or not in the child’s best interests. The therapist might also assist the lawyer in understanding the child’s perspective, priorities, and individual needs. Similarly, significant persons in the child’s life may educate the lawyer about the child’s needs, priorities, and previous experiences.

While the child is entitled to determine the overall objectives to be pursued, the child’s attorney, as any adult’s lawyer, may make certain decisions with respect to the manner of achieving those objectives, particularly with respect to procedural matters. These Abuse and Neglect Standards do not require the lawyer to consult with the child on matters which would not require consultation with an adult client. Further, the Standards do not require the child’s attorney to discuss with the child issues for which it is not feasible to obtain the child’s direction because of the child’s developmental limitations, as with an infant or preverbal child.

(1) To the extent that a child cannot express a preference, the child’s attorney shall make a good faith effort to determine the child’s wishes and advocate accordingly or request appointment of a guardian ad litem.

Commentary

There are circumstances in which a child is unable to express a position, as in the case of a preverbal child, or may not be capable of understanding the legal or factual issues involved. Under such circumstances, the child’s attorney should continue to represent the child’s legal interests and request appointment of a guardian ad litem. This limitation distinguishes the scope of independent decisionmaking of the child’s attorney and a person acting as guardian ad litem.

(2) To the extent that a child does not or will not express a preference about particular issues, the child’s attorney should determine and advocate the child’s legal interests.

Commentary The child’s failure to express a position is distinguishable from a directive that the lawyer not take a position with respect to certain issues. The child may have no opinion with respect to a particular issue, or may delegate the decision-making authority. For example, the child may not want to assume the responsibility of expressing a position because of loyalty conflicts or the desire not to hurt one of the other parties. The lawyer should clarify with the child whether the child wants the lawyer to take a position or remain silent with respect to that issue or wants the preference expressed only if the parent or other party is out of the courtroom. The lawyer is then bound by the child’s directive. The position taken by the lawyer should not contradict or undermine other issues about which the child has expressed a preference.

(3) If the child’s attorney 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 lawyer may request appointment of a separate guardian ad litem and continue to represent the child.

Commentary

One of the most difficult ethical issues for lawyers representing children occurs when the child is able to express a position and does so, but the lawyer believes that the position chosen is wholly inappropriate or could result in serious injury to the child. This is particularly likely to happen with respect to an abused child whose home is unsafe, but who desires to remain or return home. A child may desire to live in a dangerous situation because it is all he or she knows, because of

a feeling of blame or of responsibility to take care of the parents, or because of threats. The child may choose to deal with a known situation rather than risk the unknown world of a foster home or other out-of-home placement.

In most cases the ethical conflict involved in asserting a position which would seriously endanger the child, especially by disclosure of privileged information, can be resolved through the lawyer’s counseling function. If the lawyer has taken the time to establish rapport with the child and gain that child’s trust, it is likely that the lawyer will be able to persuade the child to abandon a dangerous position or at least identify an alternate course.

If the child cannot be persuaded, the lawyer has a duty to safeguard the child’s interests by requesting appointment of a guardian ad litem, who will be charged with advocating the child’s best interests without being bound by the child’s direction. As a practical matter, this may not adequately protect the child if the danger to the child was revealed only in a confidential disclosure to the lawyer, because the guardian ad litem may never learn of the disclosed danger.

* B-5. Child’s Interests. The determination of the child’s legal interests should be based on objective criteria as set forth in the law that are related to the purposes of the proceedings. The criteria should address the child’s specific needs and preferences, the goal of expeditious resolution of the case so the child can remain or return home or be placed in a safe, nurturing, and permanent environment, and the use of the least restrictive or detrimental alternatives available.

Commentary A lawyer who is required to determine the child’s interests is functioning in a nontraditional role by determining the position to be advocated independently of the client. The lawyer should base the position, however, on objective criteria concerning the child’s needs and interests, and not merely on the lawyer’s personal values, philosophies, and experiences.

