On July 22, 2019, the Oklahoma Supreme Court approved the establishment of a task force to study and report on legal representation of children and parents in legal proceedings set forth in the Oklahoma Children’s Code, 10A O.S. 1-1-101 et seq.¹ The task force was required to produce an interim report² in February of this year. The following are highlights from that report.

Over the course of five meetings, the task force focused on gathering information and data regarding current legal representation practices in Oklahoma deprived cases as well as receiving information from other selected states’ representation agencies regarding their models, structure, compensation, training, supervision and caseloads.

In its attempt to gather information and data regarding legal representation practices, the task force emailed surveys to Oklahoma judges presiding over juvenile dockets as well as attorneys representing parents and children in deprived proceedings. Thirty-eight judges and 43 attorneys responded. Focus groups were also conducted at the 2019 annual Court Improvement Program statewide conference. Forty-five judges, attorneys and Department of Human Services (DHS) Child Welfare employees participated.

ELEMENTS OF HIGH-QUALITY REPRESENTATION

The Family Justice Initiative³ published “Attributes of High-Quality Legal Representation for Children and Parents in Child Welfare Proceedings” that set forth, in part, the following:

• Attorney Attributes:
  • Competent legal advocacy;
  • Out-of-court advocacy including active engagement with clients;
  • Expansion in scope of representation to include potential ancillary legal issues that would assist the client’s efforts to be in compliance with the case plan;
  • Conduct independent investigations;
  • Approach cases with a sense of urgency;
  • Engagement in case-planning; and
  • Diversity/Cultural humility.

• Attorney Attributes:
  • Adequate compensation;
  • Reasonable caseloads;
  • Use of interdisciplinary teams;
  • Early appointment of attorneys;
  • Adequate support for and oversight of attorneys;
  • Accountability for quality legal representation; and
  • Diversity/Cultural humility.

The task force also recognizes the important role the judiciary plays in ensuring high-quality representation, including supporting the role of attorneys as zealous advocates for their clients.

OVERVIEW OF LEGAL REPRESENTATION OF CHILDREN AND PARENTS IN OKLAHOMA

Currently, Oklahoma lacks a structure and adequate funding that ensures high-quality representation for parents and children across the state that includes recruitment, contracting, training, adequate compensation, supervision and accountability.

Fifty counties’ court funds contract with approximately 200 attorneys annually to provide legal representation for parents and children (contract counties). The remaining 27 counties’ court funds compensate attorneys at either an hourly rate or by case (exempt counties). Oklahoma and Tulsa counties rely on the public defender’s office as well as Oklahoma Lawyers for Children and Tulsa Lawyers for Children to exclusively provide legal representation for children and rely on contracted private attorneys to provide legal representation for parents. Sparsely populated rural counties have extreme difficulties recruiting attorneys willing to contract or receive appointments for representation of parents and children in deprived cases.

Additional resources such as social workers, investigators and experts are not generally utilized by the contracted or court-appointed private attorneys. Investigators are employed by the two public defender offices and are made available to the assistants assigned to the deprived dockets.

The burden of recruiting, compensating, supervising and training the court-appointed private attorneys falls upon the local trial courts. For the task force, this creates two immediate concerns. First, there exists an apparent conflict because attorneys practice before the very courts that are responsible for their supervision, training and most importantly, compensation. Second, the current system does not permit a uniform, statewide process to train, supervise and compensate, resulting in dramatically inconsistent practices.

IDENTIFIED BARRIERS TO HIGH-QUALITY REPRESENTATION IN OKLAHOMA

The following are the areas the task force identified as barriers to high-quality representation in Oklahoma:

