ACJA 7-210 was implemented to address findings that "[d]espite sustained efforts to expand the public access to legal services, significant unmet needs persist" and that "[m]ost people living in poverty, and the majority of moderate-income individuals, do not receive the legal help they need." The question then becomes, how does this proposal benefit those lower to moderate-income individuals? It doesn't. In fact, this proposal as written may do more harm to those very groups.

The explanation statement fails to explain the real impact of this proposal. Of note, the proposal specifies the Legal Paraprofessional ("LPs") can render services for " any petitioner." This would presumably include the Department of Child Safety/the Attorney General's Office. The qualifications even include an individual who completes the "Attorney General's Office internal employee dependency training program." This proposal then opens the door for LPs to handle every aspect of a DCS case with the exception of a "contested dependency adjudication or contested termination adjudication proceeding."

There are no exclusions for the various other evidentiary hearings that occur in juvenile court. That means LPs could handle Temporary Custody Hearings (Rule 333), Disposition Hearings (Rule 339), hearings on relieving DCS from providing reunification services (Rule 340), contested Review Hearings, contested Change of Physical Custody Hearings (Rule 342—formerly Rule 59), contested Guardianship Hearings, etc. This does not include hearings that are uncontested, but parties/the court want additional information.

How is the Court going to handle these issues as they arise? Historically, Assistant Attorney Generals have been put on the spot to address things as they arise. Are the courts going to change their practice and schedule more contested evidentiary hearings to allow licensed attorneys to appear? If so, how is that going to impact the courts' calendars? How is that going to be in the parties and the children's best interests?

If DCS was excluded from this proposal, I might be willing to provide my support. I frequently come across individuals that cannot afford counsel but want to initiate dependency or termination proceedings. Those petitioners can certainly file as Pro Per, but end up disadvantaged against court-appointed counsel.

The problem is, private cases must make up a rather small portion of dependency cases; ones filed by unrepresented individuals would make up a smaller portion. As it currently stands, DCS and the AGO would be the primary beneficiaries of this proposal, which was never the intent of ACJA 7-210.

Kyle Stephenson
Attorney
40 N Central Ave., Suite 2310
Phoenix, Arizona 85004
[email protected]
cantorlawgroup.com
602-254-8880 phone
602-255-0815 fax

The purpose of the Legal Professional (LP) designation was touted as being about increasing access to justice. The discussions predating the creation of LPs were centered around making sure those without resources could competently access the legal system at an affordable price. That was the reason ACJA 7-210 was created. With this new proposed addition of juvenile law, it sure seems like the State is trying to fix a staffing problem (AGs office is known for being understaffed) by misappropriating LPs, which were designed to help regular people. I cannot recall there being any discussion of the LP designation being used to HELP the government by the government.

My comment on this is brief but my feelings on this are significant. This is a slippery slope. This is NOT about wanting to somehow protect attorneys’ income and their jobs, as I know that was perceived to be the reason members of the Bar were not overly supportive of the LP designation in the first place. This is about making sure a government agency – who is actively removing child from their parents and affecting fundamental rights (where parents are entitled to counsel) – is represented by competent attorneys who can make these constitutionally impactful decisions and adequately advise the department.

Here’s my novel idea – pay AGs more! Treat them better!

Gregg Woodnick

Woodnick Law, PLLC
1747 E. Morten Ave, Ste 205
Phoenix, Arizona 85020
[email protected]
602-449-7980

My comment on this is going to be brief here but I represented DCS many years ago and have been in private practice navigating child abuse/criminal defense cases for over a decade. From my experience, the judicial system works best where there are competent and knowledgeable attorneys on both sides. Having to deal instead with an LP who is limited in their knowledge and scope of their involvement is a recipe for disaster and or cutting corners. We need good attorneys on both sides so that children are safe and parental rights are protected. Adding juvenile law to the limited purview of an LP is an idea that is meant to save money and streamline dependency findings, not increase access to justice.

