Linda Weinerman, J.D. & Sheri Danz, J.D January 16, 2013 OCR - - PowerPoint PPT Presentation

Linda Weinerman, J.D. & Sheri Danz, J.D

January 16, 2013

1)

OCR Complaint Process

a) Complaint Intake b) Complaint Investigation c) Complaint Resolution d) Founded Complaints

2)

OCR Complaint Statistics

3)

CJD 04-06

a) Independent Investigation Requirements b) Frontloading the Investigation c) Ongoing Duty to Investigate

4)

CJD 04-08

 The general assembly finds that

• The legal representation of children is a critical element in

giving children a voice in the Colorado court system  The representation of children is unique in that children

• ften have no resources to retain an attorney

 Children are unable to effectively communicate the information needed to serve the best interests of that child

 Childr ildren en lack the abili ility ty and understandi derstanding ng to effec ecti tive vely eva valua luate te and, d, if necessar essary, , compl plain ain about

• ut the quality

ality of

• f re

represen presentati ation

• n they

y receive ive

OCR is Required:

 To provide oversight of and accountability for

state-paid GAL, Child’s Representative and attorney Child and Family Investigator services for the benefit of Colorado’s children, including investigation and resolution of complaints regarding attorneys who contract with the OCR. CJD 04-06, II (A)

 Filing a Complaint

• Complaints must be in writing
• Exception: oral complaints from judicial officers & court

personnel are permitted

• Complaints are NOT confidential

 Complaint Assignment

• Complaints are investigated by the OCR Staff Attorney

assigned to the judicial district where the case is set

• All complaints are staffed with the OCR’s Executive

Director

 Investigation Process:

• Contact Parties

 Contact Complaining Party to explain process  Contact Attorney – provide a copy of the complaint and ask attorney to respond to the specific issues raised  Contact all collaterals identified by both the complainant and the attorney

• Review Relevant Materials

 Court Record of Actions  Attorney Billing Records  Other information pertinent to the issue raised in the complaint

 OCR Looks For Compliance With:

• Supreme Court Directives
• Rules of Professional Conduct
• OCR Professionalism & Practice Standards

 OCR Does NOT:

• Review individual assessments, decisions, or

recommendations made by a GAL, CFI, or CLR

• Substitute the Attorney’s judgment or second guess

the Attorney’s recommendation

 Complaint Scenario 1:

Grandma alleges the GAL recommended a Foster Parent placement over relative placement with Grandma, because the Foster Parents have more money.

 Is this a founded or unfounded complaint?

• 1. Founded
• 2. Unfounded

1 2

83% 17%

• 1. Founded
• 2. Unfounded

Correct Answer: Unfounded

 OCR determines whether a formal meeting

with the complainant and the GAL/CFI/CLR is necessary or whether a decision based on the information presented can be made

 Attorney is notified of the preliminary finding  Attorney is given opportunity to submit

additional information

 Written resolution is issued to the

complainant and the attorney

 A Founded Complaint Involves:

• Case Audit

 Founded complaints typically result in a review of the attorney’s cases to determine if the behavior was an anomaly in practice or part of a pattern of conduct

• Corrective Action

 1) Training  2) Placing Attorney on Probationary Status  3) Removal from an Active Case (Need Judicial Approval)  4) Remedial Action to Improve Quality of Attorney’s Work  5) Suspending or Terminating the Attorney’s Contract

 Complaint Scenario 2:

Mother alleges that GAL threatened her, saying she will never get the kids back as long as the GAL has anything to do with it. GAL denies having said this to the Mother. Mother cannot provide independent verification of the conversation.

 Is this a founded or unfounded complaint?

• 1. Founded
• 2. Unfounded

1 2

100% 0%

• 1. Founded
• 2. Unfounded

Correct Answer: Unfounded

Complaints Filed v. Founded Complaints

Types of Cases Investigated

 Failing to visit the child in placement within

30 days of appointment

 Failing to conduct an independent

investigation

 Failing to maintain communication with the

child, family members, or other involved parties

 Professionalism & Behavioral Complaints

 Complaint Scenario 3:

An angry respondent barges into Attorney’s

• ffice to complain about his case. Attorney

calls respondent an F-ing A**hole.

 Is this a founded or unfounded complaint?

• A. Founded
• B. Unfounded

1 2

38% 62%

• 1. Founded
• 2. Unfounded

Correct Answer: Founded

1.

Attend all court hearings & provide accurate & current information directly to the court

• This must include a statement of the child’s

pos

• siti

tion

• n when ascertain

tainable able unless ess th the child ld doe

• es

not want the GAL to report this

2.

File written or oral reports with the court & all other parties

3.

Take actions within the scope of his or her statutory authority & follow the ethical obligations necessary to represent the best interests of the child

4.

Conduct an independent investigation in a timely manner

5.

