ABOUT THE EDITORS Donald N. Duquette, J.D., Clinical Professor of Law Emeritus at the University of Michigan Law School, founded the Child Advocacy Law Clinic in 1976, the first clinical law program in the United States devoted to child abuse and neglect and child welfare issues. His 1990 book, Advocating for the Child in Protection Proceedings, formed the conceptual framework for the first national evaluation of child representation as mandated by the U.S. Congress. During a leave from the Michigan Law School, he managed an expert work group for the U.S. Children’s Bureau and drafted Permanency for Children: Guidelines for Public Policy and State Legislation as part of President Clinton’s Adoption 2002 Initiative. Don initiated and was co-director of a National Association of Counsel for Children project to develop a national certification program in child welfare law, which gained American Bar Association accreditation in February 2004 and is now available as a specialty in over 40 states with about 600 lawyers certified as Child Welfare Law Specialist. Recently Don was Director of the National Quality Improvement Center for Child Representation in the Child Welfare System (QICChildRep), funded by the U.S. Children’s Bureau for the purpose of creating new knowledge and building a national consensus around the role of the child’s lawyer in child welfare cases. The QIC-ChildRep results are in, including some of the first empirical evidence on lawyers representing children. These findings form the basis of a new book: CHILDREN’S JUSTICE: How to Improve Legal Representation of Children in the Child Welfare System.
Ann M. Haralambie, J.D., CWLS, is a Certified Family Law Specialist, Arizona Board of Legal Specialization, Certified Child Welfare Law Specialist, NACC, and a Martindale-Hubbell AV® Preeminent™ rated attorney in private practice in Tucson, Arizona since 1977. Her practice is restricted to family and child welfare cases, with an emphasis on custody and child abuse. She is the author of numerous articles, book chapters, and books, including the three volume treatise, Handling Child Custody, Abuse and Adoption Cases, 3d (Thomson West), Child Sexual Abuse in Civil Cases: A Guide to Custody and Tort Actions (American Bar Association), and The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases (American Bar Association). Ms. Haralambie was on the drafting committees for the American Bar Association’s Standards of Practice for Lawyers Who Represent Children in Child Abuse and Neglect Cases, the Standards of Practice for Lawyers Who Represent Children in Custody Cases, and the Standards of Practice for Lawyers Who Represent Parents in Child Abuse and Neglect Cases. She was the ABA Advisor to the National
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Conference of Commissioners on Uniform State Laws, Drafting Committee on Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act and the ABA Family Law Section Advisor to the NCCUSL Drafting Committee on the Uniform Taking Testimony from Children Act. She is an active national and international speaker on legal topics dealing with custody and child welfare law. Ms. Haralambie is the recipient of several awards, including the Arizona Council of Attorneys for Children Child Advocacy Award, ABA YLD Child Advocacy National Certificate of Recognition, and the ALI-ABA Harrison Tweed Special Merit Award. She is a past president and former board member of the NACC and is the ABA Family Law Section liaison to the Commission on Youth at Risk.
Vivek S. Sankaran, J.D., CWLS, advocates for the rights of children and parents involved in child welfare proceedings. His work focuses on improving outcomes for children in foster care by empowering their parents and strengthening decision-making processes in juvenile courts. A clinical professor of law at the University of Michigan Law School, Professor Sankaran directs both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic, through which law students represent children and parents in trial and appellate proceedings. Professor Sankaran has written numerous articles focused on improving the child welfare system and has litigated cases before the Michigan Supreme Court. In addition, he conducts state and national trainings and works on child welfare initiatives with various national groups including the American Bar Association, Casey Family Programs, and the National Center for State Courts. After graduating from Michigan Law in 2001, Professor Sankaran received a Skadden Fellowship to represent children at The Children’s Law Center in Washington, D.C., where he remained until 2005 when he joined the Law School faculty. In 2009, Professor Sankaran founded the Detroit Center for Family Advocacy, the first organization in the country to provide multidisciplinary legal assistance to families to prevent the unnecessary entry of children into foster care. In 2011, he was named Michigan’s Parent Attorney of the Year. Most recently, Professor Sankaran co-edited both the first national book for family defense lawyers and the third edition of Child Welfare Law and Practice, a widely recognized resource used by child welfare lawyers across the country.
