Under Louisiana law, the child is a party and has a right to be represented by counsel, is entitled to notice, to present evidence, and to be heard. The law states that a child 12 and older shall be present in court unless their presence is waived by the court upon motion of their attorney; if under 12, they shall be present upon request of the child’s counsel or court. If present, the child may choose to testify as to their wishes, and the court shall consider their testimony in the matter. Those with lived experience in care point out that even this definition of the child as a party does not grant the child the same standing because their attorney can decide to exclude them. They also note this right also doesn’t apply to the majority of children who are under 12.
In Colorado, the Children’s Code provides that children receive notice and states that, when appropriate, children must be given an opportunity to participate in hearings. The child’s court-appointed guardian ad litem (GAL) who represents them should encourage them to attend court but may defer to their own interpretation of the child’s “best interests.” Other jurisdictions, such as Florida, Oregon, and Texas, have passed legislation that gives children the right to attend and outlines the circumstances under which to exclude them, which is usually a broad best-interest exclusion. Other states determine participation by age or leave it up to the judge’s discretion.
Even among practitioners across the country, there is not consistency of views on the appropriateness and the necessity of having children present at their dependency hearings where important decisions are being made about their lives—decisions about where they will live and with whom; where they will go to school; their mental, behavioral, and physical health; and connections to their family and community until they are adults. These types of decisions are often made outside of their presence and without consideration of the child’s wishes, unique needs, or racial and cultural identities.
In several surveys of current and former foster youth, most of them wanted to attend their court hearings. Many stated that when they did attend, it was helpful. Overall, children felt they were more informed about their lives, and the experience of attending court was worthwhile. Some felt a sense of control and empowerment while others felt ignored or bored by the proceedings or worried that they missed something important at school.
Discussions about children’s presence in court often bring up the question of trauma. Just as there is a difference of opinion on the value of children being present in court, professionals also disagree about the level of trauma that may or may not be associated with court appearances. Some may experience trauma, but trauma can be mitigated. Others feel that it is much more traumatic for a child to be told about life-changing decisions without being given the opportunity to participate. Many describe feeling more anxiety and stress when they are shut out of the process. A 2017 study by the Administration of Courts and Families found that the lack of transparency and “not knowing” the dependency process are significant sources of trauma for foster youth. While not trying to minimize the possibility that a child may have a traumatic response by being present in court, given what some have said about the benefits, it is incumbent upon the stakeholders to develop policies and procedures that mitigate those risks. To do anything less means that we are failing the children whose cases we manage. For a child to have a positive courtroom experience, the courtroom and the proceedings must be safe, accessible, and understandable.
Safe
The attorney can play a vital role in making the process safe by mitigating trauma, anxiety, or stress. This can be done by preparing the child before the hearing to demystify the experience. Building rapport and trust is a necessary part of making the child feel safe in court. The attorney can help the child understand their case, what to expect, and how to participate in the hearing. The attorney can also use this time to ensure that they know what the child wants the attorney to advocate for. The attorney can then address the issues the youth has raised about their services, placement, and family and sibling visitation plans. The attorney can also assist in encouraging the court to make time and space for the child to share what’s important to them.
If there are questions about how to make the child feel safe in attending their own hearings, the attorney should ask the child before the hearing for ways that can make the process safer. This includes asking the child their preferred name and pronouns and sharing this information with the court in advance of the hearing. Neither the attorney nor the judge should assume the gender of the child based on their legal name or clothing. Similarly, in preparation for a hearing involving a trans or non-binary youth, the attorney should prepare the court with the proper names and pronouns the child prefers to reduce the number of times the child is misgendered in court. If someone who physically abused the child will be attending court, the attorney should ensure the child is allowed to wait in a separate waiting area. Additionally, attorneys should engage the child’s therapist, caregiver, or team to assist with the child’s specific accommodation needs, if necessary.
A court-friendly environment (artwork, posters) and separate waiting area can contribute to helping the child feel safe, and that can ensure that attending court is a positive experience. In Los Angeles County at the Edmund D. Edelman Children’s Court, a separate waiting area staffed with professionals is decorated in a child-friendly manner, including a reading area, game tables, computers, and outdoor play areas. Frequently, emotional support dogs are brought in for the children. In a few Louisiana courts, judges have led the way in creating what are being called “calming rooms” to make the court more child-friendly. Plenty of snacks and water should be available for children attending court, and a gift such as a book, teddy bear, or other toy can be provided.
Finally, after the hearing, the attorney should check in with the child to see how they are feeling and must explain to the child what occurred and answer any questions. Often, children express that their hearings go so fast they don’t understand what occurred. This debriefing is critical. A child should never leave court wondering what happened in their case or without appropriate emotional support as may be necessary.
