Representation of Children in Child Abuse and Neglect Proceedings - Massachusetts

Making The Appointment

Citation: Ann. Law Ch. 119, § 39F

When an application for assistance stating that a child and family are in need of assistance is initiated, the child shall be informed that he or she has a right to counsel at all hearings. If the child is not able to retain counsel, the court shall appoint counsel for the child.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Ann. Laws Ch. 211D, §§ 1; 9; CPCS Assigned Coun. Man., Ch. 3(F)

There shall be a Committee for Public Counsel Services (CPCS) to plan, oversee, and coordinate the delivery of legal services by salaried public counsel, bar advocate and other assigned counsel programs, and private attorneys serving on a per-case basis. The committee shall establish standards for the public defender division and the private counsel division.

In policy: Attorneys who wish to accept Children and Family Law (CAFL) assignments from the trial court must (1) apply for admission to the CAFL trial panel; (2) successfully complete all required trainings; (3) work with a mentor assigned by CAFL; and (4) attend 8 hours of CAFL-approved continuing legal education each fiscal year.

Attorneys seeking certification to accept CAFL trial-level assignments must apply for the CAFL trial panel certification program. Preference is given to attorneys with an established practice, experience working with families, and litigation skills.

Attorneys accepted into the training program must attend the initial multiday program and all subsequent sessions. Applicants with significant trial experience may apply for a waiver of the trial skills portion of the training. Newly certified CAFL trial panel attorneys must attend the 4-hour seminar, 'Medical Treatment Decisions for Children in DCF Custody,' and a 2-day trial practice training sponsored by CPCS, within 2 years of the completion of the certification training.

Trial panel attorneys must complete 8 hours of CAFL-approved continuing legal education each fiscal year. Trial panel attorneys are required to satisfy the annual continuing education requirement beginning in the fiscal year after they successfully complete the CAFL Trial Panel Certification Training Program.

The CAFL division assigns mentors to attorneys who satisfactorily complete the certification training. Attorneys are provisionally certified during the period of their mentorship. Provisionally certified attorneys must work cooperatively with their assigned mentors.

Attorneys who are not currently certified to accept CAFL assignments and wish to accept assignments to represent children in Children Requiring Assistance (CRA) matters must (1) apply for admission to the CRA Child-Only (CRA-CO) panel, (2) successfully complete all required trainings, (3) work with a mentor assigned by CAFL, and (4) attend 4 hours of CAFL-approved continuing legal education each fiscal year. Attorneys seeking certification to accept CRA-CO trial level assignments must apply for the CRA-CO panel certification program. Preference is given to attorneys who have an established practice, experience working with children, and litigation skills.

Specific Duties

Citation: CPCS Assigned Coun. Man., Ch. 4(N)

Counsel for a child owes the same duties of undivided loyalty, confidentiality, zealous advocacy, and competent representation to the child as is due an adult client, consistent with the Rules of Professional Conduct. The child's counsel should not be merely a factfinder, but rather should zealously advocate a position on behalf of the child. Regardless of any alignment of position among the child and other parties, child's counsel should develop his or her own theory and strategy of the case and ensure that the child has an independent voice in the proceedings.

At a minimum, counsel shall meet with a child client on a quarterly basis, except under extraordinary circumstances. Irrespective of a child client's age, counsel shall promptly meet with the child client at his or her placement upon receiving notice of the assignment. Counsel shall thereafter meet with the child as necessary to provide competent representation to the client; to be informed of the child's wishes and circumstances; to inform and advise the client about the proceedings, as appropriate; and to maintain an ongoing attorney-client relationship with the child.

Child's counsel should elicit the child's preferences in a developmentally appropriate manner, advise the child, and provide guidance. In eliciting the child's preferences, counsel should be aware of and understand the factors that influence the child's decision-making process. In addition to communicating with the child client, counsel should review records and consult with appropriate professionals and others with knowledge of the child. Counsel also may find it helpful to observe the child's interactions with foster parents, birth parents, and other significant individuals.

If a child can verbalize a preference with respect to a particular matter, and if representing the child's expressed preferences does not place the child at risk of substantial harm, then counsel shall represent the child's expressed preferences. If the child is not able to make an adequately considered decision regarding the matter and if counsel determines that pursuing the child's expressed preferences would place the child at risk of substantial harm, counsel may choose one of the following options:

• Represent the child's expressed preferences regarding the matter
• Represent the child's expressed preferences and request the appointment of a guardian ad litem/investigator to make an independent recommendation to the court with respect to the best interests of the child
• Inform the court of the child's expressed preferences and request the appointment of a guardian ad litem/next friend to direct counsel in the representation
• Inform the court of the child's expressed preferences and determine what the child's preferences would be if he or she was able to make an adequately considered decision regarding the matter and represent the child in accordance with that determination

How the Representative Is Compensated

Citation: Ann. Law Ch. 119, § 39F; Ch. 211D, § 11

The court shall determine whether the parent or guardian of a child alleged to be in need of services is indigent. If the court determines that the parent or guardian is not indigent, the court shall assess a $300 fee against the parent or guardian to pay for the cost of appointed counsel. If the parent is determined to be indigent but is still able to contribute toward the payment of some of said costs, the court shall order the parent to pay a reasonable amount toward the cost of appointed counsel.

The rates of compensation payable to all counsel, who are appointed or assigned to represent clients within the private counsel division of CPCS shall, subject to appropriation, be as follows:

• For Child in Need of Services (CHINS) cases, the rate of compensation shall be $50 per hour.
• For CAFL cases and care and protection cases, the rate of compensation shall be $53 per hour.

CPCS shall set an annual cap on billable hours not in excess of 1,650 hours. Notwithstanding this limitation, the chief counsel may waive the annual cap on billable hours for private counsel appointed or assigned to the CAFL cases and the care and protection cases if the chief counsel finds that: (i) there is limited availability of qualified counsel in that practice area, (ii) shifting the services to private counsel would result in cost efficiencies, or (iii) shifting the service to private counsel would improve the quality of service. Counsel appointed or assigned to such cases within the private counsel division shall not be paid for any time billed in excess of 2,000 billable hours. It shall be the responsibility of private counsel to manage their billable hours.