[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
JUSTICE FOR ALL: A REVIEW OF THE OPERATIONS OF THE DISTRICT OF COLUMBIA
SUPERIOR COURT
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 23, 2004
__________
Serial No. 108-185
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
NATHAN DEAL, Georgia C.A. ``DUTCH'' RUPPERSBERGER,
CANDICE S. MILLER, Michigan Maryland
TIM MURPHY, Pennsylvania ELEANOR HOLMES NORTON, District of
MICHAEL R. TURNER, Ohio Columbia
JOHN R. CARTER, Texas JIM COOPER, Tennessee
MARSHA BLACKBURN, Tennessee ------ ------
PATRICK J. TIBERI, Ohio ------
KATHERINE HARRIS, Florida BERNARD SANDERS, Vermont
(Independent)
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
C O N T E N T S
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Page
Hearing held on April 23, 2004................................... 1
Statement of:
Ashby, Cornelia M., Director, Education, Workforce and Income
Security Issues, U.S. General Accounting Office; Elliott S.
Hall, chairman, Council for Court Excellence; Rhonda
Dahlman, esquire, legal counsel for the elderly, American
Association of Retired Persons; Nicholas Ward, esquire,
former chairman, Guardian and Conservator Committee,
District of Columbia Bar Association; and Michael F.
Curtin, esquire, former deputy register of wills, member,
District of Columbia Bar................................... 70
King, Rufus G., III, chief judge, District of Columbia
Superior Court; Lee F. Satterfield, presiding judge, Family
Court, District of Columbia Superior Court; and Jose M.
Lopez, presiding judge, Probate Division, District of
Columbia Superior Court.................................... 19
Letters, statements, etc., submitted for the record by:
Ashby, Cornelia M., Director, Education, Workforce and Income
Security Issues, U.S. General Accounting Office, prepared
statement of............................................... 73
Curtin, Michael F.,esquire, former deputy register of wills,
member, District of Columbia Bar, prepared statement of.... 126
Dahlman, Rhonda,esquire, legal counsel for the elderly,
American Association of Retired Persons, prepared statement
of......................................................... 110
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia:
Prepared statement of.................................... 16
Washington Post articles................................. 3
Hall, Elliott S., chairman, Council for Court Excellence,
prepared statement of...................................... 101
King, Rufus G., III, chief judge, District of Columbia
Superior Court, prepared statement of...................... 22
Lopez, Jose M., presiding judge, Probate Division, District
of Columbia Superior Court, letter dated May 6, 2004....... 61
Ward, Nicholas,esquire, former chairman, Guardian and
Conservator Committee, District of Columbia Bar
Association, prepared statement of......................... 119
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 143
JUSTICE FOR ALL: A REVIEW OF THE OPERATIONS OF THE DISTRICT OF COLUMBIA
SUPERIOR COURT
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FRIDAY, APRIL 23, 2004
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in Room
2154, Rayburn House Office Building, Hon. Tom Davis (chairman
of the committee) presiding.
Present: Representatives Davis, Tiberi and Norton.
Staff present: David Marin, deputy staff director/director
of communications; Keith Ausbrook, chief counsel; Howie Denis,
counsel; Robert Borden, counsel/parliamentarian; Drew Crockett,
deputy director of communications; John Cuaderes and Victoria
Proctor, senior professional staff members; Teresa Austin,
chief clerk; Brien Beattie, deputy clerk; Rosalind Parker,
minority counsel; Earley Green, minority chief clerk; Jean
Gosa, minority assistant clerk; and Cecelia Morton, minority
office manager.
Chairman Tom Davis. Good morning. A quorum being present,
the Committee on Government Reform will come to order and we
have the most important Members here anyway. I would like to
welcome everybody to our oversight hearing on the District of
Columbia Superior Court. In Federalist No. 22, Alexander
Hamilton noted that the crowning defect of the Articles of
Confederation was the lack of a judiciary. Today we'll look at
the management, the administration of that critical element of
our political system in the District of Columbia. We'll focus
particularly on the probate division and the family court which
play an important role in protecting the most vulnerable among
us, the elderly, the infirm and the children.
Before we begin, I want to take a moment to acknowledge the
passing this week of Mary McGrory, the long-time Washington
Post and Washington Star columnist. I do so today because among
the many highlights in her distinguished career, Mary was a
strong advocate for children in the District of Columbia,
including her support for the creation of a D.C. family court.
Using her customary mix of charm and tenacity and her space on
the editorial page of one of the Nation's largest newspapers,
Mary became an irresistible force for better legal treatment
for the most defenseless members of our society. Her
contribution to this city and this region will be sorely
missed.
This hearing will focus on three main areas. The first is
general administration of the D.C. Superior Court, including
performance goals and measures, fiscal management and the
integrated justice information system. The second is the
probate division, particularly the possible neglect or abuse by
court-appointed guardians and conservators. And the final area
is how the establishment of the family court has improved child
welfare in the District of Columbia. Regarding the probate
division, this committee is concerned that court-appointed
guardians and conservators are taking advantage of or
neglecting their clients. We have received a report that a
conservators' failure to make mortgage payments on the ward's
house resulted in a foreclosure.
The same conservator failed to pay real estate taxes,
failed to make annual financial filings and failed to prevent
the health care provider from taking assets of the ward. This
report comes on the heels of the Washington Post series that
detailed instances of mistreatment of elderly, mentally ill and
indigent individuals by guardians and conservators appointed in
the District of Columbia, and suggested that the court system
exercised little control or discipline over those it appoints
to protect the needy. I'd ask unanimous consent that these
articles from the Post be included in the record at this point.
Without objection. So ordered. The committee needs to know how
and whether the court addresses these problems.
[The information referred to follows:]
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Chairman Tom Davis. There is a question as to whether
existing safeguards such as new training and performance
standards for probate lawyers, as well as screening procedures
for an appointment of guardians and conservators are enough and
whether other actions by the court or by Congress is needed.
I'm also interested in learning more about the administration
of the probate division because this committee has received
reports of delays in processing appointments reports and
payment requests. We need to better understand the appointment
responsibilities and accountability of the registrar of wills
and her staff, the relationship of the register of wills office
with practitioners and the adequacy of the reporting
requirements for conservators and the enforcement of those
requirements by the register of wills and the court.
As for the family court, most of you know Congress created
this court as part of a broader reform effort in the child
welfare system, and as an extension of the reform we'd already
begun with the District's Child and Family Services Agency. The
Family Court Act of 2001 was crafted to resolve specific
shortcomings in the court, including structural organization
and case management practices.
The act increased the number of family court judges and
required that judges have a background in family law and
participate in ongoing training. This was intended to ensure
that family court judges are dedicated to serving on the court
and alleviate the sense among many judges that serving on the
family court is a required stepping stone to a more desirable
position on the superior court. The new family court permits
judges to maintain manageable case loads. It is intended to
reduce the backlog of cases that existed for many years.