Brad TenBrook
[email protected]

In reading the responses from others, and as a CLDP who has considered the LP certification due to this notice (higher education was based on at-risk youth counseling), and after being certified now for approximately 15 years, I have a tendency to lean towards what the attorneys are saying here. How can you expect a limited paraprofessional to be competent in this area? Is there some form of extensive training program to prepare them for the ins and outs of this area of practice? It would be like asking an estate planning attorney to take on a divorce.
I believe CLDP's and LLP's are to help alleviate the need in the more basic levels of legal assistance, i.e., the areas of "self-help" legal assistance that the courts are trying to address with the websites and online filing forms and procedures. As I had stated in the task force meeting, there is an abundance of people that need lower-level assistance due to lack of understanding/comprehension of forms and procedures in basic family law, probate, estate planning, etc., and attorneys seem to be okay with CLDP/LLP's keeping that workload down. In my experienced opinion, to be involved in juvenile law/child placement would take a very comprehensive training program to be able to have an LLP make effective decisions and keep mistakes/bad decisions at a minimum.
Sherrene Caley, AZ CLDP
Show Low, AZ
(928) 532-0632

Parents have a constitutional right to parent their children. When the state intervenes in a family the state must act with great care and lawfully, taking into consideration all available information to assess the case and the likelihood of prevailing at a dependency or severance hearing. A paraprofessional, while trained in some aspects of the law, are not able to assess the merits of the case nor provide legal advice to DCS on how to proceed in a matter. The vast majority of paraprofessionals do not possess the legal education and knowledge of licensed attorneys.

The proposed rule change acknowledges the discrepancy between the legal knowledge of paraprofessionals and attorneys by the excluding paraprofessionals from conducting a dependency or severance adjudication. A paraprofessional cannot be expected to properly assess the strengths and weaknesses of a case and determine the best legal options for resolving the case without the necessary education and training.

The proposed rule change seems to suggest that paraprofessionals would only appear in non-significant dependency hearings. However, all hearings in dependency and severance matters are important hearings. At every hearing the judge must determine whether a child may return home. The reunification of a family at the earliest opportunity is of the utmost importance to the parents and children. Paraprofessionals may delay the reunification of children based on their lack of experience and legal knowledge.

Attorneys are expected to know all aspects of the law, are paraprofessional going to be held to the same standard? It is unfair to place paraprofessionals in situations they are not trained or prepared to handle. It is equally unfair to force parents and children to be subjected to proceedings were the state is not represented by counsel, resulting in lengthy hearings or continued hearings. It is foreseeable that hearings will be continued when an issue is raised that the paraprofessional is not equipped to handle, thus delaying the reunification of the family.

Paraprofessionals serve an important function in the judicial process but that function is not legal counsel. They are able to assist individuals with the legal process and forms but they are not able to represent a state agency at a court proceeding.

If a paraprofessional is sufficient to represent DCS in dependency and severance hearings, I question why the state agency requires representation at all.

I concur with the comments written Kyle Stephenson, Gregg Woodnick and Brad TenBrook.

Chris Phillis
Attorney

I am writing to comment on only one aspect of the proposal – namely that we may be creating a license with only one viable avenue for employment: the Attorney General’s Office (AGO). If an individual licensee is not hired by the AGO, there may not be another path to make a living as licensed LP in dependency law. While the proposal allows LPs to represent private petitioners and intervenors, respondents could easily render the LP ineligible to continue representing the petitioner/intervenor by simply requesting a trial.

There is reason to believe that there is a need for counsel for private petitioners and intervenors (which could include grandparents, extended family, placements of all kinds, and Tribes - particularly those from out of state, who rarely intervene under current circumstances). Many private petitioners and intervenors are currently self-represented and another commenter noted that they turn away private petitioners and intervenors who cannot afford their fee. However, it is not meaningful representation if the LP cannot represent their client in a contested adjudication. Some have expressed concerns about the ability of an LP to handle contested matters. However, there is no limit on LPs handling contested or other evidentiary matters within the other LP scopes of practice. An LP is allowed to do a trial for a divorce or special paternity case as well as for a criminal misdemeanor.

