practice bar exam performance test
To: Leslie Kelleher
Re: In re Christopher Small
Role of Guardian Ad Litem
On July 29, 1997, you were appointed as guardian ad litem for Christopher Small by Judge Sharon Rosen. In the capacity as guardian ad litem, you are Christopher’s attorney, charged with faithfully representing his interests in the same way that a parent would (Code of Columbia Section 9; Ruffin v. State).
Specifically, Columbia Rules of Court Rule 8 requires you to represent Christopher’s legitimate interests; vigorously represent the child; fully protect his interests and welfare; and advise the court of his wishes if his wishes conflict with your opinion about his interest and welfare.
Case law expands on these statutory duties by requiring you to be discreet and proper (Ruffin v. State). Even though Christopher is a minor, you should discuss with him the matter for which you have been appointed, in order to inform him that you are his attorney, and to determine what his interests are. Christopher also has a due process right to be informed of hearings, and the right to obtain counsel of his choosing. While these rights have only previously been held to apply to adult prisoners, I see no reason why Christopher can’t be apprised of these facts, even though he is only 10 years old.
You are also required to make a thorough, bona fide investigation of the facts surrounding this matter (Ruffin v. State).
To: Leslie Kelleher
Re: In re Christopher Small
The purpose of this Case Plan is to set forth the steps you should take, in the proper order, to handle this case from beginning to end.
The goal in this case is to represent the best interests of Christopher Small. Depending on the facts yet to be developed, that interest may be continued placement with his current foster parent, placement with his grandparents, or placement with new foster parents.
1. Determine the interests of Christopher
The first issue that should be determined is the wishes of Christopher. While he is only 10 years old, his desire as to placement may be considered by the court. As his attorney, we should determine what his wishes are, so that we can best represent those wishes to the court on his behalf.
On July 28, 1997, Chris indicated to his emergency foster care custodians that he wishes to speak with his attorney. We should first contact Chris’ temporary guardians and find out if they are amenable to you visiting Chris. If they are, then you should schedule a time to meet with him immediately. If they are not amenable to you meeting with Chris, we should determine what legal right, if any, Chris has to have contact with his attorney/guardian ad litem while he is in emergency placement, and assert those rights for Chris so that you can have contact with him as soon as possible. We can find information about those rights in the computer law library, or by calling his social worker, who may be familiar with such rights.
2. Explore increased visitation
If Chris wants to have more contact with his foster parent, Frances Melton, and you feel that is in his best interest based on the factual research outlined below, you should advocate for increased visitation. He is currently seeing Frances once per week. Such little contact could potentially be harmful to his mental state. If Frances does in fact pose a threat to Chris, supervised visitation should be arranged. If DSS is not amenable to increasing visitation, we will need to request a court order along those lines.
In support of that order, we will want to get the report of a phsychiatrist saying that increased visitation is in Chris’ best interests. According to the order issue 8/12/97, you have full access to Chris’ records, including mental exams. There may be information in there to support increased visitation. Chris is currently undergoing psychological evaluation at his current location, the St. Thomas Home. We should talk to that psychiatrist about increasing his visitation with his foster mother, and what he feels would be in Chris’ best interests.
3. Determining if Chris’ due process rights were complied with
If we decide that it is in Chris’ interests to remain placed with his foster parent, Frances, one way to attack the removal from the foster home is on procedural grounds. O the other hand, if we find that removal from Frances’ home is in his best interests, we nonetheless want to make sure that Chris’ due process rights are complied with so that we make sure he is treated fairly and equally.
Code of Columbia section 206.1 authorizes removal of a foster child from his foster home only in compliance with sections 248.9 and 251.
Compliance with Section 248.9
Section 248.9 allows removal of Christopher for up to 72 hours (96 hours if it falls on a weekend) by Child Protective Services (CPS) if the foster parent present an imminent danger to the child’s life or health, a court order is not immediately obtainable, and the guardians are notified immediately that the child is in custody. Within 72 hours of removal, an emergency removal order under Section 251 must be obtained unless removal was ordered following a Section 252 hearing.