Furthermore, the critical one family, one judge concept allows
for the continuity of case managements and requires that a
single judge follow the case through disposition. Consolidation
of public functions of the court sends the message to the
public that the family court is an integral and critical part
of the court system, not an afterthought.
Today witnesses will discuss the court's progress in
implementing the Family Court Act as well as its compliance
with the Adoption and Safe Families Acts. GAO reports that the
family court is making progress in both areas and is seeing
tremendous improvements in its operations as a result. However,
there are still areas for improvement which we have asked the
court to address, such as better compliance with the ASFA
permanency deadlines. We will determine what, if any,
assistance we may provide to guarantee the family court
continues moving in the right direction. We have a
distinguished group of witnesses before us this morning. First
we'll hear from the chief judge of the superior court and the
presiding judge of the family court and the probate division.
Then we will hear from the Council for Court Excellence,
which can address their work in all three areas that we are
looking at today. The General Accounting Office, which has done
extensive analysis of the family court situation. A
representative from the Legal Counsel for the Elderly, which
represents indigent persons in probate proceedings and two
members of the D.C. Bar, who practice in the probate court. I
want to thank all of our witnesses for appearing before the
committee. I look forward to their testimony.
[The prepared statement of Chairman Tom Davis follows:]
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Chairman Tom Davis. Ms. Norton any opening comments?
Ms. Norton. Thank you very much, Mr. Chairman. As usual, I
associate myself with the chairman's remarks. I'd particularly
do so as to those part of his remarks that--to the part of his
remarks concerning Mary McGrory, and I note for the record that
the chairman has extolled the virtues of a confessed and
unabashed liberal. Thank you, Mr. Chairman, for initiating this
hearing. I have only brief opening remarks. This is a necessary
and appropriate oversight hearing, because Federal law has
placed jurisdiction and the cost of the DC courts with the
Congress. Today the committee is focusing on two parts of the
superior court, because each has had its own sets of problems.
This committee has worked--has closely followed the family
court division since the death of an infant, Brianna Blackman,
exposed the structural issues in the old family division. As a
result, Majority Leader Tom DeLay, who has long been involved
with issues of affecting abused and neglected children, and I,
worked for many months on the District of Columbia Family Court
Act of 2001, H.R. 2657. The first revision of the superior
court since its creation more than 30 years ago. The court
initially resisted many of the changes, although many had long
been recommended by respected panels such as the Council of
Court Excellence. Nevertheless, I think it is fair to say that
a successful major transformation in the family court has been
undertaken.
I appreciate the partnership I had with Mr. DeLay in
writing the bill and his efforts, which assured substantial
increased funding to carry out the extensive changes the new
law made in the court. The Congress paid for this
transformation with extra funding, but the court deserves the
credit for the considerable changes. Today, I will be
particularly interested in learning why this success has not
been reflected where it is most needed, in the timely placement
of foster children in permanent homes. The probate division is
a different case. The committee has not previously looked at
the probate division but learned of problems the same way we
originally learned of the problems of the family division,
through unfavorable public reports. Just as the death of
Brianna focused the Congress on the family division, reports of
neglect of infirmed adults by guardians and conservators
indicated a need for attention to the probate division.
Apparently, change is underway. I will be particularly
interested in the court's progress in meeting the problems of
the probate division. May I thank all of today's witnesses for
their work with our courts and for their testimony. Thank you,
Mr. Chairman.
Chairman Tom Davis. Thank you very much. Testifying on our
first panel we have the Honorable Rufus G King III, the chief
judge of the District of Columbia Superior Court, the Honorable
Lee F. Satterfield, presiding judge, Family Court of the
District of Columbia Superior Court; and the Honorable Jose M.
Lopez, presiding judge of the probate division.
It's the policy of the committee that all witnesses be
sworn before they testify. Would you rise with me and raise
your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Judge King, we'll start with you. And
try to keep the testimony to 5 minutes. If you need to go over,
it's pretty informal today, but your entire testimony is
already in the record, and we've read it and have questions
based on that, so you can highlight what you need to do. And
you have a light that will turn orange after 4 minutes and red
after 5. And do your best to adhere to it, but we're here to
listen to you and get input and just have a conversation.
Judge, thanks for your service and thanks for being with us
this morning.
STATEMENTS OF RUFUS G. KING III, CHIEF JUDGE, DISTRICT OF
COLUMBIA SUPERIOR COURT; LEE F. SATTERFIELD, PRESIDING JUDGE,
FAMILY COURT, DISTRICT OF COLUMBIA SUPERIOR COURT; AND JOSE M.
LOPEZ, PRESIDING JUDGE, PROBATE DIVISION, DISTRICT OF COLUMBIA
SUPERIOR COURT
Judge King. Thank you, Mr. Chairman. Congresswoman Norton,
thank you for the opportunity to appear today. If I may beg
your indulgence for just a moment, I would like to add my
appreciation for Mary McGrory. One of the facts that isn't
talked about as much as some of her many accomplishments is
that for over 50 years, every week, week in and week out,
without break for holidays or any other reason, she would go
out to the St. Anne's infants home and read to and play with
the children who were at that home as a result of various
family dysfunctions. And in working with her, I know from
having been her target a number of times, how incisive her mind
was.
At the same time, I think that her service at St. Anne's
infants home speak volumes of the huge size of that person. I
am going to take just a few moments because I know the
committee wishes to hear from the family court and the probate
court to touch on a few of the things that the superior court
has ongoing now and has recently completed. I must begin by
thanking both of you, as well as the majority leader for the
support you have given the superior court and our family court.
The Family Court Act of 2001 and the resources that you help to
provide to implement that act upgrade our IT systems and
enhance our facilities has been most beneficial, not just for
the court, but more importantly, for the District of Columbia
public.
On behalf of Chief Judge Annice Wagner of the court of
appeals and myself, I want to express our deep appreciation for
the strong support you have shown us. To touch on a few of the
current and recent activities, the D.C. Family Court Act has
now fully implemented one judge, one family, transfer of cases
into the family court, more timely permanency for abused and
neglected children about which more from Judge Satterfield. The
Mayor's Services Liaison Office is up and running in the
Moultrie Courthouse, making services available easily for those
who need them. A family court self-help center was developed
and implemented in partnership with the family bar to assist
unrepresented litigants.
A family treatment court has been established for mothers
with substance abuse problems so that they may receive drug
treatment, counseling and parenting classes without having
their families torn asunder in the process. Interdisciplinary
training has been held annually for judges, social workers and
others, tightening our connection with and coordination with
others in the child welfare system. Elsewhere in the superior
court, the Landlord Tenant Resource Center has been developed
and opened, again in partnership with the bar to provide
assistance to those most in need of it in that very busy court.