*

C-5. Child With Special Needs. Consistent with the child’s wishes, the child’s attorney should assure that a child with special needs receives appropriate services to address the physical, mental, or developmental disabilities. These services may include, but should not be limited to: (1) Special education and related services; (2) Supplemental security income (SSI) to help support needed services; (3) Therapeutic foster or group home care; and (4) Residential/in-patient and out-patient psychiatric treatment.

Commentary There are many services available from extra-judicial, as well as judicial, sources for children with special needs. The child’s attorney should be familiar with these other services and how to assure their availability for the client.

See generally, THOMAS A. JACOBS, CHILDREN & THE LAW: RIGHTS & OBLIGATIONS (1995); LEGAL RIGHTS OF CHILDREN (2d ed. Donald T. Kramer, ed., 1994).

D. Hearings

D-2. Client Explanation. The child’s attorney should explain to the client, in a developmentally appropriate manner, what is expected to happen before, during and after each hearing.

D-5. Child at Hearing. In most circumstances, the child should be present at significant court hearings, regardless of whether the child will testify.

Commentary A child has the right to meaningful participation in the case, which generally includes the child’s presence at significant court hearings. Further, the child’s presence underscores for the judge that the child is a real party in interest in the case. It may be necessary to obtain a court order or writ of habeas corpus ad testificandum to secure the child’s attendance at the hearing.

A decision to exclude the child from the hearing should be made based on a particularized determination that the child does not want to attend, is too young to sit through the hearing, would be severely traumatized by such attendance, or for other good reason would be better served by nonattendance. There may be other extraordinary reasons for the child’s non-attendance. The lawyer should consult the child, therapist, caretaker, or any other knowledgeable person in determining the effect on the child of being present at the hearing. In some jurisdictions the court requires an affirmative waiver of the child’s presence if the child will not attend. Even a child who is too young to sit through the hearing may benefit from seeing the courtroom and meeting, or at least seeing, the judge who will be making the decisions. The lawyer should provide the court with any required notice that the child will be present. Concerns about the child being exposed to certain parts of the evidence may be addressed by the child’s temporary exclusion from the court room during the taking of that evidence, rather than by excluding the child from the entire hearing.

The lawyer should ensure that the state/ custodian meets its obligation to transport the child to and from the hearing. Similarly, the lawyer should ensure the

presence of someone to accompany the child any time the child is temporarily absent from the hearing.

--------------------------------------------------------------------------------------------QUESTION TO BE DECIDED:

THE LAWYER HAS A DUTY TO PROTECT HIS CLIENT’S LEGAL INTERESTS. YOUR CLIENT HAS A CONSTITUTIONAL RIGHT TO DUE PROCESS. THAT MEANS YOUR CLIENT HAS A CONSTITUTIONAL RIGHT TO AN OPPORTUNITY BE HEARD IN A HEARING THAT CAN LEAD TO HIS OR HER PERMANENT SEPARATION FROM HIS OR HER FAMILY.

SO WHY ISN’T YOUR CLIENT IN THE COURTROOM?

State Bar of South Dakota

Ethics Opinion 2004-5   

Rules: 1.2, 1.14.

Subject: Representation of minors in Abuse and Neglect actions, client with diminished capacity Summary: Attorney may represent the "best interests" of a minor if steps are taken to protect the client's interests.

FACTS

Lawyer has been court-appointed to represent a 16-year old minor in an Abuse and Neglect case pursuant to SDCL 268A-18. Client has been adjudicated to be an abused or neglected child. A review hearing is set to determine the permanent placement of the child. The client is requesting that attorney advocate a placement that lawyer believes is not in the child's best interests.

Lawyer questions whether the statutory requirement that he represent the "best interests" of the child conflicts with his obligations under the Rules of Professional Conduct.

DISCUSSION SDCL 26-8A-18 requires the Court to appoint an attorney for any child alleged to be abused or neglected in any judicial proceeding. The statute further states, "The attorney for the child shall represent the child's best interests..." The statute also allows the court to "designate other persons, including a guardian ad litem or special advocate...to assist the attorney of the child in the performance of the attorney's duties."

Rule 1.2 provides, in part: Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

This general rule is modified by Rule 1.14 when the client has diminished capacity. Minority is one factor that may be used to determine whether the client has diminished capacity.