Based on the documents we have, it appears Section 248.9 was not complied with. Chris was removed on July 22, but no hearing took place until July 29, 1997. We should determine from DSS and the court whether a court order was immediately available on that day. We should ask Francis when she was notified that Chris was removed, or if Chris was removed in her presence.
The hearing before Judge Rosen was more than 72 hours after July 22, and therefore that delay appears to be a violation of Chris’ rights. We should ask DSS and the court if there were any other hearings held prior to July 29, and if so, get a copy of those orders from DSS and the court.
Compliance with Section 251
Section 251 allows for an ex parte emergency removal order upon petition supported by affidavit or sworn testimony in person before the judge establishing why the removal is necessary. We should contact the court for a copy of this order, if one was in fact issued. If one was not issued, that will provide additional grounds for reversing the custody order. We should also ask DSS for a copy of the affidavit, if one was provided. The affiant is required to determine if alternative less drastic measures than removal would be proper. We should find out what alternatives were considered, if any.
In order to comply with Section 251, the court must find reasonable efforts have been made to prevent removal, including prior notice to the foster parent, allowing the foster parent to attend the hearing. We should ask Frances if she was given notice of the hearing, and if she attended.
The court is required to consider placement of the child with nearest kin. Chris has grandparents in Middletown, Columbia. We should find out how far that is from here, and ask DSS if placement with the grandparents was considered. Based on the July 24 DSS report, it seems that such placement was not considered.
Based on the facts that we have, it looks doubtful that this law was complied with.
Problems with DSS reports
Several of the DSS reports seem to have errors and omissions in them that may have led the judge to erroneously allow Chris’ removal. The Foster Care Service Plan dated July 24, 1997 omits information in the first two questions, and is vague as to target dates for future plans in placing Chris in a perminant home (question 9). We should ask DSS why these reports are vague, and raise this issue with the court to ensure that the court is aware that DSS may not have made a complete investigation prior to removing Chris from his home.
4. Make an independent investigation of the facts
Powell v. Columbia DSS interpreted Section 206.1 to require that the children be kept in a stable home whenever possible, and that no change in placement should be made without a court order. The court said that such a change is grave, drastic, and often irreversalble. The DSS has the burden of proof by clear and convincing evidence.
As Chris’ attorney, you should make an independent investigation of the facts which DSS alleges in their reports. This will allow us to determine if DSS has met its burden, and whether a change in Chris’ placement is in fact warranted.
It seems clear from your own contact with Francis Melton and from the DSS reports that she is treating Chris in a way that does not comply with the DSS requirements. She admitted to you that she spanks him, and does not deny putting hot pepper sauce in his mouth as punishment. We should investigate the law to see if the DSS regulation prohibiting corporal punishment would encompass putting hot pepper sauce in the child’s mouth. Even if it does not, such punishment is likely to still constitute abuse. We should research case law on the computer and see if there is any support for or against this.
She also admits that she makes him street preach. The preaching is probably not in violation of the DSS regulations - Powell v. Columbia did not consider that issue. There may be other cases which are on point, and we should look on the computer library to see if we can find relevant cases.
Mrs. Wolf noticed bruises and abraisions on Chris’ knees and elbows. While these could easily be from the playground, we should ask Mrs. Wolf, his teachers and doctors if they have ever noticed anything unusual on Chris’ body that would indicate abuse. Terry Bagley, the neighbor, said she didn’t think there were any signs of abuse. We should ask her how much contact she has with Chris, to see how knowledgeable she is about this issue.
Frances said that she was “at the end of her rope” and that the teacher and minister encouraged her to punish Chris more. Francis may simply need to take a parenting class or anger management class to learn how to better cope with Chris. The court may allow Chris to remain with her if she attends such a class. On the other hand, there may be documentation of prior incidents of Frances reaching the “end of her rope.” Chris has a right to view his school file, so we should take advantage of that and see if any previous teachers have noted concern about Chris’ well being in Frances’ care. His medical records may have similar notes.
All of this research should be completed by August 12, 1997, when you will appear before Judge Rosen on the issue of removal of Christopher from Frances’ foster home. Depending on whether you support or oppose the removal (i.e. whether such removal is in Chris’ best interests), the above research will be necessary to making such a decision and advocating for Chris’ rights and in his best interests.