The Greater Southeast Domestic Violence Intake Unit has
been established and assists over 100 domestic violence victims
each month in the east of the river community, enabling them to
obtain temporary protection orders at a location near their
homes. Community courts have been set up as pilot projects,
first in the minor misdemeanor and traffic court, and then in
our general misdemeanor court, covering all of the east of the
river community in wards 6 and 7. And that--and as well, we
have established a separate prostitution calendar.
Those courts are showing promising results in providing a
fresh and more successful approach to some of the social
problems that contribute to the crime that so many of us
experience. Town hall meetings have been held both in
connection with the community courts and with the family court
to make sure that we are aware of the concerns of the
communities we serve and what we're trying to accomplish for
them. We have four more such meetings planned over the next 6
weeks. The court's new integrated justice information system
has been implemented in the family court and will be brought
on-line in the probate and civil divisions some time in the
early summer. I just replaced 20 different data bases the court
has been using for over 2 decades and brings us closer to a
reality of being able to easily coordinate cases from all
different parts of the superior court, which is a unified court
system.
The probate division, working with the bar, established a
mandatory training requirement for attorneys who wish to
receive court an appointments and is in the final stages of
writing practice standards for all attorneys appearing before
the division. An administrative order tightened requirements
for timely filing of reports and accountings and it is in the
final stages of revision, consistent again with comment from
the bar. And we are seeking to continue our collaboration with
the bar in addressing various concerns in that division, as you
will hear more about shortly. Building B has been renovated and
the small claims and landlord tenant courts have been relocated
there to actually where they originated in 1938 in public
friendly space within steps of the judiciary square metro stop.
The Crime Victims Compensation Program has received a major
physical renovation and up lift at its quarters in building A.
Currently, a major construction project is underway in the
Moultrie Courthouse to consolidate family court public
operations on the J M level. This new family friendly space
will have a central intake office for all types of cases and
filings, child waiting areas and new courtrooms and hearing
rooms and it will open in July. I am particularly proud to be
able to report that all of these construction projects have
been completed on schedule and in budget.
Finally, the District of Columbia courts have developed a
strategic plan and are well along the way toward implementing
it. Led by the Strategic Planning Leadership Council made up of
judges and senior administrators, each division and branch of
the superior court is developing management action plans to
bring the broad court wide goals into specific projects and
operations. The ultimate goal is to better realize the court's
mission, to protect rights and liberties, uphold and interpret
the law and resolve disputes peacefully, fairly and effectively
in the Nation's Capital.
I will stop here as I understand the committee wishes to
hear from the presiding judge of the family court, Judge Lee M.
Satterfield, and from the presiding judge of the probate
division, Judge Jose M. Lopez. Thank you for allowing me to
speak on behalf of the superior court. I will be happy to
assist in any questions.
Chairman Tom Davis. Thank you.
[The prepared statement of Judge King follows:]
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Chairman Tom Davis. Judge Satterfield, welcome. Thanks for
being here.
Judge Satterfield. Thank you. Good morning. And thank you,
Mr. Chairman and Congresswoman Norton. Every day a District
child is placed in a safe permanent and stable home is a great
day for our city. As a result of the additional resources that
Congress has provided, as well as the ongoing collaboration
with agencies such as CFSA and other District agencies that
serve children and families, I believe we are able to say that
we have more and more great days in the District of Columbia.
When it comes to our family court, and when it comes to abused
and neglected children, we focus on four things, safety,
permanency, due process and timeliness.
When we have implemented programs and initiatives, we have
implemented them with these areas in mind. For example, in
terms of safety, we conduct prompt and more detailed meaningful
emergency hearings when children are removed from their
families, not simply to talk about placement issues, but also
about the services that the children need and the services for
the family. In cases where mothers are substance abusers, they
now have the option of remaining with their children but in a
safe environment through our Family Treatment Court Program, an
environment through which they can learn to parent their
children as well as learn how to maintain their sobriety.
In terms of permanency, we have increased our compliance
with conducting timely permanency hearings. In cases of
neglected children filed in 2001 and 2002, we show a compliance
rate of 75 to 80 percent of the cases had permanency hearings
on time, the majority of those cases had permanency goals set
for the children. And so far in our cases that were filed in
2003, they are meeting their permanency hearing goal this year,
86 percent of those cases have had their permanency hearing.
However, we recognize that we have more work to do in the
area. We want to make sure that these hearings are of the most
quality and that all the necessary findings are being made in
order to assure that there is a quality outcome for the child.
And we have not met our goal of 100 percent compliance with
conducting these permanency hearings timely. That's a goal that
may be aspirational for some, but we think it will be realistic
for us. Nevertheless, more children were adopted in the
District of Columbia in 2003 than in 2002. And more children
achieved permanency in 2003, than in 2002. And when it comes to
reunification, when it is an appropriate goal in the case, they
have achieved reunification much quicker than in the past.
In terms of due process, we try to insure that there is
adequate representation for parents, children and youth and we
did that by creating panels of qualified attorneys to represent
parents and youth and to serve as guardian ad litem. We began
our guardian ad litem program with a contract with the
Childrens Law Center, a nonprofit organization to provide
guardian ad litem services to some of our children, as well as
additional training for some of the other attorneys. Standards
of practice are in place----
Ms. Norton. Could I interrupt you, Judge Satterfield? Do we
have testimony from you here.
Judge Satterfield. It is incorporated with the Chief
Judge's testimony in one statement.
Chairman Tom Davis. One major packet and then they are each
speaking individually to it.
Ms. Norton. Thank you. You can proceed.
Judge Satterfield. Sure. All right. Thank you. We have
standards of practice in place for attorneys practicing in the
area of abuse and neglect, and the Chief Judge is about to
adopt standards of practice for attorneys representing youth in
our juvenile court. In addition to parents being notified to
attend hearings through the efforts of CFSA, foster parents are
now more consistently being notified of hearings and we appoint
volunteer advocates in our cases to protect the children.
And finally, in terms of timeliness, there's been a steady
decline in the time it takes to resolve the legal issues of
whether neglect has occurred. And this has resulted from the
increasing judicial resources as well as our child protection
mediation program which has resolved this issue in a less
adversary manner. We believe that the glue that has helped put
all this together has been the implementation of the one judge,
one family case management approach. As required under the
Family Court Act, this enables the judge to schedule things
more timely and to make better decisions because the judge
knows more about the family. And also the improved
communications with CFSA.
I continue our biweekly meetings with the director of CFSA,
and will continue to do so with the interim director who starts
next week. We continue our collaboration with CFSA on many
promising projects such as the family treatment court, the
bench mark permanency hearings for our older children and in
terms of assignment of cases geographically and scheduling of
hearings. We have started a new operational meeting designed to
be not just informational between the agency and the court, but
problem solving. And we continue ongoing discussions about
enhancing our exchange of information electronically.