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CONTRIBUTING AUTHORS Lauren Girard Adams, J.D., is a family mediator in Vermont and New Hampshire. Lauren is a recent co-chair of the Children’s Rights Litigation Committee of the American Bar Association, Section of Litigation. As a Clinical Assistant Professor at the Northwestern Pritzger School of Law, Lauren also represented young clients in school expulsion and juvenile delinquency proceedings in Chicago, Illinois. LaShanda Taylor Adams, J.D., is Associate Professor, University of the District of Columbia David A. Clarke School of Law. Donald C. Bross, J.D., Ph.D., is Professor of Pediatrics (Family Law), University of Colorado School of Medicine, and Director of Education and Legal Counsel for the Kempe National Center for the Prevention and Treatment of Child Abuse and Neglect (bross.donald@tchden.org). He is the Founder and Director Emeritus of the National Association of Counsel for Children. Antonia E. Chiesa, M.D. is certified in Pediatrics and Child Abuse Pediatrics. She is an Assistant Professor at the University of Colorado School of Medicine and an attending physician on the Kempe Child Protection Team. Richard Cozzola, J.D., is an attorney and the Director of the Children & Families Practice Group at LAF. He has practiced, presented, and authored in the areas of delinquency, dependency, education, and poverty law. Melanie Delgado, J.D., is an attorney at the Children’s Advocacy Institute (CAI), and director of Transition Age Youth Projects. Donald N. Duquette, J.D., is Clinical Professor of Law and Director Emeritus of the Child Advocacy Law Clinic of the University of Michigan Law School. Alberta J. Ellett, MSW, Ph.D., is a Professor and Director of the Child Welfare Education Program, University of Georgia, School of Social Work. She has 25 years of direct practice experience in child welfare. She completed, with Sue Steib, MSW, Ph.D., a 1999 statewide study of Child Welfare & the Courts. They observed over 250 court hearings and interviewed judges, attorneys, and child welfare staff. She has served as the Editor of the Journal of Public Child Welfare since 2007. Her primary research focus is on professionalizing the child welfare workforce.
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Robert C. Fellmeth, J.D., is the Price Professor of Public Interest Law, University of San Diego School of Law, and Executive Director of the Children’s Advocacy Institute. Lisa Aronson Fontes, Ph.D., has dedicated two decades to making the mental health, social service, and criminal justice systems more responsive to culturally diverse people. Her most recent books are: Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship, Interviewing Clients Across Cultures: A Practitioner’s Guide, and Child Abuse and Culture: Working with Diverse Families. She is a Senior Lecturer at the University of Massachusetts Amherst. She has worked as a family, individual, and group psychotherapist, and has conducted research with diverse populations in the United States and Latin America. She earned her doctorate in Counseling Psychology. Kathryn E. Fort, J.D., is the staff attorney at the Indigenous Law and Policy Center at Michigan State University College of Law and runs the Indian Child Welfare Act Appellate Clinic. Matthew L.M. Fletcher, J.D., is Professor of Law at Michigan State University College of Law, appellate judge for several Indian nations, author of a hornbook, Federal Indian Law (West 2016), and editor of an edited collection of essays on the Indian Child Welfare Act with Kathryn Fort and Wenona Singel (MSU Press 2009). Sharlyn Grace, J.D., is an attorney based in Chicago, IL. She works on issues related to juvenile justice, criminal records, restorative justice, and criminal legal system reform. Gene Griffin, J.D., Ph.D., is an attorney and clinical psychologist. He is a retired faculty from Northwestern University Feinberg School of Medicine who currently serves as the Director of Research for the ChildTrauma Academy. The opinions expressed are his and not necessarily those of Northwestern or CTA. Josh Gupta-Kagan, J.D., is an assistant professor at the University of South Carolina, where he teaches courses in children’s law and is a faculty member in the law school’s Children’s Law Concentration. Erin Han, J.D., has represented foster children in educational matters in California and Illinois and has presented and published nationally in the field of education law. She is currently employed by the UCLA School of Law.
