Using Non-Judicial Court Staff To Help Achieve Permanency for Children

In discussing ways to improve a court's ability to achieve permanency for children, people often focus on the responsibilities of judges, attorneys and caseworkers. The activities of non-judicial court staff¹ are often overlooked, even though their activities play a central role in the functioning of the court and can have a significant impact on the court's ability to achieve permanency for children.

To learn more about this issue, the ABA Center on Children and the Law briefly studied the responsibilities of non-judicial court staff in several courts around the country. Some ways of defining or allocating responsibilities appeared common while others stood out as somewhat unusual or innovative.

This article combines a three-part series, based on this research, first published in the Center's Child CourtWorks newsletter. The first section discusses innovative docketing practices; the second summarizes additional activities reported to help achieve permanency in a timely and effective manner; and the third addresses the pre-appointment of counsel as a means to improved outcomes.

The examples are not intended to be exhaustive. They are designed to highlight changes in staff responsibilities that were reported by judges, magistrates and non-judicial court staff in several courts around the country to increase courts' effectiveness and efficiency. Some responsibilities are less time-consuming than they sound. Many do not require any more time than current practice, once the change is instituted.

A COMMON METHOD OF DOCKETING
It is still common for child welfare courts to employ what some refer to as "cattle call" dockets. These are dockets in which the court clerk (or equivalent) either assigns all cases the same morning time (e.g., 8:30am) or assigns some cases the morning time and other cases an afternoon time (e.g., 1:30pm) even though cases are heard all day. This means that many people, including social workers, attorneys, children and their families, wait several hours or more for their cases to be heard.

More Efficient Docketing Systems To alleviate the problem of long waits for cases to be heard, some courts have abandoned cattle call docketing to implement more efficient docketing practices.

Block time docketing. With this method, the court clerk (or equivalent) assigns groups of hearings to blocks of time, with each block dedicated to one type of hearing. All parties to the hearings assigned to a certain block are assigned the time the block starts. In this way, there may be a wait but, even if no cases settle, the wait should be no longer than a certain percentage of that block. Different types of hearings are given different length blocks of time, and the block of time for a given hearing type is generally standardized. If a complicated, contested hearing requires all day, then the hearing is simply given an entire day instead of being placed within a block.

For example, if a certain type of abuse and neglect hearing takes about thirty minutes, a court may decide to devote one and a half hours each day to such hearings. The clerk may then schedule three of these hearings during that block. The assumption is that some of the hearings will end early and others will run late, with everything balancing out in the end. However, if the block of time set for this type of hearing runs from 1:00pm to 2:30pm, the clerk assigns 1:00pm as the court time for all hearings scheduled during this block.

Time certain (exact time or actual time) docketing.² An even more efficient method, time certain docketing requires the court to calculate more precisely how long different hearings will take on average. These averages are used as standard hearing times. The estimates may be obtained from the judges and attorneys or through another means. The time used as a standard for each kind of hearing (e.g., 20 minutes for X hearings, 30 minutes for Y hearings) can be shortened or lengthened as experience dictates. In other words, over time, the court may decide that X hearings require 25 minutes rather than 20 minutes, and the docket can be adjusted accordingly.

In addition, the standards can be departed from in individual cases when the judge, referee, court clerk or attorney determines that a specific future hearing will need more time. Jurisdictions vary in the degree to which they evaluate individual cases to determine whether a hearing needs more or less time than the standard. In jurisdictions that set exact times for contested hearings as well as uncontested hearings, the judge, referee or court clerk is more likely to talk with the attorneys and assess the complexity of the case, number of witnesses and other factors to determine how much time to allot.

Combination of block time and time certain docketing. In many time-certain jurisdictions, the clerk assigns any kind of hearing to any available time before the judge assigned to that case. For example, the clerk may set a review hearing for 10:15am, an uncontested adjudicatory hearing for 10:45am and a dispositional hearing for 11:45am.

Other time-certain courts, however, choose to set aside certain blocks of time for certain types of hearings. Because of the number of judges and range of case types each judge hears, these courts assign an exact time for each hearing and limit assignment of each type of hearing to certain days and blocks of time. For example, review hearings may be scheduled on Tuesdays, between 11:00am and 1:00pm, for Judge A, and on Thursdays, between 2:00pm and 4:00pm, for Judge B.