In conclusion, I'd like to say that it is obvious to us
that we have more to do when it comes to children and families
in the District of Columbia and we know that. But we are
confident that things will continue to get better. We have
disciplined motivated judges and managers and staff in family
court that are passionate about the work that they do. We will
continue our collaboration with stakeholders, but we truly
would like to see each day as a great day for a District's
child. Thank you very much.
Chairman Tom Davis. Thank you very much.
Judge Lopez, thanks for being with us.
Judge Lopez. Good morning, Chairman Davis, Congresswoman
Norton.
Chairman Tom Davis. There is a button there you push that
we can hear you better.
Judge Lopez. As you can tell, I am new at this. Good
morning, Chairman Davis, Congresswoman Norton. Thank you for
the opportunity to testify before you. I will just take this
opportunity to highlight some of the accomplishments of the
past year or so though I must say in all modesty, I have only
been presiding judge of the probate division for the past 4
months. The probate division was one of the few divisions that
piloted the strategic planning process by developing its
management action plan [MAP], a very apt acronym since a plan
really is a map of what the terrain looks like right now and
where we want to head over the next few years.
The probate division MAP process was so successful that the
register of wills was asked to give a presentation to all other
court managers on how her team went about creating their map.
Other divisions are using our process as a best practices model
for their MAP development. As an update, the division recently
celebrated completion of several milestones in the MAP design
to enhance services to the public.
On February 19 and 25, 2004, the staff participated in a
customer service training program facilitated by an outside
trainer. The program included an open discussion sharing
recently received comments from bar members regarding areas in
which services provided by the division could be improved. I
participated in that program. The division also administered a
survey during the period of February 23 through 27 as a key
step in the map objective to solicit inputs from probate
division consumers regarding probate clerical operations and
performance. Completed surveys were received from over 75
percent of the persons assisted in the probate division on the
day the surveys were administered.
The results were that more than 90 percent of the
respondents agreed or strongly agree that the services they
receive in the probate division were courteous and responsive;
95 percent receive assistance within 10 minutes of waiting, and
96 percent reported their visit was a positive experience. In
any event, the MAP includes targets for improvement and we will
work toward these. The division has held customer service
training and will continue in those efforts.
I would like to go back a bit further for a few actions
outlining Chief Judge King's written testimony and that
demonstrate our responses to the concerns. Effective January 1,
2003 the panel of attorneys that the judges use to select
attorneys for appointment as fiduciaries and counsel was
reconstituted. It now includes only attorneys who have supplied
certification of training mandated by the court. We now have a
requirement of at least 6 credit hours of training per year in
order for attorneys to remain on the panel. Our Judicial
Education Committee has been feverishly working to develop
probate practice standards and Chief Judge King has completed
the administrative order to make the standards official.
My training plans for this year include an orientation for
attorneys and staff to improve their working relationship, an
orientation on the new practice standards and evaluative
programs focusing on the duties and responsibility of
guardians.
Finally, we have begun planning with the probate review
committee to establish a task force designed to address the
issues that they have raised. I thank you for the opportunity
to testify before you today and I present information about
recent development in the probate division as well as some of
the challenges we face. I will be pleased to answer your
questions.
Chairman Tom Davis. Thank you very much. Let me start out
with a question kind of for everybody, and general question.
What performance goals do you set to gauge the effectiveness of
the court? And how do you measure the outcome?
Judge King. That's an important part of our strategic
planning. Obviously timeliness is one important measure. But
there are other subtler measures in different divisions of the
court, depending on how--depending on the subject matter that's
under consideration. In family court, obviously there is always
an issue of safety and responsiveness to the child's needs. We
are developing measures for those various performance
standards, and I hope over time we'll have a much more exact
standard. The new computer installation, IJIS system, is also
being developed with the goal in mind of being able to give us
more easily complete reports that will allow us to measure what
we've done and to establish base lines against which we can
measure our project progress.
Chairman Tom Davis. Everyone confer?
Judge Satterfield. I don't have much to add, other than,
one of the things that we are collecting data on and plan to
extract from the new system in areas for instance for safety,
you know, whether or not there has been any reoccurrence in
terms of neglect issue, whether it is the family that the child
came from or with the foster family.
Chairman Tom Davis. I mean obviously you get another
Brianna Blackman you can have the most timely thing, but
that's----
Judge Satterfield. Right. Exactly. So we have to measure
that. We have to measure the number of placements that children
are in, and we're going to be looking at any disruption in the
adoptions that have been granted to make sure that we measure
that as well. In terms of our older kids, we want to see the
number, percentage of our kids that actually, what we call age
out of the system come down and we'll measure how we're doing
by looking at that percentage over the years.
Judge Lopez. Obviously a key factor here is the management
action plan and the set of goals that we have developed for
each of those goals essentially we have four key actions steps
to planning the issues that you raise. The first step will be
to determine the existing rate of compliance, at least by
December 31, 2003, and we have established that already. And
then we are going to review and revise the standards to enhance
efficiency through January 2004 and through January 2005. We
will publish standards within the probate division as deemed
appropriate by register of wills office, at least by February
2005, and then we will monitor and evaluate performance by
September 2005 and annually thereafter. The goal is at least to
meet 90 percent of the established case processing standards by
fiscal year 2005.
Chairman Tom Davis. OK. On the probate side, obviously your
filing deadlines are critical to tell you if things are going
well, aren't they?
Judge Lopez. Very critical.
Chairman Tom Davis. And do you have like a tickler system
in there on these, that dates have to be met by counselors in
there that--so you can police the counselors or not?
Judge Lopez. One of the difficulties we were having in the
past is an antiquated tickling system which will now be
enhanced by the new integrated justice information system that
we expect to go live this summer. And that will be the greatest
improvement that we will have that we will keep track of 100
percent of our cases.
Chairman Tom Davis. I know you're spending--all of you are
spending time and money upgrading the court's information
technology infrastructure, because ultimately that will give
you the best most current information and allow you to police
this and you're less subject to human error and the like. Where
does your Web site fall into these plans?
Judge King. We have, up until now, we have been borrowing a
Web site hosted by the D.C. Bar, very kindly afforded us that
opportunity. Obviously that's been an interim measure because
the--they have concerns about some limits on what we can put
on. I think the term is shovel wear. But for us it's important
large documents such as some of our rules and some of the
budgets data and things of that nature. We plan to open our own
Web site in September of this year. We've now--we have the
funding and we have the project underway and we will be opening
our own Web site, which will play an integral part in informing
the public of what we're doing and keeping our operations
transparent.
Chairman Tom Davis. OK. How many judges do you have serving
the court in total? And the caseload? Can you divide that up? I
know it's gotten a little better, hasn't it.
