Colorado kids could get bigger say in abuse and neglect cases

28 other states already use client-directed counsel

By: - January 4, 2022 5:00 am

Makita Cotto grew up in the foster care system and supports a proposed reform to Colorado’s child welfare system. A proposed state law would change the standard in child welfare cases to client-directed standard, meaning state-provided attorneys would advocate for what their 12-and-older clients would want, rather than strictly what an attorney might deem to be in the client’s best interest. (Carl Payne for Colorado Newsline)

Makita Cotto got home from school one day to face unwelcome news from her foster mother.

A judge had forbidden Cotto, who was 15 at the time, from ever speaking with her biological mother or brother.

“If I did, then I was facing contempt of court at 15,” Cotto, now 36, recalled. She immediately got on the phone with her state-provided attorney, also known as a guardian ad litem, who had asked for the court order.

“Why didn’t you ask me how it impacted me?” Cotto remembered saying. “Did you think about how I felt? You all made the decisions but don’t have to live with this, I do.” The conversation lasted hours, she said, but didn’t change her reality.

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That memory comes to mind when Cotto considers the movement underway to shift how Colorado attorneys at the Office of the Child Representative advocate for young people in court.

“It’s one of those ways to help start to teach these youth how to do problem solving, how to be decision makers, how to think through right and wrong, and honestly how to start to advocate for themselves,” Cotto told Newsline.

“This will help these youth feel seen in their case as a human and not a case number,” she added later in an email. “Their input matters.”

28 states already use client-directed legal representation, according to a fact sheet on the upcoming Colorado bill. Some examples include Arizona, Connecticut, Kentucky, Louisiana, Massachusetts, Maryland, Nevada, New Jersey, New York, North Dakota, Oklahoma, Vermont and West Virginia.

Some states require the transition to client-directed representation at a specific age, including Idaho (12), Minnesota (10), New Mexico (14), Washington (8) and Wisconsin (12).

Currently, guardian ad litems who contract with the state are directed to advocate for what they believe is in the best interest of a child in the state’s custody. That means sometimes going against what the children themselves would like, when it comes to questions such as who the child is placed with, how often the child can meet with their parents and how long the visits should be.

State Reps. Lindsey Daugherty, an Arvada Democrat, and Tonya Van Beber, a Weld County Republican, are crafting legislation to change that. Their bill, following the lead of 28 other states, would require the state-provided attorneys to advocate for the goals of the children they represent in abuse and neglect cases. The change would only apply to kids 12 and older, while younger children would still have their perceived best interests, rather than their wishes, represented.

“In Colorado, we landed on 12 for a number of reasons,” said Chris Henderson, executive director of the state’s Office of the Child Representative. “One of the most compelling reasons is 12-year-olds have to consent to their own adoption, so they already have a huge say in their life.”

In legal terms, this would mean a shift from a guardian ad litem model to client-directed counsel.

Including the youth perspective

Daugherty is familiar with the court dynamics in child welfare cases. She’s been working as a guardian ad litem in Colorado for about eight years, she said.

“What we’ve heard from a lot of the juveniles who’ve gone through the system is that they wish they could have felt more empowered as we’re going through their cases,” Daugherty said. “They think that this would have increased their voice and how much they would have been heard in court, and also forces their attorneys to really sit down and go through the pros and cons of each situation with them.”

A lot of these children who are taken into custody, this isn’t the first time this has happened, and they have way more responsibilities than any child should ever have to have in a childhood.

– State Rep. Lindsey Daugherty

By the time they reach 12, many of the children involved in child welfare cases have already been forced to fend for themselves in many ways.

“A lot of these children who are taken into custody, this isn’t the first time this has happened, and they have way more responsibilities than any child should ever have to have in a childhood,” Daugherty said. “A lot of them have had to care for younger siblings and be the parent. And so because of all of that responsibility, they really, really want to have a voice.”

A bill that Daugherty and Van Beber sponsored last year — along with Sens. Rachel Zenzinger, an Arvada Democrat, and Bob Rankin, a Republican from Carbondale — allowed foster youths ages 18 to 21 to continue to receive some child welfare services, if they so choose. Following the passage of that legislation, House Bill 21-1094, foster youths who choose to remain in the system after turning 18 receive client-directed counsel, but younger children are still subject to the guardian ad litem, or GAL, model.

Makita Cotto grew up in the foster care system and supports a proposed reform to Colorado’s child welfare system. A proposed state law would change the standard in child welfare cases to client-directed standard, meaning state-provided attorneys would advocate for what their 12-and-older clients would want, rather than strictly what an attorney might deem to be in the client’s best interest. (Carl Payne for Colorado Newsline)

Under the state’s current system, guardian ad litem attorneys working with the Office of the Child Representative must visit a child at home and at school to help them determine what’s in the best interests of that child, and they fight for that in court — even if it’s not what the child wants.