These limitations may prevent potential LPs from pursuing the dependency law endorsement to begin with.

Potential remedies include expanding the scope of practice to allow for more meaningful opportunities for the LP or nesting this scope of practice within the family law endorsement area. Suggestions for scope expansion include allowing LPs to handle contested dependency adjudications, as well as file petitions for Title 14 guardianships and in loco parentis orders under Title 25. This would allow the LP to provide a more complete range of services to the private clients they are likely to encounter and to help their client find the best solution for their family’s circumstances. A grandparent considering filing a dependency may actually be better off filing one of those other petitions, for example, and without such expansion, the LP they consult would not be able to offer those options.

Likewise, many attorneys practice in both family and juvenile court, so nesting the dependency scope within family would naturally allow the LP to offer a more complete array of services to the families that reach out to them. It would also make them a more attractive candidate at a family law firm in a “Paralegal Plus” role, which seems popular amongst family law LPs.

As an educator and academic advisor interacting with prospective LPs, I know that these are the kinds of questions they will ask when choosing which endorsement area to pursue and I will have to be frank with them about the limitations. It is important to me that we prepare them to be excellent advocates, but also that we prepare them for the realities of their employment potential.

Catherine Monro
Academic Advisor and Professor of Practice at the University of Arizona James E. Rogers College of Law
(Institutional affiliation is for identification purposes only).

I am writing to oppose the proposed rule change that would allow Legal Paraprofessionals to provide representation to petitioners or intervenors in juvenile dependency proceedings.
I am a Clinical Professor of Law at the University of Arizona, James E. Rogers College of Law. I have been the Director of the Law College’s Child and Family Law Clinic since 1996. In my role as Clinic Director, I have been supervising law students representing parties (mostly children) in dependency proceedings for over 25 years. In that role, I have a pretty good sense of how much training and supervision is required to provide quality legal representation in Juvenile Court dependencies.
The following comments are mine alone and do not necessarily represent the views of the College of Law or of the University of Arizona.
First and foremost, as I submit this, the new Attorney General has not yet responded to the proposed rule which likely impacts her office more than any other constituency. The proposal appears to be specifically designed to fix a problem that was created by the poor management of her predecessor. Since Attorney General Mayes has been in office for barely 10 days, it would seem wise to extend the comment period so that she can properly consider the proposal and weigh in.
Second, I echo the other comments that the purpose of the Legal Paraprofessional experiment was and ought to be to enhance access to legal services that otherwise would not be available to Arizona citizens. I doubt LP program was ever contemplated to be a resource for State government. Since the overwhelming number of dependency petitions are filed by the State, this proposal is not in line with the intended values of the Legal Paraprofessional program.
As a former legal services attorney and as a member of this Court’s Commission on Diversity, Equality and Justice, I fully understand and appreciate how legal paraprofessionals can help our rural and lower income citizens exercise their opportunity to be heard in our Arizona courts. The Commission was totally supportive of the LP program, so far, for precisely that reason – access to justice.
I also understand and have witnessed beleaguered Assistant Attorney Generals trying to keep up with a caseload that is too large to manage. The overload certainly affects the quality of justice in dependencies. However, vacancies in the Attorney General’s office are an entirely fixable problem – starting by giving the AAG’s who work in dependencies the same salary and opportunities for growth as other AAG’s. This is a management problem, not a reason to create a whole new class of paraprofessionals.
Last, let me echo the concerns of Chris Phillis. There are no non-significant hearings in a dependency. Many important decisions are made daily in non-adjudicative hearings as well as in child and family team meetings, TDM’s, and mediations. Our appellate courts have held that very important rights – especially the right to reasonable reunification efforts -- can be permanently waived if not properly raised in “uncontested” hearings. A proposal that is based on the assumption that non-adjudicative hearings are less important is relying on a faulty assumption.
For these reasons, this rule change should not be adopted in its present form.

Paul Bennett
Charles E. Ares Professor of Law and
Director of the Child Advocacy Clinic
University of Arizona, James E. Rogers College of Law

I oppose this amendment.

The purpose of the LP program is to increase access to justice to Arizonans who cannot otherwise afford legal representation. This is a noble goal, and I have supported the concept of the program since its inception notwithstanding my colleagues' concerns about how it might affect attorneys. The program's goal is not, however, to redistribute important governmental duties that belong in the hands of the Attorney General's Office. This comment is prefaced on the assumption that LPs receiving authorization to appear in Title 8 matters would be trained, skillful, and experienced enough to handle those duties--this comment is not about competence. Even so, the amendment as written will exacerbate, not relieve, logistical problems in the juvenile divisions of the Superior Court.

As written, the proposed amendment would allow LPs to appear on behalf of the State of Arizona (ex rel. the Department of Child Safety) in most Title 8 hearings. The proposed amendment would not allow LPs to represent the Department in final adjudication hearings, implying that those hearings necessitate the involvement of an attorney for the Department. This limitation ignores the reality that contested issues are resolved at every hearing in a Title 8 matter. As discussed more fully in Mr. Stephenson's comment, final adjudications are only one of many hearings in which contested decisions are made. The majority of dependency matters, in particular, are resolved without a final adjudication hearing based on the parent's ameliorative actions, services the Department offers, and interlocutory decisions the Superior Court makes. Issues resolved at non-final adjudication hearings include changes of physical custody, frequency and duration of parenting time, services to be offered to the parent and child, professional evaluations to be conducted, etc. Moreover, these decisions are usually made at report and reviews, pretrial conferences, the preliminary protective hearing, and other settings that were not designated as contested evidentiary hearings. Much of the time, the results of these hearings dictate the overall outcome of the controversy--not an adjudication.

Moreover, we have the benefit of a real-world preview of the problems arising from counsel other than the Attorney General's Office representing the Department in these matters. For over a year, the Department has engaged contract attorneys to substitute in for the Attorney General's Office for the adjudication of some dependency/severance matters. Although certainly those attorneys are capable and provide good trial representation for the Department, they do not usually have full authority to resolve matters on the Department's behalf, nor do they have all the information available to the Assistant Attorney General. This frequently results in questions and proposals having to be routed to the assigned Assistant Attorney General before they are considered by the Department, even for issues which the assigned AAG could have resolved in mere moments. It is reasonable to assume that LPs will be similarly stranded if an unanticipated matter needs to be addressed at a non-adjudication hearing. As it does today when contract attorneys lack authority and need to check in with the AAG, this will result in more delay and additional strain on the court's calendar through not fault of the LP or the parent.

This comment assumes, again, that LPs would be sufficiently skilled to handle Title 8 matters in the Superior Court. Whether that is feasible is also an important consideration addressed by other commenters. Even so, further disconnecting the Attorney General's Office from these cases--which they are statutorily required to handle by A.R.S. § 41-192 (among others)--will cause more problems than it could potentially solve. Approving the amendment would add more complications to a system that already struggles to meet the burdens of protecting the most fundamental constitutional rights of Arizonans. Just as parents are entitled to the assistance of counsel, so too must the importance of the Department's representation be considered. The majority of dependency cases are resolved not through adjudication hearings, but through the combined efforts of all parties making important decisions as quickly as possible throughout (and even before) the Superior Court proceedings. It has been said in numerous published opinions and in legislative committees countless times: parental rights and children's best interests are equally as important as any other controversies the courts adjudicate. This amendment will not further protect those interests, and those interests are too severe to be delegated away from the government attorneys whose duty is to administer them. The ACJA § 7-210 amendment must be rejected.

In response to feedback and comments, the Supreme Court's revised proposal is attached.