Judge King. The superior court, even with recent downturns
in caseloads, remains one of the busiest trial courts in the
Nation with highest caseloads per judge. We have--at the moment
we are passing through 60 active judges on our way back to the
statutory cap of 59 judges. That will occur--our next seating
of a judge will occur two retirements from now, if that makes
sense.
Chairman Tom Davis. Is that a statutory cap that----
Judge King. It is a statutory cap which----
Chairman Tom Davis. Set by us or by the city?
Judge King. By the Congress. We are hopeful that cap might
be lifted, not because we want an unlimited number of judges,
but because as we stay at the 59-judge level, if vacancies then
occur and it takes us 6 months to a year to fill them, we
become--it can impose real hardship. So it's really a matter of
timing. If we had the cap lifted, we would be able to target
the level of 59 in our budget discussions with Congress, but
would have the flexibility of making sure that people were
ready to take their seats as soon as the retirements or moves
occur.
Chairman Tom Davis. Why does it take 6 months to a year to
get those things?
Judge King. It is a nomination process at the nominating
commission and then it comes to the White House. They take some
time to review.
Chairman Tom Davis. Is that statutory. Or is that----
Judge King. It's all statutory.
Chairman Tom Davis. So it's our fault.
Judge King. Of course. It's all Congress's fault. It's not,
and this is not in any way--I mean it just--the process takes
time.
Chairman Tom Davis. Let me ask you this. Then, given that
statutory limit, how do you make the determination of how many
judges and the staff levels for each division?
Judge King. Within the division, fortunately I didn't have
to start from scratch. There historically has been a sort of a
level of caseloads that have dictated sort of rough parameters.
The total caseload is 135,000. There are 76,000 civil cases,
32,000 criminal, 8,500 domestic violence, 11 or almost 2,000
family court cases, 2,500 probate cases and 180 tax cases.
We have divided and, in fact, one of the things that I'm
faced with as we speak is because of that 59 cap, and because
we have committed 15 judges to the family court, I'm going to
have to close some calendars in the civil and criminal
divisions, which will involve a slight delay, additional delay
in processing those cases. Those--but it's based on the
caseloads and the types and complexity of the cases is what we
try to do, and we are studying integrated case management
profiles to make sure that we're getting it right.
Chairman Tom Davis. What percent of the criminal cases are
pled out at the early stages? Most, 80, 90 percent.
Judge King. I can get you the exact percent, but it's
something like 90.
Chairman Tom Davis. Otherwise, then you'd never have enough
time.
Judge King. We would come to a grinding halt as is true of
criminal courts all over the United States.
Chairman Tom Davis. Correct. That's interesting. If I were
to ask--I'm just asking your opinion. How many judges would you
need to get at least on a temporary basis, I mean, to be able
to get things back to normal in terms of the docketing and the
time sequence and so on.
Judge King. If we had the--if we had the cap of 62, that
would give us the flexibility to maintain our calendars where
we'd like to see them. We could work within that--we could work
within that parameter.
Chairman Tom Davis. Could you discuss some of the community
based operations you've established? You have a satellite
domestic violence unit. You have community based courts, how
they're funded and Federal grant programs that may be available
if you're working with those. And can the information
technology improvements enhance those provisions to service
this community.
Judge King. Most of these satellite and innovative courts
are initially grant funded, although as we find that they are
successful in the way that the satellite domestic violence
intake center has been successful, we very much hope that they
will become regularly funded as part of our operating budget.
Our efforts are in a number of areas. The domestic violence one
has been an unqualified success.
In fact, we had Mrs. Tony Blair while she was here, visit
it as pursuant to her interest in the area of domestic
violence. She took away, I think a very good impression of the
way it operated. We are working in a number of fronts in the
community courts. And the objective there is to promptly and
effectively connect the offenders with services that relate to
the social and other issues that contribute to criminal
behavior, and the objective is to slow down the revolving door
and try to keep people from coming back to court.
Those efforts, again, usually are grant funded to start,
but then have come in, although the criminal community court is
a rearrangement of our existing resources. So the extra
resources needed are primarily those at the back end where the
services need to be rendered. Additionally drug treatment
services, mental health services and the like, many of which
come through the city rather than through our direct funding.
Chairman Tom Davis. Judge Satterfield said that 86 percent
of permanency decisions are made in compliance with the
deadlines, right.
Judge Satterfield. That's of cases that were filed in 2003.
The cases that were filed in 2001 and 2002 are at 75 to 80
percent in terms of the timeliness of having the hearing.
Chairman Tom Davis. OK. What's the problem with the 14
percent?
Judge Satterfield. Well, the problem with the 14 percent is
that we are not getting there. We need to make sure that the
judges who get there will be put in place is through some of
the resources that you have given us, we now have an attorney
advisor office that has two attorneys that initially focus on
some of the older cases to make sure that we have those cases
in compliance.
They're going to be going forward in looking at the newer
cases that are coming up for permanency hearing. Most of our
judges may conduct them ahead of time, but they have to make
sure that they make timely findings in them and the appropriate
findings and they're going to be tracking that and sending them
notices when they do not, sending them suggestions when they do
not.
With the new integrated system they're going to be able to
just go into the computer and look at the court orders on the
screen as opposed to pulling the jackets and those kinds of
things.
Chairman Tom Davis. Well, the Legal Times--and I know it's
complicated. You know, I wanted to be a judge. I didn't have
the political clout to be a judge so I ended up coming here.
The Legal Times reported recently that the number of abuse and
neglect filings over the past 2 years has dropped by 43
percent. Can I--what's your perspective on this current
phenomenon? Do you think the cases are filed with the court
later than they should to be ensured the well-being of the
child involved, or----
Judge Satterfield. Well, I think there are some instances
where we have felt that cases in the magistrate judges and
judges had reported to me and that they felt that a case should
have come in the system earlier. I do not know the full
explanation for it. I know that investigations are the same.
The numbers are the same. The same numbers of call-ins that are
being made to see if they're safe. I know that more cases are
being treated. Our concern is simply though that right
decisions are being made and let's not forgo bringing it to
court just so that we won't have a court case. If it's
necessary for the safety to protect the children, the child and
family, we need to bring it to court.
Chairman Tom Davis. What criteria are we using to recruit
family court judges?
Judge Satterfield. The criteria are the criteria that's
been set out in the statute. They have to volunteer and they
have to have the kind of experience that is appropriate for
handling family court cases and agreed to the term
requirements----
Chairman Tom Davis. Are you getting many volunteers?
Judge Satterfield. Well, we haven't had to seek them out
since we started family court in 2000, because we've not had
anyone leave except for Judge Shuker, who left due to
retirement. And then we had Judge Sattler come in after Judge
Shuker. But the judges have been staying beyond their term. We
expect that we are going to be seeking volunteers at the end of
this year because some of the judges will probably leave family
court who have stayed beyond their terms. But we have not
actually encountered that yet.