Unlike the block method described previously, however, when the clerk schedules a hearing in this combination method, the clerk assigns a specific time (e.g., 11:30am) within the designated block (e.g., 11:00am - 1:00pm) for that type of hearing. When all the slots within that block are full, the clerk starts assigning times during the next day that has available slots for that type of hearing with that judge.³

Not grouping by hearing type allows more flexibility in the docket but may present more challenges in jurisdictions with a greater number of judges or with broader jurisdiction, for reasons of coordination explained below. In addition, grouping like hearings together provides a degree of continuity in thought and procedure that some judges may prefer.

Some places use time certain docketing for contested hearings and block time docketing for simpler hearings. Others employ the reverse approach--time certain docketing for more straightforward hearings and block times for contested hearings. Moreover, some jurisdictions schedule specific times for all hearings.

Some form of "time specific" docketing has proved possible both in courts that handle only abuse and neglect cases⁴ and in courts that handle a mix of case types.⁵ It has also been successfully implemented in courts that have always (even until quite recently) used a cattle-call approach.⁶

Key Issues
Some key issues to keep in mind when instituting a block time or time certain docketing system include:

• If the court blocks case types together and has multiple judges who preside over the same type of hearing, the system might need to ensure that only one judge hears a certain type of hearing during any given block of time. For example, in courts that do not have a set team of attorneys assigned to one judge, an attorney may need to appear before multiple judges in the course of a day.

  Therefore, if an attorney handles primarily or exclusively one type of case and more than one judge hears that type of case, it is important for each judge to schedule that block of cases at different times so that few conflicts occur for that attorney. (Conflicts can arise whether or not the court is a one judge/one family court.) Although an attorney can certainly tell a judge that he or she has a conflict and needs another time, the system should not be set up in a way that increases the number of conflicts.

• To ensure that all times are filled, the clerk or judge should go to the first available date and time for that type of hearing or, if the docket is not broken up into blocks by hearing type, for that length of hearing.
• Emergency hearings (e.g., shelter care/temporary custody, protective orders, arraignments) might need to be heard by a separate judge or on a separate day. Jurisdictions differ on the degree to which they consider emergency hearings amenable to exact time docketing, whether or not these hearings are separated out. Some jurisdictions have found these hearings throw off an exact-time docket.
• The more time certain the scheduling and the bigger the caseload, the more the court will need to prioritize different types of hearings. If a court runs a time-certain system with blocks of time for each type of hearing, the types of hearings given smaller blocks of time will more quickly move out on the calendar. In other words, the court may be forced to schedule six months into the future for a certain type of hearing. In order to address this problem, either more time needs to be added to the court day or time needs to be taken from one block of time and allocated to a block assigned to another type of hearing.

  Even courts that do not block hearings will run into time problems when caseloads are too high. As a result, some courts that have a time-certain system have chosen to double-schedule hearings on a limited basis, depending on the probability that a certain hearing will settle or otherwise not go. Of course, when both scheduled hearings do go, the schedule is thrown off. To avoid this problem, some courts have emphasized pre-trial conferences and greatly reduced the number of cases that settle minutes before the scheduled contested hearing.

• Education and collaboration are key in the process of this change. Attorneys in a time-certain court system will be especially concerned about their ability to meet the tight schedule and coordinate this system with different systems in other courts.

Although these systems have been instituted successfully, the viability of time certain docketing from the perspective of judicial efficiency depends on parties being prepared and documents being ready beforehand. Therefore, the demands and rewards of the system need to be explained to the attorneys and applied consistently and effectively. Some jurisdictions assign hearing times 15 minutes before the hearing will actually start to allow for conferencing among the attorneys and ensure a prompt starting time. Also, other courts in the jurisdiction need to understand the system so that attorneys can meet the assigned times.

Benefits for Court Participants
The benefits of more precise docketing practices include:

• Attorneys and caseworkers have more time to spend working on their cases, obtaining services for clients, submitting necessary documentation to the court, monitoring cases, and otherwise serving their clients and moving cases along. As a result, clients are better served and permanency is expedited.
• Parties and witnesses are more likely to be present, helping ensure a more efficient system and more timely resolution of important case issues.
• All participants have greater respect for the court.
• All participants can plan and keep their schedules, in and out of court, which helps prevent conflicts with parents' work schedules and case plan obligations while giving attorneys and caseworkers more control over their caseloads.
• There is less risk of problems (e.g., disruptions) due to people becoming frustrated and bored while waiting.

