Juvenile courts continue to be haunted by historical misunderstandings about the role of child welfare court, and there is a great need for advocates to effect change, said Jerry Bruce, Court Improvement Program director for the Georgia Supreme Court Committee on Justice for Children, during the Law Week 2018 keynote lunch on Tuesday, April 3.
Juvenile courts arose out of the need to protect children from abuse and to deal with children who had committed crimes, and initially operated as a quasi-legal forum. These “kangaroo courts” were not governed by policy or procedure, Bruce said.
“Basically, the judge was like a social worker in a judicial robe, who was not bound by rules of evidence, not bound by rules of procedure—either criminal procedure or civil procedure—not bound by things like due process and notice,” Bruce said. “[The judge] basically had an unbridled equitable discretion to dip his or her fingers into the lives of the families coming before the court to do whatever seemed right to the judge.”
Because of this philosophical ambiguity of its origins, child welfare law has not been developed with the same vigor as other areas of the law, Bruce said. In addition, the constituency of juvenile courts tend to be “voiceless” children and very poor people who generally don’t have representatives to speak for them before policy makers.
“There hasn’t been a real push to develop the statutory framework of child welfare law… even though child welfare law on its most basic level deals with the exact same constitutionally protected liberty interest that we deal with in criminal law courts,” said Bruce, who has been a parent attorney, guardian ad litem, prosecuting attorney, delinquency and adult defender, special assistant attorney general representing Georgia’s child welfare agency, and a juvenile court judge.
Strides are being made to reform the juvenile system—Georgia revised its juvenile code in 2014—but problems still exist. It’s a fairly frequent occurrence for judges to disregard evidence and make rulings based on their discretion, Bruce said. One area in which problems are most apparent is in termination of parental rights rulings, which cuts the legal relationship between a child and parent (as well as the rest of the child’s biological family).
“Termination of parental rights is one of the most legally violent results outside of imprisonment and capital punishment that the law can inflict,” Bruce said.
In recent years, the court of appeals has begun to make it more difficult for courts to terminate the rights of parents. From 2005-2008, only 12 percent of published termination of parental rights appellate decisions in the Georgia Court of Appeals were disturbed on appeal—they were consistently affirmed. By 2017, 67 percent were being vacated, remanded or reversed.
“The Court of Appeals [is basically saying] what really matters is there is a fundamental liberty interest in the integrity of the family that’s being violated by the state, and we are going to construe these cases very strongly against state action,” Bruce said.
The lack of a solid framework is also an opportunity for those in the legal field to make an impact in the development of child welfare law.
“Individuals can make a big difference in this field right now, both on the level of scholarship and on the level of practice, procedure and training. We need a real influx of highly trained, motivated, passionate people not only to do advocacy in juvenile court, but also to speak legibly to legislators and policy makers about what goes on in juvenile court, and to think about the goals of juvenile court, what it means for the state to interfere in the custodial relationship of parents and how that should work,” Bruce said.
He foresees child welfare law growing in importance as the parameters of the fundamental liberty interest for termination of parental rights cases gets fleshed out.
“I discovered when I was a judge, the most powerful way to change a judge’s behavior is to have consistent, intellectual, vigorous and informed advocacy day in and day out,” he said. “When you watch attorneys give impassioned, zealous and informed advocacy for children and parents in these courts it’s amazing, it’s very empowering, it gives people a voice who don’t have a voice usually in our society.”
He implored students to get involved, even if through pro bono work. “You can make a difference in this area,” he said.