Chairman Tom Davis. The D.C. courts have embarked on a very
ambitious renovation and construction project, to meet your
space needs. Can you give us an update on the status of the
project? I'm also really particularly interested in the
consolidation of the efforts of the family court and how the
renovation project affects that.
Judge King. We have developed a 10-year space needs plan,
master plan for providing for our space needs, which does a
couple of things. First, it addresses all of the family court
construction needs and we understood during the discussions
that led up to the Family Court Act that we had to begin
operations, even if we had to operate in the hall. And we've
done that. There remain two steps to complete the family court
development. First is the step that's underway to bring the
public functions into contiguous space on the J M levels and
the first floor, Indiana level at the courthouse. That will
leave some of the support functions, the clerical functions and
office support functions placed in other parts of the court
building and court complex.
Over a slightly longer term, we will be adding an envelope
to the south face of the Moultrie Building, which will provide
the space that will allow us to bring all of the family court
functions into a contiguous space. At the same time, the build
out of the family court has had impact on some of the other
operations. We have, moved landlord tenant and small claims to
a separate building. Eventually we will be moving the probate
court to its own set of courtrooms and offices. And we will be
relocating things so that each of the other branches has the
same state-of-the-art contiguous space and public access that
we are now developing in the family court. Combined with that
is the restoration of the old courthouse, which was the Supreme
Court of the District of Columbia back in the early 1800's.
It will become the court of appeals. That is the next
stage. That's the next phase. But--and I believe we have
submitted this and I will be happy to submit copies if there's
any question about whether you have them, a rather elaborate
schedule of construction and design phases that all work
together, assuming the good Lord willing, the creek don't rise
and the Congress provides the funds.
Chairman Tom Davis. Well, the first two look good.
Judge King. The first two I can probably deal with. The
third I have no control over.
Chairman Tom Davis. Judge Lopez, I know you have only been
there a short time. But the reports in the Washington Post and
other information provided to the committee reveal the
importance of the court in exercising its power to sanction
lawyers and fiduciaries to protect the rights and property of
those in the care of guardians and conservators.
What disciplinary action can you take against guardians or
conservators for these violations? How often do you take these
actions? Were any sanctions imposed in those cases referenced
in the Post stories? Was anyone referred to the bar for
discipline? I'll just go general and you can--are you satisfied
with these sanctions that they are sufficient to deter a
disregard for the filing requirements and would you suggest any
additional sanctions.
Judge Lopez. The sanctions that we have for the attorneys
is, No. 1, remove them from the list of attorneys that will be
appointed any further cases in the future, in addition, refer
the attorneys to bar counsel who then takes on the
responsibility for deciding what kind of sanction or discipline
to impose. In addition, in some cases and this was one of these
that was reported in the Washington Post, I have had the
necessity to refer the matter to the U.S. Attorneys Office for
Prosecution.
Chairman Tom Davis. Do you need any other tools. Do you
think that those are enough tools to wake up the bar? In terms
of sanctions and so on.
Judge Lopez. I believe so. I believe that one of the real
difficulties we had was in catching up with the culprits at an
early stage, and I think that with our IJIS system, we will be
able to catch up with the attorneys and their filing in such a
timely fashion that we should not have many more of those
problems in the future.
Chairman Tom Davis. How about, I mean, you do have contempt
authority, right.
Judge Lopez. We have contempt authority and when they are
in violation of a court order, the contempt authority can also
be used as a sanction.
Chairman Tom Davis. Has it been used in any of these cases,
to your knowledge?
Judge Lopez. Yeah. None of these cases has been used
because in none of the cases the violations have been from a
perspective of contempt of court, but rather a violation of
their fiduciary duties and as such, they have been referred to
the bar counsel.
Chairman Tom Davis. Is this widespread or is this just a
few attorneys?
Judge Lopez. Oh, it is very few. Very few and right now, I
would venture to say probably none.
Chairman Tom Davis. So a handful of them give the whole
court a bad name basically.
Judge Lopez. Essentially.
Judge King. Mr. Chairman, if I might just add one thing. In
response to some of the problems that were highlighted in the
press, I issued an administrative order that basically stopped
compensation to any of the lawyers who were serving as
fiduciaries in--until all of their reporting requirements had
been met on a current basis. We are in the stages of revising
that so that we're not caught up in punishing trivial
infractions or trivial delays. But the objective basically, I
think, has been accomplished and will be maintained that if you
want to practice law in the probate division, you're going to
have to do it on time.
Chairman Tom Davis. Judge Lopez, I just have one other
question. According to your testimony, about 40 percent of the
conservatorship accounts have substantial deficiencies. That
sounds pretty high. You know, from my perspective. I didn't do
much probate before I came here, but what sort of guidance did
the court offer to conservators to prepare conservatorship
plans, inventories of accounts? Do you provide anything like
the guides that are provided, like the Fairfax County Clerk's
Office has a huge handbook for guardians and conservators, the
administration of estates, that they hand out that make it
pretty clear, forms, everything else. Do you have anything like
that?
Judge Lopez. Yes, we do. All of the attorneys--all of the
attorneys who before they can participate as a fiduciary and
appointed, they must take the 6-hour program when we have
documented materials booklets that we provide for them on the
process and how they must proceed.
Chairman Tom Davis. So they go through that and they get
all the documents and stuff?
Judge Lopez. Yes.
Chairman Tom Davis. Do you have enough--is there a shortage
of qualified guardians and conservators?
Judge Lopez. I don't believe we have a shortage of
qualified guardians. And I believe that the most significant
thing and what we have been doing is training them so they can
understand and appreciate what their duties and
responsibilities are and we continue to work on training them
in that area.
Chairman Tom Davis. How about for the public? Some of the--
the stuff I just held up from the Fairfax court is available to
the public. This is what the public gets as well. It is a nice
policing action, if you will. It keeps them----
Judge Lopez. We have had certain brochures that we were
assisted in drafting these brochures by counsel for court
excellence, and I helped to develop some of those brochures.
And in our map, one of these goals to develop a variety of
informational materials such as brochures and checklists for
litigants and for court users to be sure that we can get enough
to all of them as they come and get appointed to the cases.
Chairman Tom Davis. I mean, there's never a shortage of
lawyers. I mean, we know that. But I mean my question is, you
don't think there is a shortage of qualified guardians and
conservators and there's people who are really qualified, so we
really don't need fee payment increases or anything to get more
good people into it.
Judge Lopez. I don't see a shortage in that respect, no,
sir.
Chairman Tom Davis. That's fine. Ms. Norton.
Judge King. If I might just add, there is one thing. There
was, I think in some of the testimony today reference to
whether a--there might be a social worker or other professional
on staff in order to assist guardians, and particularly
nonlawyer guardians. That frankly is not an idea that we have
pursued, but it is one that would certainly be willing to
consider and we are working closely with the bar. We are, in
fact, setting up a task force to look at some of the questions
and issues that they have and that will be an opportunity for
us to determine if something of that nature might be a helpful
remedy.
