Yellowstone County has the busiest District Court in the state and the largest caseload for child neglect and abuse cases.
This month, two of our judges, Jessica Fehr and Ashley Harada, plan to start a pilot program that will expedite the first court hearing in child welfare cases with the aim of getting children safely out of the foster care system sooner.
Although Montana law requires only that judges hold a hearing within 20 days after children are removed, the pilot program will schedule that first hearing within 72 hours. The judges plan to hold "emergency protective services hearings" on Mondays and Thursdays. The plan is for the parents to meet with public defenders before the hearing starts, make appointments for visits with their children and schedule a chemical dependency evaluation.
All eight Yellowstone County District Court judges handle child neglect and abuse cases. Only those assigned to Harada and Fehr will be in the pilot program to start. Why aren't all cases being expedited?
The answer involves the severe lack of resources in Montana's Child Protection System, as well as the heavier-than-average overall caseloads in this judicial district.
In child neglect and abuse cases, each birth parent is entitled to legal representation. That means at least two defense lawyers per case, and only one can be from the Montana Office of Public Defender, the other will be a contract attorney from private practice to avoid conflict of interest. Often, a group of siblings will have more than one father, or more than one mother. Each of those parents must have an attorney, so three defense attorneys per case isn't unusual.
The children also need legal representation to advocate for the child's best interest. In Yellowstone County, there are only three attorneys to share that huge job. These guardians ad litem recently were carrying caseloads of more than 300 children each. Court Appointed Special Advocates, trained but unpaid volunteers, also work on the children's behalf, but there are many more children in foster care than there are CASAs.
The Yellowstone County Attorney's Office represents the state Department of Health and Human Services in child protection proceedings and has attorneys assigned full time to that work.
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Then there is the understaffed DPHHS office where caseworkers have had triple the nationally recommended maximum caseload of 15 to 20 children. The child protection office also has had high turnover for years, so nearly half of the front-line employees doing this difficult job are relatively inexperienced.
Fehr and Harada are commended for spearheading this effort. Engaging parents soon after the children's removal may motivate parents to make changes to become safe parents. In the majority of cases, that means parents have to stop abusing meth, alcohol and other drugs. They must get addiction treatment and stay in recovery. Many negligent parents need counseling for mental illnesses or anger management. Most need parenting education to learn about normal child development and raising healthy families.
What Harada and Fehr propose won't be easy, considering the number of court officials, including a court reporter and District Court deputy clerk, who must be present for each of these hearings. It may be tough to get everyone together within three days for every neglect/abuse case assigned to these two judges. But the system simply must work better for the children. Three days is a long time when you're 4 or 6 years old; 20 days is forever.
It's important that the pilot project will track and document case outcomes. Parents will be directed to download a phone app that will remind them of their case hearings, visits and appointments. A social work graduate student has volunteered to write a manual so that the program can be expanded and shared with other jurisdictions.
Over the years, Yellowstone County judges have started other initiatives to help foster children, including holding mediation sessions soon after removals where all the parties, except the judge, meet to agree on steps toward safe reunification. Judge Greg Todd presides in Family Recovery Court, which works intensively with severely addicted parents. Judge Rod Souza leads the Indian Child Welfare Act Court team that focuses on children whose cases involve the Crow, Northern Cheyenne or Fort Peck tribes.
Judges are key to making the child protection system work better, but they are limited by the resources devoted by the state to these vulnerable children. Children are almost always better off in their own homes — if they can be kept safe. It takes a whole court and child protection team to help achieve safety for children who have already suffered neglect or abuse.