Accessible
Accessibility includes several issues, not the least of which is actually getting to the court building. Transportation must be provided if the right to be present in court is to have real meaning. In Los Angeles County, vans transport children over four years of age from all over its 4,083 square miles to the two courthouses where all dependency cases are heard. In Louisiana, the department has vans, which it uses with a transportation worker to pick up children who are in foster care and not placed with their parents to bring them to court. In California and Louisiana, children who are home with parents or placed with relatives are transported by their caregiver, potentially posing a problem for those with limited transportation options such as a public transportation system. Providing additional funds to parents and relative caretakers or contracting with a third-party driving service are options that the child welfare department should consider to ensure that children get to court. Additionally, attorneys should keep in mind that while a child’s mode of transportation to court may have been reliable at their last placement, if the child is moved, their new placement may not be able to provide transportation without assistance.
Accessibility also raises the question of the timing of the court hearing. Flexibility in setting times for hearings is a necessity for maximizing the opportunity for children to participate in their hearings. Setting times for hearings after school or on days when school is not in session are suggestions. When children do attend, they should be given a court excuse so that their absence is not counted against them.
As many courts are opening after COVID-19, they are touting the benefits of virtual hearings, with some courts discussing the option of never going back to holding hearings in person. While courts were forced to make adjustments, as most courts were shut down completely or only open to handle emergency matters, anecdotally, a greater effort seemed to be made to ensure that the children were “present in court.” In some court systems, the child welfare departments joined with public and private organizations to ensure that children had devices (telephone, iPad, computer, etc.) that allowed them to communicate with their attorneys and the courts. Special areas with computers were set up in one law firm that represents children so they could testify via a Zoom-like program. Other attorneys traveled to their clients’ homes and connected with the court to allow children to testify. Attorneys used more creativity to ensure the clients’ voices were heard in court. For children who did not want to miss school, their attorney would text them to log in at the precise time their case was being called. They could hang up or log off after the hearing and return to class. While this worked for some, others experienced connection problems, poor internet service, and an inability to see or hear parties or their attorneys, which did not provide for good experiences.
While there may be a desire in many jurisdictions, because of all the perceived advantages of virtual hearings, to never return to in-person hearings or create some hybrid system with in-person and virtual hearings, this should not be the position as it relates to the presence of children in dependency court. Having the child appear in person in court is critical to ensure their needs are being met and their voice is heard. Whether in person or online, attorneys must discuss with each child client any concerns that could affect accessibility before court to ensure that they have an opportunity to be present, be heard, and meaningfully participate. To assist with making recommendations on how to make child presence in court most successful, courts should survey youth and families or hire those with lived experience to assist with making recommendations about how to make courts more accessible.
Understandable
The judge has an important role and responsibility in making sure that the proceeding is understandable to the children who appear in court. The judge sets the tone and pace in the courtroom, and it starts with the judge always referring to the child by the name and pronouns they prefer. The attorney should provide this information to the court in advance of the hearing.
The judge should prepare for each child’s case by knowing the facts and thinking carefully about how and what questions will be asked and allowing ample time for the child to speak freely. The judge should ask developmentally appropriate questions depending on the age and maturity of the child. If English is not the child’s first language or the parents’, the judge must ensure that there are interpreters available to assist with making the conversation between the judge and the child flow smoothly and that everyone present can understand what is being said. Hearings often involve parents’ rights at each stage in the process. Building rapport with the child directly can assist the judge in understanding what’s meaningful to the child, including who they want to live with, whether they can be placed with their siblings, where they want to go to school, and what services they may need. The judge must listen carefully and answer any questions that the child may have. Depending on the child and the situation, the judge decides whether more or less time is needed.
The child’s presence in court is important because the decisions made in court will affect them directly. A child’s presence in court also allows the judge to see them as individuals, not just a square on a video screen, a file, or a fact pattern. The judge can see the child and engage with them on a personal level at each hearing and build a special rapport different from their attorney or social worker. For older children, the judge can serve as a motivator and supporter encouraging them to stay in school and do well, not run away, and cooperate with their treatment. This shows a sense of caring, which is important to the child who has at many times faced one rejection after another.
A Child’s Presence in Court Must Be an Expectation, Not an Exception
Nothing replaces the personal touch. As a child who was surveyed in 2015 by Voices for Adoption said, “make sure that we too have a voice. I can’t speak for everyone, but I feel better advocating for myself. Who knows the situation better than me anyway?”
References
California Legislative Information
Louisiana CHC 661
Colorado Guided Reference in Dependency
Seen, Heard, and Engaged: Children in Dependency Court Hearings
National Council of Juvenile and Family Court Judges Resolutions and Policy Statements
Voice for Adoption
See also, Lacy Kendrick Burk, Involving Youth Matters, ABA Child Practice Today (2011),