Chairman Tom Davis. Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman.
Let me begin with you, Judge King.
First of all, let me congratulate you and Judge Satterfield
for the very considerable efforts. I have seen these efforts
from beginning to end. I have seen the court change very
substantially and in the process of rebuilding the Family
Division from the ground up because the changes are just that
extensive. They involve every aspect not only in the
distribution of cases but interface with another agency
entirely, the CFSA, and not to mention the very complicated
work of computerization so that parts of the court talk with
one another.
Let me assure you that chairman who has a long history of
respecting the home rule and I don't sit to see if we can find
problems with the courts. The reason we are having this hearing
is because problems have come out. This, of course, as I
indicated in my opening statement, was how we learned about
Brianna Blackman and let me tell you why I find that troubling
as a predicate to my own statement.
I encourage the Congress to let DCPDC take care of itself.
The Council, of course, does much more rigorous oversight for
what it does. This committee has to do the oversight for the
courts.
Now we wouldn't have known a thing about needed changes in
the Probate Division if the Washington Post hadn't done our job
for us. That is very troubling when it comes to court. But what
it does is to turn back to us and say, well, maybe we ought to
be rummaging through this court a lot more.
My question to you is, having seen problems with the Family
Division first and now with the Probate Division embarrass the
courts, frankly, because they became--I mean, Brianna
Blackman--I think the woman won a Pulitzer Prize and now we had
long, absolutely astounding revelations, absolutely astounding
revelations about court oversight of people who were entirely
dependent upon lawyers who I can only call crooked, doing
everything from stealing money to paying absolutely no
attention as members of the bar to what they were supposed to
do.
My question to you is whether or not the court is prepared
to look at each and every division of the court just as you
have now looked at the Family Division and done a magnificent
job. Now you are looking at the Probate Division, and I see
very substantial changes there. But I tell you, we wake up and
see reports about the Criminal Division or the Civil Division.
Then, you know, what we do is reduce the confidence of the
Congress and the entire court, even if the court does what you
have so ably done with the Family Division and now are
undertaking the Probate Division.
I want to know whether there's any way for the superior
court to self-initiate a look at all of its divisions and send
to us in advance a written report about what that self-
initiation shows. I am quite beyond probate and family court,
because I see that action is under way there. I am now asking
the court to be proactive and asking you whether or not such a
review of each and every division of the court can be
undertaken before the Washington Post--who is always rummaging
for stuff like this, because that is their job, too--having
seen what has happened in two divisions then goes looking to
other divisions to see if they can find similar problems.
Judge King. I appreciate the question; and, as a senior
administrator, I would obviously want to--I would hope to be
engaged in addressing a problem before the Washington Post gets
to it. I am very hopeful that the strategic planning process
that we are engaged in now will do just that.
Ms. Norton. I notice that in your testimony. Does it do a
top-to-bottom review, including whether the whole thing ought
to be reorganized?
Judge King. It is top to bottom and back again.
I would point out we did do a thorough review and revision
in the Civil Division 10 years ago that was on the magnitude of
the family court reauthorization. The Criminal Division is now
under study.
Ms. Norton. Is that how we got the review of the Civil
Division? Was one of the outcomes of that the alternative
dispute resolution?
Judge King. Correct. That was one of the initiatives.
Another principal one was that we went from a master
calendar system to individual calendars, and the result was
that we took a year out of the delay from filing to trial in
civil cases on the average, and we reduced the backlog from
30,000 cases down to a more or less current level of 8,000 to
10,000.
Ms. Norton. This is quite extraordinary, but it was done on
your own initiative. I know, of course, about the ADR as being
one of the best of the country and a real model for the
country.
Judge King. That's correct. I certainly hope we can bring
that same level of attention to whatever we find in the
Criminal Division as well. We are looking at case management
approaches. We are working closely with other city agencies and
other justice agencies to see where we can improve operations
there.
Ms. Norton. Civil Division has highly paid members of the
bar watching the court. The Criminal Division, the Probate
Division may not be in the same position as other divisions of
the court. In any case, I appreciate what you have said because
I think proactive work on the court is perhaps the most
effective.
I am sorry, Judge Lopez, is there something you wanted to
add?
Judge Lopez. No, ma'am.
Ms. Norton. Judge Satterfield, perhaps you can explain what
looks like a discrepancy in the report of the GAO on an issue
that I indicated was of some interest to me; and that is, you
know, flowing from Brianna Blackman, we are particularly
concerned with foster children, the most unfortunate children
in any society, children without any parents.
Now according--I am just trying to reconcile what the GAO
report said. Timely permanency hearings were held for 25
percent of the cases in 2001. On page 9, it says, in 2001, 80
percent of the cases had a permanency hearing or were
dismissed. That is a huge discrepancy, and I wonder if you
could explain it. This one is from--the rest of your sentence
is 75 percent of the cases had a permanency hearing or were
dismissed within the 425-day deadline. Now, you know, maybe
this is just a statistical--but I would like to know how you
would explain that difference.
Judge Satterfield. Part of the data that GAO analyzes is
partial data, cases that were filed in 2002. They did their
report last year, mostly in the fall of last year, when they
completed the data collection. In this instance, this is a
fluid situation where every day a case is coming up that
requires a permanency hearing or the data was not complete due
to no fault of anybody, just by the fact that the report had to
be completed and due to Congress in January of this year.
We have reported in our family court annual reports our
complete data for each year, 2001 and 2002. I know that the
source of some of the information that GAO used was from the
Council for Court Excellence, and they are coming out with
their report soon, which I think is going to have another
complete picture of how we are doing in terms of handling the
timeliness of the hearing as well as in terms of having quality
permanency hearings.
Ms. Norton. In the GAO report, 55 percent had permanency
hearings. And 55 percent in September--I don't know what that
means. Month of September or by September 2002, where you say
75 percent. And in 2002, 75 percent. I mean, I don't know. We
got to get on the same page with these statistics so that they
are using the same calendar year or same fiscal year or
whatever.
Judge Satterfield. They had to stop collecting data in the
middle of the year. So not all of the 2002 cases that were due
permanency hearing, they had not occurred because it wasn't
required yet. Once we look at the complete data--and I think
the Council for Court Excellence report is going to add some
clarity to this as well as the chief judge.
In response to the GAO report on that point, we wrote a
letter that's attached to the GAO report and gave our view
trying to clarify that information that was listed on that
page. I see where the concern is and how it is listed on that
page in terms of the chart, but we believe that was partial
data in that the--what we were reporting in our annual report
and what you will see in the CCE report truly reflect how we're
doing in terms of having timely hearings, and it will be up for
those years in the 75 to 80 percent range of having timely
hearings.