Improved docketing practices by non-judicial staff hold significant promise not only for moving children into permanent placements faster, but also for making the court experience more positive.

ON-SITE DRUG, ALCOHOL ASSESSMENTS & PATERNITY SCREENING
Most courts do not have someone on site to perform drug and alcohol assessments or paternity screening. Although a court can hire an additional court employee to perform the assessments or tests, it can also pursue collaborative efforts with the local Department of Health or Mental Health.⁷

On-site staff can provide relatively quick assessments of substance use or abuse by current or potential caregivers and of the paternity status of putative fathers. The findings can be reported within a day or two, much less time than most external assessments take. The person conducting assessments can also be a source of referrals to service providers.

Benefits. Benefits to on-site assessments and testing include:

• courts can better ensure the well-being of children by making faster and more accurate decisions related to issues such as the child's safety and the parent's fitness;
• referrals, and therefore services, can be made and implemented in a more timely fashion, giving parents a better chance at rehabilitation within the statutory deadlines and, if parents are unsuccessful in treatment, allowing cases to be resolved more quickly;
• parties are deterred from making false accusations;
• courts can avoid court delays and continuances by establishing paternity more quickly;
• challenges to court orders, including termination of parental rights, can be reduced so stability of a child's placement increases; and
• due process for parents can be better assured.

DEADLINE TRACKING ON INDIVIDUAL CASES
Many courts do not track their compliance with federal and state statutory deadlines. Of those that do, tracking often consists of the periodic printing of statistics showing how the court's overall caseload is meeting statutory deadlines. Several alternative methods may improve this system.

Paper tracking.⁸ A court staff person can use a "tracking sheet"⁹ that on one side has a timeline with the statutory deadlines for all hearings that must take place in the case. The dates are projected outward from the actual date of the initial hearing. Although a number of factors in the case may cause the ultimate dates of subsequent hearings to be different than the mandatory dates, having the framework keeps everyone focused on trying to meet the deadlines. The tracking sheet, specific to each case, is distributed to all the parties and other key people, as well as to the judge. The court person who generates it also retains a copy of the timeline sheet.

The court staff's copy has a second side, which contains blanks for the actual dates of the hearings as well as additional, important events (e.g., pre-trial conference, trial, mediation, termination of parental rights (TPR)/relinquishment hearing, report due dates). The staff person then uses whatever source necessary (e.g., minute orders) to update the sheets and compare the actual dates with the anticipated, mandatory dates on the other side.

When a case is behind schedule or something should have occurred but did not (e.g., a report or treatment plan was not submitted, a necessary hearing date has not been set), the staff person can alert the relevant judge and, when appropriate and necessary, the parties.

Computer tracking. Another means of tracking is on a case-by-case basis through the computer. The staff person can track cases in the computer in the same fashion as described above or can establish a tickler system as described below.

Based on personal notes, minute orders or other sources, the staff person monitoring deadlines notes in the computer when the case needs to be reviewed. This might be a day when some document is due to the court or after the next hearing when the status of the case simply needs to be checked. On that date the tickler system alerts the staff person of the case.

For example, if a court order indicates a disposition report is due by a certain date, the staff person may list that as the date he or she should be alerted to ensure the disposition report is completed and sent to court. If, in the course of this process, the staff person also identifies a problem in a given case, he or she will try to address it and/or alert the relevant person of the problem. The computer system also allows for tracking what percentage of all cases are meeting the deadlines.

Benefits. Improved case tracking procedures provide numerous benefits:

• deadline alerts to the court on specific cases help identify problems for early resolution, thereby keeping families from getting stuck or delayed in the system;
• deadline alerts assist the court in meeting statutory timelines;
• timeline sheets help caseworkers, parents and children's attorneys in their efforts to keep up with timelines; and
• timeline sheets help parents understand the pressures under which the case must be heard and resolved.