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Contributing Authors
Ann M. Haralambie, J.D., CWLS, is a certified family law specialist and certified child welfare law specialist practicing in Tucson, Arizona. She is also an author and speaker in the fields of family and children’s law. Joshua Kay, Ph.D., J.D., is Clinical Assistant Professor in the Child Advocacy Law Clinic at the University of Michigan Law School and is also a licensed psychologist. Kristin Kelly, J.D., is a senior attorney with the American Bar Association Center on Children and the Law and works on the Legal Center for Foster Care and Education, a project focused on transforming systems and improving law and practice to create better educational outcomes for students in foster care. Laura van Dernoot Lipsky is the Founder and Director of The Trauma Stewardship Institute (www.traumastewardship.com) and the author of Trauma Stewardship: An Everyday Guide to Caring for Self While Caring for Others. Steven Lubet, J.D., is Williams Memorial Professor of Law and Director of the Bartlit Center for Trial Strategy at Northwestern University School of Law in Chicago, Illinois. Therese Roe Lund, M.S.S.W., is Director of Program and Staff Development for ACTION for Child Protection, Inc. Thomas D. Lyon, J.D., Ph.D., is the Judge Edward J. and Ruey L. Guirado Chair in Law and Psychology at the USC Gould School of Law. Michelle Marlowe, M.S.W., L.C.S.W., graduated from the Smith College School of Social Work and is a Clinical Supervisor for the IMHOFF Clinic at the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect. Kathleen McNaught, J.D., is an assistant director at the American Bar Association Center on Children and the Law and directs the Legal Center for Foster Care and Education, a national technical assistance resource and information clearinghouse on legal and policy matters affecting the education of children and youth in foster care. John E. B. Myers, J.D., is Professor of Law at University of the Pacific, McGeorge School of Law.
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Kelly Browe Olson, J.D., LL.M., is an Associate Professor of Law and Director of the Clinical Programs at the University of Arkansas at Little Rock Bowen School of Law. Bernard P. Perlmutter, J.D., is Co-Director and Clinical Professor at the Children & Youth Law Clinic, University of Miami School of Law. Clark Peters, J.D., A.M., Ph.D., is an Assistant Professor at the University of Missouri. Steven Pick, J.D., is a Senior Attorney at the LAF (Legal Assistance Foundation) in Chicago practicing in child welfare and education law. He is also a speaker in the field of children’s law. Jennifer Renne, J.D., is Director of the Child Welfare Capacity Building Center for Courts with the American Bar Association. Vivek S. Sankaran, J.D., CWLS, is a clinical assistant professor of law in the Child Advocacy Law Clinic and Director of the Detroit Center for Family Advocacy. Professor Sankaran’s research and policy interests center on improving outcomes for children in child abuse and neglect cases by empowering parents and strengthening due process protections in the child welfare system. Professor Sankaran sits on the Steering Committee of the ABA National Project to Improve Representation for Parents Involved in the Child Welfare System and chairs the Michigan Court Improvement Project subcommittee on parent representation. Brooke Silverthorn, J.D., is a staff attorney at the National Association of Counsel for Children. Brooke directs the Policy/Advocacy Committee at the NACC and also serves as a national child welfare law trainer and curriculum developer. Brooke has been a Child Welfare Law Specialist since 2010. Prior to her current position as staff attorney at the NACC, she served as a Special Assistant Attorney General, representing the Gwinnett County, Georgia Department of Family and Children Services for 8 years. She has served as a lecturer for the Emory University Summer Child Advocacy Program and as a trainer for the Child Welfare Legal skills training program in Atlanta, GA. Janet Stotland, J.D., was previously the co-director of the Education Law Center (PA).