• Compensation: The inadequate compensation rate (whether by contract, per hour or per case) is viewed by the task force, as well as the respondents to the surveys and focus groups, as being one of the primary barriers to recruiting and/or maintaining attorneys who can provide high-quality representation for parents and children in Oklahoma’s deprived cases.
• Training: The task force and the judges and attorneys that responded to the surveys are in agreement that more than six hours of annual training of attorneys is needed. Both comprehensive initial training as well as training in appellate advocacy should be provided, if not mandated.
• Caseloads: The task force believes that reasonable caseloads are critical to the ability to provide high-quality representation for parents and children and will continue to study caseload management and make recommendations in its final report.
• Appeals: Of great concern to the task force is the lack of attorneys (and appropriate compensation) for parents’ and children’s attorneys to competently initiate, pursue and complete appeals. Although attorneys are always appointed to appeals, when asked about initiating and completing appeals for their clients, the majority of responding parents’ attorneys advised that they “rarely” continued to represent their clients in appeals. The majority of children's attorneys (still less than 40%) responded that they “always” continued to represent their clients in appeals.
• Multidisciplinary support: Unlike the offices of the district attorneys and public defenders that may provide resources for their assistants assigned to the deprived dockets such as investigators, interns, paralegals and expert witnesses (budget permitting), parents’ and the majority of children’s attorneys have little to no multidisciplinary support systems available to them to dispute the state's evidence.The focus groups conducted by the task force resulted in an enthusiastic response by DHS and parents’ attorneys for parent advocates/mentors with the children’s attorneys strongly endorsing the multidisciplinary model as being supportive of the required out-of-court activities and thereby allowing the attorneys to better focus on the legal issues.
• Timing of appointments: Except when the provisions of ICWA are applicable, appointment of counsel for children and parents at the time of the emergency custody hearing is discretionary with the trial court. However, the Oklahoma Children’s Code mandates appointment of counsel when the deprived petitions are filed for indigent parents and all children parties to the deprived action.⁴ The task force’s survey indicated that the majority of parents’ and children’s attorneys are appointed post-petition, i.e., generally after the child has been removed from the home on an emergency basis and an emergency custody hearing has already been held. Children’s attorneys are more apt to be appointed prior to the emergency custody hearing whereas parents’ attorneys are appointed prior to or during the adjudication hearing. The task force strongly believes that all parties should be appointed counsel prior to the initial hearing.
• Support from the judiciary: The task force also believes that judges throughout the state, but especially within judicial districts, should work together to limit delays or long waiting times for hearings in juvenile deprived cases. Judges, attorneys and caseworkers have described lengthy waits in many courtrooms before the juvenile docket can start. This occurs when the district judge or another judge who does not oversee juvenile cases prioritizes other hearings and cases over juvenile deprived cases.

MODELS IN OTHER STATES FOR HIGH-QUALITY REPRESENTATION

The task force assessed various models/structures of representation used nationally or endorsed by standard-setting organizations. Three organizations were specifically studied: Colorado Office of Respondent Parents’ Counsel, Massachusetts Committee for Public Counsel Services’ Children and Family Law Division and Still She Rises, Tulsa Inc., a project of The Bronx Defenders. Each organization reflected two of the three generic recognized models for parent and child representation⁵ :

• Contract Model (Colorado): panel of trial and appellate contract attorneys, as well as contracted social workers, overseen by a staffed central office that provides training, technical support, consistent statewide contracts, multidisciplinary resources, appellate support and oversight by mandating education requirements and practice standards
• Hybrid Model (Massachusetts): panel or list of contract attorneys who handle the majority of trial and appellate representation and a state or county office with full time staff who may handle direct representation, oversee admission onto the panel, provide and oversee attorney education, and administer an attorney review process
• Institutional Model (Still She Rises Inc./Bronx Defenders)⁶ : offices with full-time staff of attorneys, social workers, peer parent advocates and investigators

INTERIM RECOMMENDATIONS

1. The task force should continue to study early appointment (prior to initial hearing) of attorneys for parents and children.
2. The task force should prioritize the implementation of critical initial and ongoing quality education for attorneys and judges.
3. The task force recommends that the AOC expeditiously continue to research the feasibility of Title IV-E funds either going through the AOC or other appropriate entities.
4. The task force should gather more information about the financing of high-quality legal representations from other states.
5. In addition to the pursuit of supplemental federal funds, the task force recommends that the final report provide comprehensive information about financing and therefore believes the following information is necessary. The task force requests the chief justice require all court clerks in counties that are on the KellPro system, by April 1, 2020, to supply the AOC the following:
   • Number of deprived cases filed in calendar years 2019 and 2020;
   • Number of guardianship cases filed in calendar years 2019 and 2020 and
   • Number of mental health and indirect contempt cases filed in calendar years 2019 and 2020.
     The task force also requests the chief justice to require all attorneys in the 50 counties with contracts with the court to provide the following by April 15, 2020:
   • Cases appointed in Fiscal Year 2020 through March 30, 2020;
   • Number of current open cases regarding the representation of:
     • Deprived parents;
     • Deprived children;
     • Mental Health;
     • Guardianship;
     • Adoption;
     • Contempt and
     • Other.