Rule 1.14 states: Rule 1.14 Client With Diminished Capacity (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6.

When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6 (a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

It is the opinion of the Committee that Rule 1.14 can be interpreted to be consistent with the dictates of SDCL 26-8A-18.

Lawyer is specifically referred to Comment 5 to Rule 1.14 which states that diminished capacity may include lack of sufficient capacity "to make adequately considered decisions in connection with the representation." When diminished capacity exists, the lawyer may take protective measures, including consultation with groups assisting the client, or appointment of a guardian ad litem. Any protective actions by lawyer "should be guided by such factors as the wishes and values of the client to the extent known, the client's best interest and the goals of intruding into the client's decision making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections."

While the Committee can not advise Lawyer on how to resolve the specific issues of his case, it is the opinion of the Committee that an attorney appointed to represent a minor pursuant to SDCL 26-8A-18 may take protective actions including representing the best interests of the child rather that the child's stated wishes, or requesting the appointment of a guardian ad litem, consistently with the Rules of Professional Conduct. Both the Rules and the Committee recognize that Lawyer's position is a difficult one.

Cynthia Howard Member, Ethics Committee State Bar of South Dakota

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CPS’S Role in A&N Cases Lisa Fleming, DSS

Lisa Fleming Lisa Fleming has over 29 years of experience in Child Protection Services in South Dakota. Prior to becoming Region 1, Regional Manager in 2015, she was a supervisor primarily in front-end services such as Initial Family Assessment, On-going services, Kinship Locator, Family Group Conferencing, and Team Decision Making.

Currently, Lisa is responsible for the management of 64 employees which includes eight supervisors, 43 family services specialists, seven social services aides, and six secretaries. Lisa has been active in the professional community. She participated in a community task force for the development of the Child Advocacy Center of the Black Hills and then served on the advisory board. She has also been active in the development and implementation of new practice models such as the Comprehensive Safety Intervention process in South Dakota. For two years, Lisa was a contractor for the nationally known ACTION for Child Protection Incorporation which has assisted multiple States, including South Dakota, in their development and implementation of safety practice models. Lisa participated on the National Resource Center for In-home Services Advisory Board for five years. Lisa was nominated and participated as a member of the Children’s Bureau, Health and Human Services Centennial Workgroup which developed the Voices to Vision, The Future of Child Welfare in America. This work is becoming reality through the reshaping of child welfare in the United States to focus on strengthening families through primary prevention of child maltreatment and necessary parent-child separation.

State Bar’s Juvenile Law Presented by: Lisa Fleming Regional Manager Department of Social Services Child Protection Services

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Mission Statement Strengthening and supporting individuals and families by promoting cost effective and comprehensive services in connection with our partners that foster independent and healthy families

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Child Protection Services

Child Protection Services responds to reports of child maltreatment in order to assess danger and threats of safety to children residing with their family.

Child Protection Services strives to assure the safety, permanency and well-being of all children served by the agency.

3

South Dakota Codified Laws • South Dakota Codified Law 26-8A-2 Definition • South Dakota Codified Law 26-8A-3 Who Reports • South Dakota Codified Law 26-8A-8 Who To Report To • South Dakota Codified Law 26-8A-9 Who Investigates • South Dakota Codified Law 26-8A-13 Confidentiality • South Dakota Codified Law 26-8A-14 Immunity

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Reference

Child Safety - A Guide for Judges and Attorneys https://www.americanbar.org/content/dam/a ba/uncategorized/child-safetyguide.authcheckdam.pdf

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Intake Process

• Centralized since 2015 • Twelve Intake Specialists • 1-877-244-0864 from 8-5 PM, Monday-Friday • After business hours – Emergency Response

•

.

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Reporters • Mandatory Reporters

Mandatory Report Training http://dss.sd.gov/childprotection/

• Anonymous Reporters • Community Reporters

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Screening Request for Services • Standardized Screening Guidelines • Assign to IFA • Immediate response • 0-3 day response • 0-7 day response • Screen out • Cross reporting to law enforcement

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Initial Family Assessment Initial Family Assessment process • Maltreatment Finding • Determination of Danger • Present Danger Plan • Protective Custody • LE or Court Order • ICWA requirements • Interviews/Observations • Criminal Investigation

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Initial Family Assessment Potential outcomes • Case Closed •

Referral to Community Services

• Safety Plan Determination and Conditions for Return • Court v. No Court • Placement – A/N Petition • In-Home Services 10

What we are seeing • Chemical/Substance Abuse – high numbers in SD • Children left with unsafe or unknown caretakers • Children exposed to illegal drug activity • Violence • Sexual Abuse • Incarceration of parents 11

Ongoing Services • Court and Non-Court • Safety Planning • Safety Plan Determination and Conditions for Return • Protective Capacity Assessments • Case Planning for parents • Child Case Planning

12

Permanency and Wellbeing of Children • Reunification – 72% in SD • Goal of reunification within 12 months of placement

• Compelling reasons to go beyond • Systemic delays – very damaging to children and families

• Guardianship, placement with a relative, and transition to adulthood.

• Termination of parental rights • Adoption • ICWA

13

Foster One

http://fosteronesd.org/ Thank you!

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Q&A Program During Lunch Lunch – Sponsored by CLE Committee

Pediatric Forensic Interviewer: Working with Traumatized Children in the Court Room Brandi Tonkel, Children’s Home Society

Brandi Tonkel

Brandi Tonkel currently works full time as the lead forensic interviewer for the Children’s Home Child Advocacy Center (CHCAC) in Rapid City, South Dakota, serving local, state, federal, and tribal jurisdictions. Brandi has completed over 1,600 forensic interviews since joining the CHCAC family in 2010.

Brandi has attended forensic interviewing training at the National Child Advocacy Center, advanced forensic interviewing training at the NCAC, leadership trainings and advanced forensic interviewing conferences. To stay on top of her game, Brandi has participated in hundreds of hours of specialized training by nationally recognized experts in the field of forensic interviewing and child abuse related issues, as well as participating in monthly national and statewide peer review with forensic interviewers from across the country with the Midwestern Regional CAC and within South Dakota, in addition to a national mentoring and consultation group for forensic interviewers with NCAC. Brandi has recently began providing presentations and training to local professionals and community members on recognizing and responding to child abuse, as well as other areas involving child abuse and prevention. ď‚šContact information-716-1628 ď‚šBrandi.Tonkel@chssd.org

Working with Children in the CourtroomBrandi Tonkel, Lead Forensic Interviewer Objectives •

Discuss Trauma

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Questioning Children

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Barriers and Challenges

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Tips

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Questions

Adverse Childhood Experiences •

Trauma is a largest public health epidemic of our time.

•

Memories are stored in our body.

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Language is shaped by experience.

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Trauma and Brain Development.

Goals of Questioning •

Effectively communicating questions.

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Understanding responses.

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Assess Competency.

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Overcoming Obstacles.

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Reduce Trauma.

Guidelines for Age Appropriate Questions •

Developmental NOT chronological age.

Question Types

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Open Ended-Narrative Invitation

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Funneling

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Focused

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Forced choice

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Leading

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Suggestive

Considerations

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Rapport/Narrative practice.

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Use simple language.

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Speak slowly.

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Be at child’s level physically.

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Echo a child’s words; find out their meaning for specific words.

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Scaffold Questions.

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Comfort/fidget item.

Communication Barriers •

Time

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Was that before nap…or after?

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Multiple Events

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How many times did he put his penis there?

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Pronouns

•

Minimize Misunderstanding

Cautions •

Avoid adult words.

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Don’t interrupt.

•

Don’t stand over the child or sit behind a desk.

•

Avoid long, complex sentence structure.

•

No multiple ???’s.

Panel Discussion: Best Practices | FQA for A&N Manual Hon. Patty DeVaney, 6th Circuit; Hon. Robert Gusinsky, 7th Circuit; Lisa Fleming, Brandi Tonkel

Hon. Patty DeVaney Patricia (Patty) DeVaney is a Circuit Judge in the Sixth Circuit, based in Pierre. Judge DeVaney presided over the Hughes County Juvenile docket for six years, in which the vast majority of A & N cases in the Sixth Circuit are filed. Patty grew up in rural Hand County, graduated from Polo High School, and obtained her Bachelor’s Degree at the University of South Dakota, majoring in Political Science. She obtained her law degree from the University of Virginia in 1993. After law school, Patty started out as an appellate lawyer at the S.D. Attorney General’s office, then quickly moved into the Litigation Division, where she spent the next 17 years as a trial lawyer, prosecuting serious felony cases. She also represented the State and government officials in complex civil litigation. Judge DeVaney was appointed to the bench in 2012 by Governor Dennis Daugaard. In addition to presiding over the Hughes County A & N cases, Judge DeVaney has presided over all types of cases, including criminal, civil and juvenile cases, in several of the western counties in the Sixth Circuit, including Bennett, Jackson, Haakon, Lyman and Stanley counties.

Lisa Fleming Lisa Fleming has over 29 years of experience in Child Protection Services in South Dakota. Prior to becoming Region 1, Regional Manager in 2015, she was a supervisor primarily in front-end services such as Initial Family Assessment, On-going services, Kinship Locator, Family Group Conferencing, and Team Decision Making.

Currently, Lisa is responsible for the management of 64 employees which includes eight supervisors, 43 family services specialists, seven social services aides, and six secretaries. Lisa has been active in the professional community. She participated in a community task force for the development of the Child Advocacy Center of the Black Hills and then served on the advisory board. She has also been active in the development and implementation of new practice models such as the Comprehensive Safety Intervention process in South Dakota. For two years, Lisa was a contractor for the nationally known ACTION for Child Protection Incorporation which has assisted multiple States, including South Dakota, in their development and implementation of safety practice models. Lisa participated on the National Resource Center for In-home Services Advisory Board for five years. Lisa was nominated and participated as a member of the Children’s Bureau, Health and Human Services Centennial Workgroup which developed the Voices to Vision, The Future of Child Welfare in America. This work is becoming reality through the reshaping of child welfare in the United States to focus on strengthening families through primary prevention of child maltreatment and necessary parent-child separation.

Brandi Tonkel

Brandi Tonkel currently works full time as the lead forensic interviewer for the Children’s Home Child Advocacy Center (CHCAC) in Rapid City, South Dakota, serving local, state, federal, and tribal jurisdictions. Brandi has completed over 1,600 forensic interviews since joining the CHCAC family in 2010. Brandi has attended forensic interviewing training at the National Child Advocacy Center, advanced forensic interviewing training at the NCAC, leadership trainings and advanced forensic interviewing conferences. To stay on top of her game, Brandi has participated in hundreds of hours of specialized training by nationally recognized experts in the field of forensic interviewing and child abuse related issues, as well as participating in monthly national and statewide peer review with forensic interviewers from across the country with the Midwestern Regional CAC and within South Dakota, in addition to a national mentoring and consultation group for forensic interviewers with NCAC. Brandi has recently began providing presentations and training to local professionals and community members on recognizing and responding to child abuse, as well as other areas involving child abuse and prevention.  Contact information-716-1628  Brandi.Tonkel@chssd.org

Representing Juvenile Defense Joana Lawler, Public Defender’s Office

Joanna Lawler Joanna Lawler is a supervising attorney at the Pennington County Public Defender’s Office, where she has been the primary juvenile defender since 2014. Joanna graduated cum laude from Northwestern University School of Law in Chicago, IL, where she was a member of the national moot court team and served on the board of the Journal of Criminal Law and Criminology. She completed the National Juvenile Defender Center’s Juvenile Training Immersion Program in the summer of 2016. Joanna received the Pennington County Bar Association’s Outstanding Young Lawyer of the Year award in 2017. She serves on South Dakota’s JDAI Statewide Steering Committee, the Midwest Juvenile Defender Center’s Advisory Board, and the Black Hills Community Theatre’s Board of Directors.