PROVIDING EARLY CASE INFORMATION TO THE JUDGE
Often a judge does not receive information about a case until the parties first appear before him or her. Even when a court report is filed at the emergency hearing, the information is not as helpful as it could be because of the time of the filing.

Providing information prior to the initial (emergency removal) hearing. In jurisdictions in which no information reaches the court until the initial hearing, especially when the initial hearing occurs more than 24 hours after removal, the caseworker initiating the emergency removal can call a designated staff person and provide critical information about the case. This information can include the names, addresses and birth dates of the children and parents; the protection issues; and any history of the family in the court system. (Information about protection issues would be based on the allegations to be presented at the emergency hearing, not on any additional evidence supporting the allegations.)

The staff person can then fill out a standard form¹⁰ containing the initial information and send it to the appropriate judge. The forms can also be provided ahead of time to the parents' and children's attorneys. In jurisdictions in which court reports are already submitted to the court prior to the initial hearing, a staff person can ensure reports are on time.

Benefits. Benefits of this practice include:

• the judge has more time and information to focus on the problems and issues in the case, ask appropriate questions, present ideas about appropriate treatment, and make better determinations about placement and safety;
• the initial hearing is more efficient because the judge is spending less time trying to identify who all the parties are and what has happened;
• the judge is alerted to old cases that should be re-opened and to any former attorneys and caseworkers who should be brought back into the case;
• the judge demonstrates greater knowledge and command of the case, thereby evoking in parents more respect for the court; and
• a more effective outcome of this hearing lays a stronger record for future hearings, especially if another judge has to pick the case up later in the process.

CREATION AND DISTRIBUTION OF COURT ORDERS
In many jurisdictions, the county attorney submits a court order days, weeks or months after the hearing. Copies are distributed to the other parties either by the county attorney's office (at the time of the court filing) or at an even later date by the court.

Two more efficient methods. The person responsible for creating the court order (e.g., the county attorney) submits a draft hard copy to the court. A judicial staff person then types the proposed court order into the court's computer. If the judge has a computer on the bench, the proposed order can be placed on the judge's computer. During or at the end of the hearing, the judge or staff person modifies the order according to the judge's determinations, based on the testimony provided at the hearing.

The judge or staff member then prints out the order and provides signed copies to all the parties before they leave the courtroom. The judge may also use the child welfare agency's court report to create the draft order.

If the judge does not have the computer capacity to revise and print out the order from the bench, the judge's amendments to the draft order can be noted by the judge or the court staff member attending the hearing. The court staff person then modifies the order, prints it and distributes it within a few days.

Using a second method, for those jurisdictions with the computer capacity and compatibility, the county attorney can e-mail the proposed court order right to the judge. Alternatively, if the court relies on the court report as its proposed court order, the caseworker can e-mail the report to court staff, who can then create the proposed order. Again, whether this proposed order can be modified and distributed from the bench or must be modified and distributed soon after the hearing depends on the technological capacity of the court.

Benefits. More timely creation and distribution of court orders include benefits such as:

• disputes over the accuracy of the court's order are minimized because the judge participated in the creation of the order;
• disputes over interpretation of the order or confusions about the order are raised and resolved more quickly;
• parties may fulfill their court-ordered obligations more quickly;
• parties leave the court with a clearer understanding of their obligations and the judge's conclusions;
• administrative time is reduced by all who formerly participated in the process; and
• in jurisdictions that provide copies of court orders to the parents, problems presented by unstable addresses are eliminated (for court orders).

SCHEDULING HEARINGS AND NOTICING PARTIES
Many courts still have their clerks (or equivalent) select hearing dates after a hearing and outside of the courtroom. As a result, court staff notify parties of the next hearing date only by mail. If this date presents a conflict for one of the parties, that party is forced to rearrange an already tight schedule or court staff must reschedule the hearing. Staff must then contact all parties to establish a workable date. Alternatively, court staff go through the hassle of contacting all the parties up front, thereby adding administrative time but reducing the chance of conflict. Either way, this system often makes parents dependent on their attorney to remind them of the court date.

In-court scheduling and notification. Scheduling can be done in the courtroom at the end of a hearing with a docket book or a computer. The judge or court staff member attending the hearing looks at the court calendar to see what days are available for the next hearing. The staff person or judge then calls out the first available date, the date is altered if parties indicate any conflicts, and a final date is set.