The requirement for attorneys to conduct an independent investigation into each case wouldn’t go away under the proposed switch to client-directed counsel, Henderson said: “It’s important that we have the resources, both financially and time-wise, to make sure GALs and counsel have the time to do that.”

Henderson stressed that the change would not necessarily mean that a judge does what a child wants, or even that an attorney always advocates for a child’s exact wishes, if it’s unlikely that a judge would grant them under state law. For example, a judge wouldn’t let a child go home to a family member who had sexually abused them, even if that’s what the child wanted, so the attorney would let the child know that request wouldn’t be possible to argue for in court. They might work together on crafting a request that would be considered more reasonable, like an extra hour of visitation.

But the attorney would fight for what the child wanted whenever possible.

“The judge still makes the final decision, and that may mean that the child does not get what they’re requesting,” Henderson noted, adding that a conversation with a former foster youth who’d had client-directed counsel drove home an important point.

“(She) told us that she never got what she wanted,” Henderson recalled. “She didn’t get to go home, she didn’t get any of her requests granted, but she was able to live with it because someone fought for it. She was a party in the proceeding, just like her parents and everyone else, and even though it didn’t go the way she wanted, she could live with it, because she had a true advocate in the courtroom fighting for what she wants.”

The proposed law would authorize the Office of the Child Representative to recommend updated practice standards for attorneys dictating how to provide client-directed counsel for kids 12 and up, according to Ashley Chase, staff attorney and legislative liaison with OCR. The chief justice of the Colorado Supreme Court would ultimately decide whether to accept those recommendations, which would be implemented in 2023.

“We have a robust training program currently, and we will provide training to attorneys and potentially other partners in the system about this change to make sure implementation goes as smoothly as possible,” Chase said.

Evolving system

Down the road, Henderson foresees better results for families.

“My goal is … that (children) have a sense that their voice was heard and that based on that sense of having their voice heard that we have better outcomes, such as quicker times to (permanent family placement), more kids staying home, more kids returning home and never being filed in the system again, more kids graduating high school or getting their GED,” he said.

Chase anticipates psychological benefits, too.

“What we’ve heard from other states is when a youth feels like they really got that fair shot and were heard, even when they don’t get the result they want … (that) has positive outcomes for the youth just when it comes to mental health and kind of feeling empowered,” she said.

As of July 1, there were 9,769 children involved in open abuse and neglect cases with the Colorado Department of Human Services, including 4,235 in out-of-home care.

Colorado’s child welfare system has had its share of negative headlines in recent years, including a serious problem with children running away from residential facilities, exposed in an investigation by Colorado Sun and 9News, as well as racial disparities among families involved in the system and case worker staffing challenges.

But the system is undergoing a major overhaul spurred by federal legislation, which would complement the shift from a guardian ad litem model to a client-directed model, Chase said.

The implementation of that 2018 law — known as the Family First Prevention Services Act — is already underway in Colorado. It allows local child welfare agencies to use federal funding for prevention services such as parenting training and mental health programs, and it encourages placements with foster families rather than in group home settings.

Cotto served on Colorado’s Family First Implementation Team, which helped advise the state Department of Human Services on how to get those changes rolling. She’s advocated for policies that benefit youth in the child welfare system, and she coaches high school basketball, where she serves as a mentor to kids around the same age as she was when she got that court order.

Cotto believes that while the approach to child welfare has changed since she was a teenager, some of the same core problems remain.

“I was in foster care in the late ’90s and early 2000s,” Cotto said. “My mom was a drug dealer, and so I already had a target on the back that I was going to grow up to be just like her. The narrative, right, and the world has shifted, so I believe that the reasoning behind a lot of decisions have shifted and the folks that are doing the work are very different, and yet these kids still don’t have a voice.”

“I do believe they think the decisions being made are in the best interest of the youth, but they don’t live the consequences of the decisions, they just make them and go home to their families at the end of the day,” she added later.

Cotto thinks youth deserve a seat at the table. If the client-directed model had been in place when her case was in court, she said, she would have had a better sense of how to weigh right and wrong when she emancipated from foster care at 18.

“My voice was the only voice missing in the courtroom that day,” Cotto said of the judge’s order forbidding her from speaking with her mother and brother. “I was underestimated, and all kids are, about their maturity and understanding of what’s right and wrong for them.”

“They never got the most important perspective that day,” she added, “which impacted my view of my voice. It took me a long time to learn that people hear me and care when I speak. I never believed what I felt mattered because I never had a say.”

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Faith Miller
Faith Miller

Reporter Faith Miller covers the Colorado Legislature, immigration and other stories for Colorado Newsline.

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