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David B. Thronson, J.D., is Professor of Law and Associate Dean for Experiential Education at the Michigan State University College of Law. Veronica T. Thronson, J.D., is Associate Clinical Professor of Law and Immigration Law Clinic Director at the Michigan State University College of Law. Casey Trupin, J.D., works on youth homelessness issues for the Seattle-based Raikes Foundation. Prior to that, he directed the Children & Youth Project at Columbia Legal Services, working on local, state, and national reforms for children living in poverty through litigation, legislation, education, and other advocacy. Frank E. Vandervort, J.D., is Clinical Assistant Professor of Law at the University of Michigan Law School where he teaches in the Child Advocacy Law Clinic and the Juvenile Justice Clinic, teaches Juvenile Justice, and consults with the School of Social Work on child maltreatment issues. He is co-author of K. Staller, K. C. Faller, F. Vandervort, W. C. Birdsall & J. Henry, Seeking Justice in Child Sexual Abuse: Shifting Burdens & Sharing Responsibilities (Columbia University Press 2010). Marvin Ventrell, J.D., is the Executive Director of the Juvenile Law Society (JLS) in Denver, CO, www.juvenilelawsociety.org. He was the CEO of the NACC from 1994 to 2009.
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LIST OF CHAPTERS I. THE CONTEXT OF CHILD WELFARE LAW Chapter 1
THE CONTEXT OF CHILD WELFARE LAW ........................... 1 Clark Peters
Chapter 2
PHYSICAL, SEXUAL, AND EMOTIONAL CHILD ABUSE AND NEGLECT ............................................................... 15 Ann M. Haralambie Antonia E. Chiesa
Chapter 3
MENTAL HEALTH EVALUATIONS IN CHILD WELFARE SETTINGS .................................................................. 45 Joshua Kay
Chapter 4
CHILD DEVELOPMENT AND THE IMPACT OF ABUSE AND NEGLECT ............................................................... 69 Gene Griffin
Chapter 5
INVESTIGATIVE INTERVIEWING OF THE CHILD ............. 87 Thomas D. Lyon
Chapter 6
INTERVIEWING AND COUNSELING LEGAL CLIENTS WHO ARE CHILDREN ............................................ 115 Ann M. Haralambie Lauren Adams
Chapter 7
FAMILY DYNAMICS AND TREATMENT OF CHILD ABUSE AND NEGLECT ............................................... 131 Donald C. Bross Michelle Marlowe
Chapter 8
CONSIDERING CULTURE IN CHILD ABUSE AND NEGLECT PRACTICE: TIPS FOR ATTORNEYS ........ 151 Lisa Aronson Fontes
Chapter 9
SECONDARY TRAUMA AND SELF-CARE ........................... 175 Laura van Dernoot Lipsky with Connie Burk Edited by Vivek Sankaran
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II. LEGAL FRAMEWORK Chapter 10
THE HISTORY OF CHILD WELFARE LAW ........................ 189 Marvin Ventrell
Chapter 11
FEDERAL LEGISLATION PROTECTING CHILDREN AND PROVIDING FOR THEIR WELL-BEING .............................................................................. 231 Frank E. Vandervort
Chapter 12
U.S. SUPREME COURT CASES REGARDING CHILD WELFARE ...................................................................... 275 Ann M. Haralambie
Chapter 13
THE INDIAN CHILD WELFARE ACT .................................... 311 Matthew L.M. Fletcher Kathryn E. Fort
III. THE CHILD WELFARE LEGAL PROCESS Chapter 14
CHILD PROTECTIVE SERVICES MALTREATMENT INVESTIGATION/ASSESSMENT: AN OVERVIEW FOR ATTORNEYS ...................................................................... 337 Alberta J. Ellett
Chapter 15
CHILD SAFETY: WHAT JUDGES AND LAWYERS NEED TO KNOW ......................................................................... 353 Therese Roe Lund Jennifer Renne
Chapter 16
DUE PROCESS OF LAW AND CHILD PROTECTION ........ 387 Josh Gupta-Kagan
Chapter 17
A CHILD’S JOURNEY THROUGH THE CHILD WELFARE SYSTEM ................................................................... 419 Ann M. Haralambie Donald N. Duquette
Chapter 18
CASE ASSESSMENT AND THEORY ....................................... 449 Ann M. Haralambie
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List of Chapters
Chapter 19
INTERSTATE AND INTERNATIONAL ISSUES .................... 469 Ann M. Haralambie
Chapter 20
CONFIDENTIALITY ................................................................... 493 Ann M. Haralambie
Chapter 21
COLLATERAL PROCEEDINGS ............................................... 521 Ann M. Haralambie Erin Han Sharlyn Grace Steven Pick Richard Cozzola
Chapter 22
IMMIGRATION ISSUES — REPRESENTING CHILDREN WHO ARE NOT UNITED STATES CITIZENS ...................................................................................... 557 David B. Thronson Veronica T. Thronson
Chapter 23
