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Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol. You can sign up on his website to receive the Capitol Updates newsletter by email.
Continuing the good work being done this year in interim studies, the House Committee on Children, Youth and Families held a study last week on the “prosecutorial” versus the “agency” method of attorney representation in child welfare cases. The study was requested by Rep. Pat Ownbey, R-Ardmore, who is chairman of the Appropriations Subcommittee on Human Services. His committee, along with its Senate counterpart, chaired by Sen. Kim David, is largely responsible for writing the appropriation for the Department of Human Services. So it’s significant that Rep. Ownbey is taking an interest in how the parties are represented in juvenile court.
In Oklahoma, a child welfare case begins in court when a petition is filed by the District Attorney on behalf of the state alleging that a child is a “deprived” child. The filing starts a legal process for the child to be made a ward of the court and supervised or removed from its home. If the child becomes a ward the judge typically orders the Department of Human Services (DHS) to provide protective services or even take custody of the child. In our “adversary” system of justice all sides are entitled to be represented by attorneys who present the case in their clients’ most favorable light. Then the judge, who is neutral, makes a decision that is in the best interest of the child. All parties are supposed to approach a child welfare case with the understanding that the ultimate goal is the best interest of the child, but this can get quite contentious. The stakes are high for the child, the family and the state.
Under current Oklahoma law, an attorney, who is obligated to represent the expressed interest of the child, is appointed to represent the child. The parents may either hire an attorney or have one appointed to represent them if they are indigent. The state is represented by the District Attorney. As a division of the state DHS is also represented by the DA. It’s been this way for a long time, and it’s now being called the prosecutorial method. Some states have gone to an agency method where the agency operating on behalf of the state, like DHS, has its own attorneys rather than relying on the DA.
I have some experience here, albeit dated. Having spent 4 years in college (major, government; minor, sociology), three years in law school and 3 ½ years in the U.S. Navy, at the ripe old age of 28, I found myself beginning my career as an Assistant District Attorney. Other than having been a child myself (in the not-too-distant past), those were my sole qualifications to take on full responsibility for the juvenile docket, among other duties. I made decisions about whether to file juvenile cases, whether to insist on removal, and what might be presented to the judge by agreement of the state, the parents and the child as a way to resolve the case and move forward. Fortunately I practiced before a seasoned judge, but he could only decide what reached him. Knowing that, I know now I often over-filed, just to get the child in the system for someone else to look at.
In looking at the prosecutorial versus agency model, the most compelling focus should be on getting well-prepared attorneys at every level, attorneys trained and experienced in behavioral health and family dynamics, including substance use, trauma and mental health. They don’t need to be clinicians, but they need to get enough training and have enough experience to know why they’re there and the consequences of their decisions before they start making these life-changing decisions. The question should be which method is most likely, systemically, to produce and keep these kinds of lawyers on the job.
Steve, I agree generally with what you have written. The biggest reason NOT to have DHS as the prosecutor, though, is that such a structure would put DHS clearly on the opposite side from the parents. While currently DHS may have criticisms of the parents’ efforts to get their kids back, the agency is not legally adverse to the parents. I think a better solution would be to have specially trained Asst. Attorney Generals who work throughout the state. That way you would have specially trained attorneys as prosecutors, and DHS would not be legally adverse to the parents.