THE ROLE OF JUVENILE DEFENSE COUNSEL Joanna Lawler South Dakota State Bar Juvenile Law CLE December 7, 2018 Ramkota Hotel in Rapid City

Summary of Key ABA Model Rules of Prof. Conduct1 CLIENT-LAWYER RELATIONSHIP Rule 1.1: Competence •

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. o

Legal Knowledge and Skill • •

o

Thoroughness and Preparation •

o

Factors include the complexity of the matter, the lawyer’s general experience, the lawyer’s training/experience in the particular field. Comment 1.

Competent representation can be provided without specialized knowledge in the matter, so long as the lawyer does the necessary study. Comment 2.

Competent representation involves researching and studying the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. Comment 5.

Maintaining Competence •

Keeping abreast with changes in the law and its practice and complying with all continuing legal education requirements. Comment 6.

Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer •

The lawyer shall abide by a client’s decisions concerning the objectives and representation (e.g., plea to be entered, waiver of jury trial, testifying at trial) and shall consult with the client about the means to pursue those objectives. o

Exceptions: The lawyer may limit the scope of representation if the client gives informed consent; the lawyer cannot engage or assist a client in criminal or fraudulent conduct.

o

MODEL RULES OF PROF’L CONDUCT R. 1.1-.4, 1.6, 1.8(f), 1.14, 2.1, 3.3, 4.1 (2010), available at http://www.americanbar.org/groups/professional_responsibility/publications.html.

1

Rule 1.3: Diligence •

A lawyer shall act with reasonable diligence and promptness in representing a client. o o o o

Lawyer shall zealously pursue a matter on behalf of the client despite any barriers.

Comment 1.

Lawyer must control their caseload to be able to competently handle each matter.

Comment 2.

No procrastination on case matters. Comment 3.

Provide representation on the matter until its conclusion. Comment 4.

Rule 1.4: Communications •

A lawyer shall: o

Get client’s informed consent on decisions; keep him or her informed on matters in his or her case; consult with the client on the means by which to carry out objectives; promptly comply with the client’s requests for information; and inform the client of the lawyer’s limits of assistance on all matters regarding the case.

• This means that the lawyer must communicate with the client so that the client may meaningfully participate in his or her representation. Comment 1.

Rule 1.6: Confidentiality of Information a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted. b) Permitted disclosure: Revealing information that the lawyer reasonably believes necessary to: 1. prevent death or substantial bodily harm; 2. prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has been using the lawyer’s services; 3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of crime or fraud and in furtherance of which the client has been using the lawyer’s services; 4. obtain legal advice about lawyer’s compliance with the Rules; 5. to establish a claim or a defense should the lawyer face a criminal or civil charge in which the client was involved; or respond to allegations involving the lawyer’s representation of the client; 6. comply with other law or a court order.

•

The duty of confidentiality continues after the client-lawyer relationship has terminated.

Comment 18.

Rule 1.8(f) Conflict of Interest: Current Clients: Specific Rules •

A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

Rule 1.14: Client with Diminished Capacity •

When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

•

When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

COUNSELOR Rule 2.1: Advisor a) In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. o The client is entitled to straightforward and honest advice from the lawyer. Comment 1.

ADVOCATE Rule 3.3: Candor Toward the Tribunal a) A lawyer shall not knowingly: 1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable

remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

TRANSACTION WITH PERSONS OTHER THAN CLIENTS Rule 4.1: Truthfulness in Statements to Others •

In the course of representing a client, a lawyer shall not knowingly: a) make a false statement of material fact or law to a third person; or b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Juvenile Defense: Client Confidentiality, Rights, Process, and Penalties Contact Joanna Lawler, Pennington County Public Defender’s Office, with any questions about juvenile defense: joanna.lawler@pennco.org

•

•

•

•

Client confidentiality o Juvenile defense counsel is bound by attorney-client privilege and confidentiality. Attorneys should meet with their juvenile clients in a private location, away from parents or other observers. o There is no exception for parents. The parent is not your client (even if they are the ones paying you). Any other person, including parents, who hears the conversation between the client and attorney is NOT privileged, may repeat the conversation, and may be called as a witness against the client as to the conversation heard. o There is no exception for the client’s “best interests.” There is no exception to attorney-client privilege that allows disclosure to outside parties, even in pursuit of services, without that client’s express permission to disclose.