ADVOCACY FOR FOSTER YOUTH IN MENTAL HEALTH COMMITMENT PROCEEDINGS .......................... 575 Bernard P. Perlmutter
Chapter 24
ADVOCATING FOR EDUCATIONAL SUCCESS FOR CHILDREN IN FOSTER CARE ....................................... 607 Kristin Kelly Kathleen McNaught Janet Stotland
Chapter 25
FOSTER YOUTH: TRANSITIONING FROM FOSTER CARE INTO SELF-SUFFICIENT ADULTHOOD ............................................................................... 641 Melanie Delgado Robert C. Fellmeth
Chapter 26
FAMILY-CENTERED DECISION-MAKING AND ALTERNATIVE DISPUTE RESOLUTION .............................. 675 Kelly Browe Olson
Chapter 27
ESTABLISHING LEGAL PERMANENCE FOR THE CHILD .................................................................................. 701 LaShanda Taylor Adams
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Chapter 28
CHILD WELFARE APPELLATE ADVOCACY ..................... 731 Vivek S. Sankaran
IV. THE ROLE AND DUTIES OF LEGAL COUNSEL Chapter 29
AGENCY REPRESENTATION IN CHILD WELFARE PROCEEDINGS ........................................................................... 751 Brooke N. Silverthorn
Chapter 30
REPRESENTING PARENTS IN CHILD WELFARE CASES ............................................................................................ 767 Vivek S. Sankaran
Chapter 31
REPRESENTING CHILDREN AND YOUTH ......................... 817 Donald N. Duquette Ann Haralambie
V. COURTROOM ADVOCACY Chapter 32
CHILDREN IN COURT .............................................................. 857 John E. B. Myers
Chapter 33
SPECIAL EVIDENTIARY ISSUES ........................................... 895 John E. B. Myers
Chapter 34
TRIAL ADVOCACY .................................................................... 913 Steven Lubet John E.B. Myers
Chapter 35
SYSTEM AND POLICY ADVOCACY ...................................... 951 Casey Trupin
Appendix A ABA MODEL ACT GOVERNING THE REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND DEPENDENCY PROCEEDINGS ................ 965 Appendix B QIC BEST PRACTICE MODEL OF CHILD REPRESENTATION ................................................................... 981 Appendix C ABA STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES ........................................................................ 993
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List of Chapters
Appendix D ABA STANDARDS OF PRACTICE FOR ATTORNEYS REPRESENTING PARENTS IN ABUSE AND NEGLECT CASES ...................................................................... 1019 Appendix E ABA STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING CHILD WELFARE AGENCIES .............. 1065 SUBJECT INDEX ............................................................................................... 1095
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FOREWORD The National Association of Counsel for Children is proud to present this third edition of our “Red Book.� For some, this will be an introduction to what may become your life’s work. For many, the Red Book is a valued reference and support, as well as a spur to further research. We thank our accomplished editors and expert authors for an expanded, deepened look at the law employed in dependency court and the knowledge and skill required of attorneys and judges in our child welfare system. The impact of governmental interventions in the name of child protection is immense. Through court order, some 400,000 Americans under the age of 18 wake up each morning in the care of someone other than their parents. Our country has decided that we will respond to public expressions of concern regarding child safety and well-being, and our courts are charged with providing due process and oversight in these proceedings. Short of the death penalty, the removal of a child from his or her family of origin is the most intrusive intervention a government can make in the life of a family. There is no guarantee of return. It is also an absolutely necessary and appropriate intervention in some cases, which grants dependency courts great power and even greater responsibility. Attorneys zealously represent children, parents, and the state or county agency, and judges make decisions with lifelong implications. To do their jobs well, these professional need to understand both federal and state child welfare law. They also need to understand aspects of medicine, psychology, family systems and substance abuse treatment, to name just a few of the non-law challenges essential to better outcomes for kids and their families. This book is comprehensive, but the ever-changing complexity of family life and the confounding difficulty of public intervention in the private realm mean that the reading of any text is just a first step. Excellence in advocacy is an ongoing effort, and NACC was founded in 1977 to help you on that journey. Reach out to us, and to each other, for the sake of the vulnerable children, youth, and families that we all serve. Kendall Marlowe Executive Director National Association of Counsel for Children