Continue to perform an ongoing investigation

6.

If parents or child are placed more than 100 miles outside the jurisdiction of the court, requirements to personally meet with the child are waived

• OCR has a higher practice standard

7.

GALs in D&N proceedings shall submit a standard affidavit of compliance to the OCR by May 30 of each year for appointments made in the previous contract year

 Complaint Scenario 4:

Over the period of one month, attorney is contacted in 5 e-mails and 4 phone calls by counsel representing an intervener. Attorney does not respond.

 Is this a founded or unfounded complaint?

• 1. Founded
• 2. Unfounded

1 2

0% 100%

• 1. Founded
• 2. Unfounded

Correct Answer: Founded

 Personally meet & observe the child in placement

no later than 30 days following appointment

 Personally meet with and observe child’s

interaction with parents, proposed custodians, kinship care providers, or foster parents

 Review court files & relevant records, reports, &

documents

 Interview the respondent parents, with consent of

counsel

 Interview other people involved in the child’s life

including professionals necessary to assess and serve the child’s best interest

 Confirm that the county department’s investigation

has included a search for prospective kinship, placement and/or adoption, or potential tribal affiliation, or personally conduct this investigation if these attempts fail

 When appropriate, visit the home from which the

child was removed

 Complaint Scenario 5:

Father’s domestic violence is the main issue in the case. GAL refuses to speak to the domestic violence provider but continues to take positions in court regarding Father’s DV.

 Is this a founded or unfounded complaint?

• A. Founded
• B. Unfounded

1 2

0% 100%

• 1. Founded
• 2. Unfounded

Correct Answer: Founded

 The Initial Investigation:

• Sets the groundwork for the entire D&N case
• Is critical to serving the child’s best interests and advancing

permanency for the child

• Allows the GAL to make recommendations early on in the case
• Implements services that will advance the goals of the case
• Reduces the risk of harm to the child and disruption in the

child's placement

• Preserves significant relationships to the child such as sibling

relationships

 The Initial Investigation should be completed within

45 days of the GAL’s appointment

 GAL’s must continue to conduct an ongoing

investigation which includes:

1) Meeting with & observing the child in each new home or placement

• Should occur within 30 days after the child’s

entry into the new placement 2) Maintaining contact & ongoing communication with the child, foster parents, CASA, and any other parties necessary to ensure the child’s best interests are continually met

 Complaint Scenario 6:

Father alleges that GAL has only seen the child twice in the year the case has been

• pen, and sends an assistant to attend

staffings and meetings. Child has remained in the same placement for the year.

 Is this a founded or unfounded complaint?

• A. Founded
• B. Unfounded

1 2

80% 20%

• 1. Founded
• 2. Unfounded

Correct Answer: Unfounded

 Details that the client of the GAL or CLR is the

best interest of the child

 Requires the GAL to consult with the child

and consider the child’s position regarding the disposition of the matter before the court

 Requires the GAL or CLR to explain the limits

• n confidentiality of information the child

shares

 Complaint Scenario 7:

Foster Parent alleges that GAL is doing too much to help the parents get their children back, and that GAL is representing the parents instead of the children.

 Is this a founded or unfounded complaint?

• A. Founded
• B. Unfounded

1 2

100% 0%

• 1. Founded
• 2. Unfounded

Correct Answer: Unfounded

 General Principles

• St

Standard ndard 1. The CFI shall ll act profes

• fessi

sional nally ly

• St

Standard ndard 2. The CFI shall ll maintain ntain objecti ctivi vity ty

 Role of the Child & Family Investigator

• Standard 3. CFI serves as an investigative arm of the court
• Standard 4. The CFI shall not serve inconsistent dual roles
• Standard 5. The CFI may move to the role of parenting

coordinator or decision-maker arbitrator, but only after all CFI duties are completed

 Duties of the Child & Family Investigator

• Standard 6. CFI shall maintain competence through training
• Standard 7. CFI shall acknowledge issues beyond his/her

competence

• Standard 8. CFI shall collect data & conduct an investigation
• Standard 9. CFI shall have age appropriate communication
• Standard 10. CFI shall report child abuse

 Duties of the Child & Family Investigator

• Sta

tand ndard ard 11. CFI shall prepare e a clear r & ti timely y repor

• rt
• Stand

ndard ard 12. CFI shall provide e copies of h his/her her file

• Standard 13. CFI shall not conduct psychological testing or

drug and alcohol evaluations

• Standard 14. CFI shall maintain confidentiality
• Standard 15. CFI appointment shall terminate no later than

entry of permanent orders or the post decree order

 Communications

• Standard 16. The CFI shall develop written policies

for the parties

• Standard 17. The CFI shall develop written policies

for counsel

• Standard 18. The CFI shall review the court’s order
• f appointment
• Standard 19. The CFI shall have no private or ex

parte communications with the court