   Receiving this information will allow the task force to better estimate the number of cases attorneys are handling and the amount being paid and for each case type to allow for an estimation of Title IV-E funds from these expenses.

6. The task force recommends the Supreme Court adopt practice standards for legal representation of children, similar to the standards for parent representation found in Attachment E-2.
7. The task force recommends that the chief justice discuss with the presiding judges the issue of prioritizing juvenile deprived cases, and suggest they collaborate with their colleagues to address these concerns and identify and implement solutions.
8. The task force will continue to determine reasonable caseloads for parents’ and children’s attorneys, including defining caseload.
9. The task force should continue to determine adequate compensation for parents’ and children’s attorneys that will reinforce high-quality legal representation in both trial and appellate courts. This should include compensation for out-of-court advocacy at least at the same level of compensation for in-court work.
10. The task force should keep apprised of other states’ progress in claiming and receiving Title IV-E funds as well as studying the impact of collecting IV-E reimbursements in Oklahoma.
11. The task force should prioritize implementation of the multidisciplinary model of representation when deciding on the statewide model.
12. The task force should prioritize implementation of critical initial and ongoing training for trial and appellate attorneys that includes and emphasizes the practice of cultural humility and respect within the child welfare system.
13. The task force should gather information about any ethical conflicts and resolutions thereof from other states when considering the recommended structure of the legal representation agency/agencies.
14. The task force should continue to think creatively about improvements to the Oklahoma legal representation model while not losing sight of financial realities.
15. The task force recommends 10A O.S. 1-4-306 be amended to additionally allow parents’ attorneys reasonable compensation for mileage if the attorney is required to travel to a district court location other than his or her county of business. The current statute only allows for reimbursement of children’s attorneys to be compensated for mileage.

TASK FORCE MEMBERS

The members of the task force are Judge Michael Flanagan (chair, Cotton County), Judge Rebecca Gore (Mayes County), Judge Mark Morrison (Choctaw Nation, Bryan County), Robert Ravitz (Oklahoma County public defender), Corbin Brewster (Tulsa County public defender), Ronald Baze (Department of Human Services), Donna Glandon (advocate general, Oklahoma Office Juvenile Affairs), Tsinena Thompson (president and CEO, Oklahoma Lawyers for Children), Michael Figgins (executive director, Legal Aid Services of Oklahoma), Lisa Bohannon (attorney, Mayes County), Holly Iker (attorney, Cleveland County), Gwendolyn Clegg (attorney, Tulsa County) and Tim Beebe (attorney, Garfield County). The non-voting members are Judge Doris Fransein (retired, Casey Family Programs consultant), Sharon Hsieh (Administrative Office of the Courts), Felice Hamilton (Court Improvement Program director), Julie Rorie (staff attorney for Justice Kauger), Susan Weiss (Casey Family Programs) and Mimi Laver (American Bar Association).

Special thanks to Judge Fransein for being the main drafter of the Interim Report. Judge Fransein was a judge for 24 years and retired as district judge over the Tulsa Juvenile Bureau in January 2019.

Author’s note: All task force members contributed to the content of the report summarized in this article.

ABOUT THE AUTHOR

Tsinena Bruno-Thompson is president/CEO of Oklahoma Lawyers for Children, Inc. as well as the founder and chair of the Juvenile Law Section. She is a founding board member of the Count Me in 4 Kids Coalition and serves on the Juvenile Court Improvement Task Force and the Supreme Court Task Force on High-Quality Legal Representation for Parents and Children in Deprived Proceeding.

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Endnotes

1. SCAD 2019-65.
2. This is a condensed version of the full Interim Report.
3. The Family Justice Initiative (FJI) is a collaboration of the ABA Center on Children and the Law, the Children’s Law Center of California (CLC), the Center for Family Representation (CFR) and Casey Family Programs (CFP).
4. 10A O.S. 1-4-306(A)(1)(a).
5. ABA Center on Children and the Law, Summary of Parent Representation Models, 2009.
6. Still She Rises is a duplicative model of The Bronx Defenders located in Bronx, NY, one of the interdisciplinary parent representation agencies studied in the aforementioned Casey Family Programs’ commissioned study.

Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 6 (August 2020)