Duty to represent the client’s expressed interests o Juvenile defense counsel acts as the child’s voice in the proceedings, advocating for the client’s expressed interests, not the client’s “best interests” as determined by counsel, the child’s parent or guardian, the probation officer, the prosecutor, or judge. o Juvenile defense counsel must empower the client by providing them with complete information concerning all aspects of the case. Counsel’s advice to the client about likely advantages and disadvantages of different case scenarios must be legally comprehensive, candid, and relayed through age-appropriate language.

Rights o Right to consult an attorney ▪ If appointed at county expense, the charges become a lien against the property of the juvenile or parent. The Court may also order attorney fees be repaid by the juvenile as part of punishment imposed. o Right to a speedy adjudicatory hearing ▪ This is by judge alone, similar to a court trial – no jury trial right in juvenile cases o A denial of the Petition creates a presumption of innocence ▪ The burden is then on the State to prove the elements of the petition beyond a reasonable doubt using admissible evidence o Right to be present in person at all proceedings, with a parent, guardian, or custodian present (must be 18 years of age or older), and to have the proceedings closed to the public ▪ If the juvenile and/or guardian are not present, a warrant of arrest could issue o Right to confront witnesses ▪ Includes right to cross-examine the State’s witnesses o Right to have compulsory process served/call witnesses ▪ This is the right to subpoena witnesses to appear and testify on the juvenile’s behalf at an adjudicatory hearing, if those witnesses will not come willingly o Right against self-incrimination Admissions o Admitting to the Petition ▪ With an admission, the client waives the above rights, except the right to an attorney.

▪ Included rights you are waiving: • Right to be presumed innocent • Right to an adjudicatory hearing • Right to confront witnesses • Right to call your own witnesses • Right against self-incrimination ▪ A factual basis to support the admission must be provided

Pennington County Public Defender’s Office. Updated 2017. Information on this pamphlet is not a substitute for legal advice from an attorney.

Juvenile Defense: Client Confidentiality, Rights, Process, and Penalties Detention Hearing Advisory Hearing Continued Advisory Hearing/ Status Hearing(s) Admit

•

Final Disposition Delay (usually an Interim Disposition) if need evaluation, treatment, victim statements, social case study, etc.

Deny

•

• • •

•

Adjudicated

•

•

Adjudicatory Hearing Including motions, pretrial discovery, etc.

•

Final Disposition Delay (usually an Interim Disposition) if need evaluation, treatment, victim statements, social case study, etc.

•

Juvenile Diversion Upon juvenile’s motion or State’s recommendation and acceptance into program Usually community service, classes, and/or treatment No Finding of Delinquency/CHINS Case dismissed

Final Dispositions can be (from least to greatest): Probation — up to 6 months — can include: o Classes, evidence-based treatment, or evaluations deemed appropriate and necessary o Going to school and getting passing grades o Obeying parents and Court Services Officers; remaining on good behavior o Random tests for drugs and alcohol and random search and seizure of property o Fines, restitution, and/or attorney’s fees o Community service o Other conditions by the court, such as no gang activities, no contact orders, employment JIP (Juvenile Intensive Probation) — up to 12 months JSC (Juvenile Services Center)—short term—up to 90 days at a time—usually in combination with Probation, JIP, or DOC DOC (Department of Corrections—long term) o The court must first make a finding that DOC is the least restrictive alternative, that no viable alternative exists, and that the juvenile committed a qualifying offense – see SDCL § 26-8C-7(10) o DOC can maintain custody up to the age of 21

Pennington County Public Defender’s Office. Updated 2017. Information on this pamphlet is not a substitute for legal advice from an attorney.

Survey

You will be receiving a survey regarding this CLE near the end of the program to the email you registered with (from Nicole.Ogan@sdbar.net). We appreciate you filling this out as we are always working to improving our programming!

Thank you!