The counsel and caseworker are responsible for writing down the agreed-upon date in their calendars. The person handling the date selection or another staff person, e.g., the bailiff, writes down the date and hands the information to the parents. Those who are not present at the hearing are notified in the traditional manner, i.e., by mail. If court orders are issued at the hearing, as described above, the next hearing date can be printed on the order.

Benefits. Benefits resulting from more efficient scheduling and notification practices include:

• parties can immediately indicate a conflict of schedule so hearings can be set to accommodate all schedules to the degree possible, thereby avoiding re-scheduling time and unnecessary delays or continuances;
• parents are more likely to attend the next hearing because they know the hearing date before leaving, which allows parents to plan in advance and helps avoid problems with transient parents; and
• parties feel their needs are considered so they feel more empowered by and have more respect for the court.

These examples of innovative court staffing demonstrate that small changes in procedure have the potential to make a significant impact on the lives of children in the child welfare system and their families.

EARLY APPOINTMENT OF COUNSEL
The early appointment of counsel can play an integral role in moving cases through the court system faster and with improved outcomes.

Common Methods of Appointing Counsel
When parents' or children's attorneys (or guardians ad litem) are appointed in many courts, attorneys wait around the courthouse to be appointed at the initial (usually emergency) hearing. In other courts, attorneys are appointed after the initial hearing based on the order in which their names appear on an appointment list. In the latter group of cases, a continuance must be granted until someone can be appointed.

In addition, attorneys often receive only the name of the child (or parents). The attorneys must then track down the parents or caseworker to learn more information about their clients. Months often pass before the attorneys have contact with their clients.

Several Approaches to Pre-Appointment
Preferable approaches to appointment of counsel involve some variation of "pre"-appointment, i.e., appointment of counsel prior to the initial court hearing.

Children's counsel. In one method, court employees have a list of children's counsel or the contact for the organization representing children. The same employees have a system for learning (from the caseworker or county/district attorney's office, for example) when a new case is or will be filed.

Upon receiving notice of the imminent filing, the court employee calls the organization or a panel children's attorney who is able and willing to take the case and informs them about the case. Preferably, this information will contain details regarding the allegations and identifying information for all key people, including the child, family members and caretaker.

Parents' counsel. In one variation of appointing parents' counsel, parents are informed of their right to have a lawyer represent them when they receive notice of an emergency removal. The form also tells them to call a specific number at the court to have an attorney appointed.

If the parent calls the court contact person before the emergency hearing, the contact person does a preliminary financial assessment over the phone. If the parent appears to qualify for a court-appointed attorney, the contact person calls a parents' attorney or organization representing parents (e.g., Public Defender's Office) and describes the case. The attorney is expected to call the parent to set up a quick meeting or phone interview. The court employee also calls the parent with the attorney's information. When the parents come to the hearing, they fill out the financial qualification form for the record.

If parents do not identify their need for an attorney until the day of the hearing, the contact person has the parents fill out the form that day and assigns them counsel at that time. Parents are routinely told to arrive at court early enough to permit consultation with an "on-duty" parents' attorney who can provide representation at the hearing.

A slightly different approach is to inform the parents directly of the name of the attorney or organization at the time they are notified of the initial court hearing. If one organization (e.g., the Public Defender's Office) represents the parents, a form stating the name and number of the person they should contact can accompany notice of the hearing.

If the jurisdiction functions under an attorney panel system and attorneys are assigned specific days, caseworkers should know which attorney is scheduled to appear which day. If this is the case, the caseworkers can leave the name and number of the parent's attorney along with the notice of the hearing date. If there is more than one attorney assigned to each day, as is true in many jurisdictions, some additional coordination will be needed.

Under a third method, also better than having attorneys and clients meet at or after the initial hearing, attorneys can be appointed at the hearing but meet with their clients prior to the hearing. Parents can be told to arrive a certain amount of time before the hearing and one or more attorneys can be assigned for each day on which temporary custody or shelter care hearings occur. This would guarantee that all parents have counsel during the hearing and would allow time for consultation prior to the hearing.

Benefits
The benefits of pre-appointment include: