NACC Files Brief Requesting Affirmance of Denial of Judicial Immunity
Rockett v. Eighmy
This appeal stems from a Missouri domestic relations matter in which the children, B.R. and K.R., stated that they did not wish to leave with their mother following a custody modification hearing and settlement. Upon hearing this, the judge chastised the children for their disagreement and then illegally held them for an hour in separate cells at the county jail. When threatened with the possibly of being placed in foster care, the children agreed to live with their mother. Months later, the same judge sua sponte issued a “Pick Up Order” for the children, who were living with their father in Louisiana. The children were taken to a juvenile detention center, strip-searched, and held in separate cells for two days.
B.R. and K.R.’s father, as next friend of his children, filed a complaint against the judge under 42 U.S.C. § 1983 in the Western District of Missouri. Finding that the judge was not entitled to judicial immunity, the district court denied his motion to dismiss. The judge filed an interlocutory appeal with the United States Court of Appeals for the Eighth Circuit.
NACC filed an amicus brief, arguing that the district court’s decision should be affirmed on several grounds. First, the children were not afforded due process before they were detained. Second, the judge did not carefully ascertain and give appropriate weight to the children’s custodial preferences. Third, the judge’s actions were not aligned with his responsibility as a family court judge “to facilitate consensual resolutions to the degree possible, while always safeguarding the rights, safety and well-being of children.” Lastly, NACC argued that the judge’s “actions in this case, if countenanced as a routine act of judicial authority,” raise concerns about the disproportionate and disparate treatment of youth of color who are involved with the court system.
On June 22, 2023, the United States Court of Appeals for the Eighth Circuit issued its opinion. The Eighth Circuit explained that when determining whether a judge is entitled to judicial immunity, the court must distinguish “between judicial acts and the administrative, legislative, or executive functions that judges may on occasion . . . perform.” The Eighth Circuit found that by personally escorting the children to jail and subsequently releasing them, the judge went beyond a judicial act and was, thus, not entitled to judicial immunity. It rejected the judge’s argument that he was exercising his contempt power because “the children were never parties, they never stepped foot in the courtroom, and [the judge] personally locked them up himself.” Nevertheless, the Eighth Circuit held that because the judge had jurisdiction to issue the pick-up order for the children, he is immune from civil suit on that ground. The Eighth Circuit “accordingly affirm[ed] in part, reverse[d] in part, and remand[ed] for further proceedings on the first of the two incidents.”
Building a Community Committed to Equity
This year marks the 45th Anniversary of the founding of the National Association of Counsel for Children. A nonprofit anniversary offers a time for celebration, and a perch from which to reflect on the past, assess the present, and set a course for the future.
NACC’s founders didn’t seek to build an office or an institution, but instead a profession and a network of colleagues that would serve children and advance the development of children’s law. Our profession has come a long way since the 1970s. NACC’s programs and influence have grown, as has our support for access to well-trained counsel for all parties in the child welfare system. NACC will recognize advances in access to justice and in the development of our field throughout this anniversary year.
But NACC will also recognize the many ways our profession, policies, and systems have yet to actualize access to justice for all whom we serve. A recent study of foster care data from 1961 to 2018 shows long-term inequities among children of different races and ethnicities, particular by region and state.[1] Inequity does not begin in the child welfare system,[2] but it is routinely exacerbated by it:
…children’s experience of living without parents under state supervision remains deeply divided by race, ethnicity, and geography. Because foster care has negative long-term causal effects at the margin of placement, and because state actors intervene disproportionately in marginalized families, inequality in this childhood experience is likely to contribute to stratification throughout the life course.[3]
As child welfare attorneys, we are placed at this precipice, positioned with power and responsibility. We cannot come into this profession to “help” and ignore the reality that many children and youth will face lifelong societal inequity from their foster care experience. Anti-racism strategies must be integrated into our daily practice to disrupt these negative outcomes. NACC’s Race Equity Hub is a great place to begin this work.
NACC is engaged in a refresh of our 2019-2023 Strategic Plan, to center our commitment to equity and constituent voice. Thank you to many of you who participated in our community survey to identify opportunities to help us identify concrete strategies to operationalize this commitment through practice and policy. We look forward to sharing more with you about this work in the coming months and year.
Thank you for your partnership in building a community committed to equity.
[1] Alexander F. Roehrkasse; Long-Term Trends and Ethnoracial Inequality in U.S. Foster Care: A Research Note. Demography 1 October 2021; 58 (5): 2009–2017. Available at: https://doi.org/10.1215/00703370-9411316
[2] Minoff, Elisa and Alexandra Citrin. “Systemically Neglected: How Racism Structures Public Systems to Produce Child Neglect.” Center for the Study of Social Policy, March 2022. Available at: https://cssp.org/resource/systemically-neglected/
[3] Roehrkasse, supra (internal references omitted).
NACC Joins Amicus Brief Against Application of Abstention Doctrine
Ashley W., et al. v. Eric Holcomb, et al.
The plaintiffs, children in the custody of Indiana’s Department of Child Services (DCS), filed suit against DCS, its director, and the Governor of Indiana, alleging several violations of their constitutional rights. A sub-class of the plaintiffs alleged that the defendants violated the Americans with Disabilities Act (ADA). The defendants filed a motion to dismiss on abstention grounds. The district court found that abstention did not apply. The defendants appealed the denial of their motion to dismiss to the United States Court of Appeals for the Seventh Circuit.
NACC, along with several other child advocacy partners, filed an amicus brief, arguing that abstention under Younger v. Harris, 401 U.S. 37 (1971) did not apply because the plaintiffs’ requested relief (hiring more qualified caseworkers, maintaining caseload standards, ensuring safe placements, placing siblings together, and providing adequate therapeutic services to disabled children) is “directed at the state’s executive, which bears a legal responsibility for children in foster care.” Thus, plaintiffs’ requested relief “will not unduly interfere with state-court proceedings.” Furthermore, amici contend that the overbroad application of Younger would prevent foster children and other plaintiffs from vindicating their federal rights. Accordingly, amici urge the Seventh Circuit to affirm the district court’s decision.
On May 16, 2022, the Seventh Circuit dismissed the plaintiff’s case, finding that all of their contentions “may be resolved by judges in CHINS proceedings. It follows that Younger and Moore v. Sims require the federal judge to abstain.” The Seventh Circuit also found that the plaintiffs sought relief related to the handling of child welfare investigations which does “not affect the status of the two remaining plaintiffs.” A request for panel re-hearing and en banc review was submitted but denied.
NACC Statement Opposing Efforts to Redefine Child Abuse to Include Gender Affirming Care
The National Association of Counsel for Children strongly opposes any efforts to change the definition of of child abuse to include “gender affirming care” as referenced by the Texas Attorney General’s non-binding opinion and Governor Abbott’s letter instructing the Commissioner of the Department of Family and Protective Services to investigate any such accusations.
These attempts to change the definition of child abuse in Texas do not create new law and are not legally binding. Instead, these so-called directives shamefully play politics with the health, safety, and wellbeing of transgender youth.
As an organization committed to advancing the rights, well-being, and opportunities of youth in child protection proceedings, we urge Texas leadership to reject attempts to use child abuse designations meant to shield children as swords that hold great potential to harm children.
NACC Executive Director Kim Dvorchak pens letter to the editor defending ICWA
George F. Will’s Jan. 6 op-ed on the Indian Child Welfare Act sidestepped important facts and used misleading storytelling to argue against this critical law.
Mr. Will’s tragic stories falsely imply increased danger to children placed with their parents or tribal kin. Unfortunately, children of all backgrounds experience harm inside and outside foster care. He suggested Brackeen v. Haaland hinges on safety. This case is an appeal of adoption decisions, not safety determinations.
Mr. Will protested “identity politics” while omitting the crux of the legal debate: The ICWA is a political classification, not a racial one. Tribal sovereignty must be respected as a means of self-determination for Native people to have a say in what happens to their children and families.
The question before the court is one of tribal sovereignty and cultural identity in healthy child development. The child welfare system disproportionately impacts Native American children, placing them in foster care at rates more than two times higher than their proportion of the population. As Canada recently recognized, many family separations are unnecessary. Cases from Pima County, Ariz., in which tribes are actively engaged have shown that children have better results under the ICWA.
The ICWA is gold-standard practice because it guards against unnecessary government intrusion, protects family relationships, and emphasizes familial and cultural identity. The Supreme Court should recognize the ICWA as a vital tool to address ongoing injustices against Native and non-Native children alike.
Kim Dvorchak, Denver
Kim’s letter was published in the Washington Post on January 11, 2022
National Association of Counsel for Children Publishes New Recommendations for Legal Representation
For Immediate Release
Contact: Evan Molinari
339-707-0406 [email protected]
First update to legal practice standards in two decades emphasizes youth voice, equity, and high-quality legal representation.
DENVER, CO. — For the first time in 20 years, the National Association of Counsel for Children has published updated Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Proceedings. Their release coincides with a growing national recognition that it is important for legal advocacy to incorporate youth voice and address the injustices of poverty and structural racism, the trauma of family separation, and the harm of negative foster care experiences.
Co-designed with NACC’s National Advisory Council on Children’s Legal Representation—comprised of young professionals with lived expertise in the child welfare system—the new Recommendations call upon attorneys and legal service delivery systems to anchor legal representation around the voice and interests of children and youth. They establish 10 primary duties of attorneys for children, which reflect NACC’s vision for effective, high-quality children’s lawyering in neglect and abuse proceedings.
After a two-year review and development process, this new publication replaces NACC’s 2001 Recommendations for Representation of Children in Abuse and Neglect Cases—widely recognized and cited by attorneys, judges, and policymakers as child welfare law best practice standards. The new Recommendations incorporate the expertise of staff, people with lived experience, interdisciplinary experts, practitioners from across the country, and key publications and resources. In addition to enhanced emphasis on youth voice, changes compared to the 2001 recommendations include a reduction in the recommended caseload cap from 100 to a range of 40-60 clients per attorney to allow for more robust engagement. The recommendations also explicitly endorse client-directed representation, consistent with prior NACC policy positions.
“Those with lived expertise in the child welfare system deeply understand what effective lawyering looks like,” said Cristal Ramirez, Youth Engagement Manager. “Attorneys, judges, policymakers, and advocates who read these new standards will benefit from their wisdom and insights as they work to advance justice for young people in foster care.”
“These Recommendations reflect NACC’s commitment to centering youth voice, equity, and family integrity in child welfare lawyering,” said Allison Green, Legal Director. “Now we must transform these principles from words to reality and ensure that every child and youth in foster care has a high-quality attorney in their corner.”
Leadership Message re: NACC Recommendations
On December 13, 2021, the NACC Board of Directors voted unanimously to approve new NACC Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Proceedings (NACC Recommendations), linked here. Their adoption replaces and rescinds the 2001 NACC Recommendations for Representation of Children in Abuse and Neglect Cases and the 1996/1999 amended NACC Revised ABA Standards for Lawyers who Represent Children in Abuse and Neglect Cases.
This action marks another milestone in NACC’s journey to develop a child and youth-centered legal profession, advance the highest-quality of legal representation, and assist jurisdictions seeking to establish and improve attorney representation. The 2021 NACC Recommendations were co-designed by young people with lived experience in the child welfare system, NACC’s National Advisory Council on Children’s Legal Representation. We are deeply grateful for their contributions, as well as the many attorneys, individuals with lived expertise, and organizational partners who participated in this two-year process. The feedback we received during two comment periods was invaluable.
The NACC Recommendations establish 10 primary duties of attorneys for children and youth which reflect our overall vision for effective, high-quality legal representation:
1. Establish an Attorney-Client Relationship: Attorneys for children and youth should adhere to an expressed interest model of legal representation.
2. Support the Attorney-Client Relationship: Attorneys for children and youth should maintain frequent contact and intentional communication, tailored to the client’s individual circumstances.
3. Offer Legal Counsel and Advice: Attorneys for children and youth have an ongoing, affirmative duty to advise clients of their rights, educate them about the legal process, inform them of their options, and counsel their decision-making.
4. Ensure Opportunity for Full Participation: Attorneys for children and youth should proactively ensure opportunity for meaningful participation in court hearings and other case events.
5. Provide Competent Legal Representation: Attorneys for children and youth should provide competent legal representation.
6. Provide Loyal and Independent Legal Representation: Attorneys for children and youth should guarantee loyalty and independence throughout their legal representation.
7. Maintain Confidentiality: Attorneys for children and youth should adhere to the same confidentiality and privilege rules as they do for adult clients, consistent with state law.
8. Advance Equity in Legal Representation: Attorneys for children and youth should engage in culturally humble representation and actively challenge inequitable treatment.
9. Provide 360 Advocacy: Attorneys for children and youth should seek to understand their clients as whole people, inside and outside the context of the legal proceedings, and provide holistic advocacy.
10. Preserve Continuity of Legal Representation: Attorneys for children and youth should endeavor to provide uninterrupted legal representation.
We urge you to read this document in full, but here are a few highlights:
• Enhanced emphasis on client-centered attorney practice with greater time investment in out-of-court communication and zealous advocacy.
• NACC’s prior recommended caseload cap of 100 has been reduced to 40-60 clients, to allow for the more robust level of engagement that research shows makes a difference.
• While the prior Recommendations took a neutral position on models of child representation, these explicitly endorse client-directed representation, consistent with NACC policy which preceded and followed the 2001 Recommendations.
• Overall, you will find a significant expansion of content, to provide more specificity to practitioners at this critical juncture in our field.
The NACC Recommendations were not designed to reflect the current national landscape of legal services for children. They envision the future of children’s justice. NACC is aware that state statutes, funding and practice norms may currently restrict practitioners from implementing these Recommendations in full. In these instances, we encourage practitioners to follow the NACC Recommendations as closely as possible.
Since our founding nearly 45 years ago, NACC’s purpose has been two-fold: to lead and support. To lead the development and advancement of the profession of children’s legal representation and to support the lawyers and organizations representing children with training, tools, informational resources, and networking opportunities. NACC will continue to partner with, support, train, and serve children’s attorneys working in all jurisdictions and models, as well as attorneys representing parents and social service agencies. Alongside practitioners, the ultimate beneficiaries of NACC’s programs are the children, youth, and families our community serves because it is through client-centered zealous advocacy that children, youth, and families can access justice in dependency court.
Thank you for being a part of this journey and for all your personal and professional contributions to the development of the field of children’s law. From a cause to a profession, to a movement, we are NACC. Together we are Promoting Excellence, Building Community, Advancing Justice.
Counsel for Kids: New Campaign Launches to Ensure Attorneys for Children in Foster Care
Counsel for Kids works to change laws to guarantee children a right to counsel
DENVER, CO. — With 673,000 childrennavigating America’s child welfare courts every yearand enduring concerns about unequal access to justice, today the National Association of Counsel for Children (NACC) launches a new campaign, Counsel for Kids, dedicated to ensuring that children in foster care receive lawyers of their own. A first-of-its-kind effort, Counsel for Kids will equip advocates with the skills, tools, and training to amplify the voices of children and youthas key decisions are made about their families and their futures.
No federal law or protection guarantees that children in foster care receive attorneys of their own, and right now 14 states leave youth to navigate complex child welfare proceedings without legal assistance. This campaign launches at a pivotal moment, as Congress considers landmark legislation that would ensure legal counsel for children and parents in these cases.” Absent legal counsel, courts and agencies risk making vital decisions about a child’s home, family, and future without their input.
Counsel for Kids is working to change that by mobilizing advocates and legal professionals to change the law in states that do not currently guarantee legal representation for kids in court. The campaignprovides technical assistance to advocates and organizations around drafting and proposing legislation, building coalitions,strategic policy advocacy, and communications. It will also focus on increasing the number of attorneys representing children and ensuring those lawyers receive the specialized training they need.
“In a system where I hadreduced voice, options, and rights, having a lawyer who is required by law to be my advocate and voice was essential for me to meaningfully engage and shape my life in the already limited ways I could,” said Ariella Stafanson, member of NACC’s National Advisory Council for Children’s Legal Representation and lived experience expert.
“Too often, the one person at the center of a child welfare case is also the one person who doesn’t get their own lawyer,” said Kim Dvorchak, Executive Director of NACC. “We launched the Counsel for Kids campaign to ensure that all youth experiencing the child welfare system, from babies to young adults, are seen, heard, and represented. When a young person is sick, they should see a doctor. When a young person is in court, they should have a lawyer.”
“The assistance we receive from Counsel for Kids will be vital to our efforts to guarantee legal representation for children in our state,” said attorney Whitney Untiedt, an advocate from Foster Fairness of Florida—one of the first states to apply for technical assistance. “Counsel for Kids will help us plan our advocacy strategy, identify tools and resources for our campaign, and build a coalition positioned to pursue right to counsel legislation for Florida youth.”
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About Counsel for Kids
Counsel for Kids is a campaign dedicated to ensuring that children in the nation’s foster care system have access to lawyers of their own so that their voices are heard and respected. We work to increase the number of attorneys representing children, and to mobilize advocates and attorneys working to change the law in states that do not currently guarantee legal representation for kids in court. We also work to build new coalitions and provide technical assistance to lawyers and advocates, from drafting legislation to training sessions about fundraising and development. We have one singular mission: bringing real and lasting change. For additional information about Counsel for Kids, visit https://counselforkids.org/
About The National Association of Counsel for Children
Founded in 1977, the National Association of Counsel for Children is a non-profit professional membership and advocacy organization dedicated to advancing justice for children, youth, and families. NACC provides programs, training, certification, and resources that improve the quality of legal representation for children, parents, and agencies; supports a community of dedicated professionals and helps attract and retain diverse talent in the children’s legal advocacy profession; and advocates for policies that advance children’s rights, including the right to counsel. https://www.naccchildlaw.org/