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INTRODUCTION TO THE THIRD EDITION As I set myself to the task of framing an introduction to the “Red Book” for this third and final time, I cannot help but marvel at the progress of our field since Red Book I was published in 2005. The ABA had just recognized child welfare law as a distinct legal specialty in the previous year and NACC was just beginning to promote certification. Red Book I was the first framing of the competencies required in this new specialty and was initially conceived of as a study guide for persons taking the certification examination. We were struggling to define our practice and gain the respect and appreciation that our important and difficult work for children and families warranted. In 2005, we were progressing “from a cause to a profession.” In 2010, Red Book II consolidated some chapters, reorganized, and added 10 new chapters. The character of the Red Book was established as a book that discusses the law as it is or reasonably could be interpreted to be, rather than advocating for policy changes. The Red Book provided an overview of the field for the three major lawyer roles and for judges. We aspired, as we do now, to be the first step when a lawyer wants to refresh himself or herself on child welfare law or begin legal research on an issue. In our introduction to Red Book II we noted the different tone we could adopt. There was no need to press hard for recognition as a respected area of law practice. “The legitimacy and importance of our specialty is well established,” we wrote then. NACC certified its first Child Welfare Law Specialists in 2006 and certification had set down strong roots, recognized in 14 states, and expanding. The “Red Book” had become a standard resource across the country for lawyers representing children, parents, and the state child welfare agency. Law schools adopted the book for use in clinical and doctrinal courses. Now in 2016, our field has lost some of its self-consciousness. Of course “kiddie law” is real law. It is complex and challenging and attracts really good lawyers who stay in the field and develop considerable expertise. Lawyers report a high level of personal and professional satisfaction and feel that their work has a significant impact on the lives of the persons they represent. There are more than 600 Child Welfare Law Specialists across the country with NACC certification available in 43 jurisdictions. Empirical evidence is emerging that shows that competent legal representation improves court and agency decision-making, reduces the number of children who enter care without compromising safety, and results in quicker permanency for the children.
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In this Third Edition of Child Welfare Law and Practice, the “Red Book,” we offer 35 updated chapters, including two new chapters — one on Coping with Secondary Trauma and another on Systemic and Policy Advocacy. There are 35 different authors, some of whom are responsible for multiple chapters. There are an impressive 17 new authors making their first Red Book appearance in this edition. These experts are the leaders of our field and these robust numbers bode extremely well for the future of child welfare law. Our collective aspiration to see child welfare law achieve the level of recognition and respect enjoyed by our medical colleagues in pediatrics has been realized. We have witnessed a coming of age in our specialty, a growth in sophistication of law, courts and lawyers. But the real question is: are the children and their families that we serve better off? That is the question going forward. Too many children still go into foster care and they stay too long. Some children who need the attention and protection of the child welfare do not get it. Child welfare remains both over inclusive and under inclusive. America could nourish its children and its families far better than we do. Child welfare decisions would be made more carefully and much better than they are. But let’s take a moment to acknowledge the progress we have made. Yay! But now, let’s get on with it. There is much more to do. We hope this Red Book III helps. Donald N. Duquette, General Editor Founding Director, Child Advocacy Law Clinic, University of Michigan Law School Clinical Professor of Law Emeritus
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