Ms. Norton. So timeliness is not a problem?
Judge Satterfield. We are not 100 percent.
Ms. Norton. Nobody is 100 percent. If, in fact, your own
figures are the current ones, you are very close to where--it
was a B if you were undergraduate.
The GAO talks about permanency hearings within 12 months,
and in your testimony you said it had their hearing within the
14 months' statutory deadline. Explain that difference.
Judge Satterfield. The law requires that we have a
permanency hearing within 12 months of a child being placed in
foster care. Under the District law, if the child is placed
foster care, you add 60 days to that because the law requires
that you add 60 days.
Ms. Norton. Say that again, please.
Judge Satterfield. Child is deemed to have been placed in
foster care 60 days after the child had been removed from the
home and then you start counting the 12 months.
Ms. Norton. Who said so?
Judge Satterfield. The law. The statute.
Ms. Norton. Let me ask you about what was of particular
concern to the Congress and that was the relationship between
CFSA, child family support, and the court. In the testimony at
page 17, I can't get a sense of where you are. You say you have
established electronic interface. You say that you found
additional opportunities for exchange of information. And I
don't know whether this is a work in progress or whether
substantial interface occurs and I can press a button if I am a
caseworker or I can press a button if I am a judge or have my
clerk do so and find out all the information. How close are you
to completing computer interface with CFSA?
Judge Satterfield. I wish we could press a button, too, but
we are not there. We have to work with the requirements of the
District Safe Passage Act because they are coming up with the
system that will sort of warehouse for all the information to
come into.
But what we have done to enhance our ability with CFSA to
exchange information electronically, we have already been
giving them schedules of the hearings electronically and giving
them information such as that. They scan their orders into
their system--our orders into their system. What we are working
on is working on e-filings so their orders can be sent to them.
They can send us their court reports electronically.
We are working with Office of Corporation Council, but
there are impediments there because that office doesn't have
the computer--the type of technology and enough power in their
computer or their servers in order to work on some of the
things we need to do with them. It is taking some time, but we
are moving in the right direction and moving forward on it.
Ms. Norton. I am entirely sympathetic with the computer
problem, particularly if you are dependent on the District,
because they had to throw out one old system and start all over
again.
I do want you to be in touch with my office. I regard--
among the things they are using computers for, nothing could be
more important than your work; and the Congress places very
substantial priority on that. So I wish you would be in touch
with us if you think we could be helpful to you.
Judge Satterfield. They have always been at the table
trying to increase our exchange of information and not to
delay. They are also part of a larger system that is being
built in the District.
Ms. Norton. The problem is with not with CFSA. It is
probably above their pay grade if they are trying to get into
the system. You and they are joined at the hip on this issue,
so it may be someplace else trying to hook in various parts of
the D.C. government.
Judge King. If I might, Congresswoman Norton, two things
that we are doing, we are doing the best we can, regardless of
the environment that we are in. First, in choosing our IJIS
contractor, we chose as universal a platform as we could, in
other words, so that whatever the District ended up developing
we would have a relatively easy time connecting in and sharing
data.
The other thing is that we have piggybacked on a new system
on the criminal justice side, a justice information exchange
system and allowed CFSA to use that.
Ms. Norton. Is that temporary?
Judge King. Temporarily--and that is successful. They have
become one of the heaviest users of that system because it
provides a way of sharing data.
Ms. Norton. That is excellent, trying to find another way
to do it. Appreciate you trying to get around the usual
bureaucratic barriers.
I have a special interest in one subject, and that is drug
abuse. Drug abuse, often minor drug crimes, that is to say
crimes that do not involve violence, are chiefly responsible
for the filling of the courts, particularly of black men of
color and now--increasingly now black women, who are often the
guardians of these children.
History will write--the mandatory minimums, thank goodness
we don't have those in the District of Columbia. We have our
own system of judging how much time will be spent. But history
will write that the Congress of the United States is chiefly
responsible for the fact that 75 percent of African American
children are born to single women and increasingly other
families are involved in the same cycle. It is one of the
crimes of our age.
There are a huge number of women who are entering the
system, and those women are almost entirely there because of
drug abuse, often because they are related to some man, I must
say, but often to get money, because they are ill-equipped to
work and live in inner cities where the only job is running
drugs.
Now, therefore, I am particularly interested in this family
treatment court. GAO found that one of the chief barriers that
the family court faced in meeting its goals was the shortage of
substance and treatment services. I would like to know what
this shortage--whether you are dependent upon the city's
treatment services. How do you get a mother whose chief problem
with her child is neglect because of drug abuse into the system
and whether this family treatment court gets you any priority
when the District is completely overrun with calls for
treatment, as are most cities in the United States.
Judge Satterfield. The funding for family treatment court,
which has been in existence for about a year now, consists of--
we have a grant that provides for--the family treatment court
coordinator is hired by the court, but this program is in
partnership with CFSA. They have provided money.
Ms. Norton. Excuse me. This is money you have applied for
from the Federal Government?
Judge Satterfield. Yes. Court improvement grant that we had
that we are using for our coordinator position. But the actual
treatment part of it for the women in the family treatment
court and the residential treatment facility, that money came
out of CFSA's budget, and they took it to their drug abuse
agency, and that is where that is coming from. We have been
promised that this program will continue.
Ms. Norton. You got money for the grant. The grant comes
from the Federal Government.
Judge Satterfield. For the coordinator position, the
coordinator we have hired to help us administer this program.
Ms. Norton. I am not interested in that. I am interested in
the treatment money. Is there money for treatment that is
independent from the District of Columbia?
Judge Satterfield. No.
Ms. Norton. My God.
Judge Satterfield. Just yesterday--we have a juvenile drug
court, and we use the Psychiatric Institute of Washington to do
detoxification for our juveniles, and they have been receiving
funding from APRA to do that. I received a call yesterday
saying that's going to stop in May, and that impacts on us
getting the youth in the juvenile court--most of them test
positive for marijuana and/or PCP--to get them started and
clean so that they come in with a clear mind to the juvenile
court and go through the treatment process. That is always
something that is an obstacle in trying to get this service in
place in addition to getting mental health evaluations in place
sooner and therapy.
Ms. Norton. I am going to say what I said to Judge King:
You ought to look proactively at things before somebody decides
that they got to rummage through the court's affairs. You are
already beginning to see this happen, not to the court but to
Oak Hill, and that is going to lead them right back to the
court. Because what they found was that many of these children
have drug abuse problems, and somebody's going to look at their
commitment and somehow drag the courts into this. And we know
the problems have originated right there as well.
But I want to know, in light of what you have just said,
that essentially you just got dibs on the District system, how
is this family treatment court able to operate and to achieve
results and indeed what have been the results. I mean, not how
many people have gone through the system but what kinds of
successes, how many people get in, do they get in immediately,
what is the wait--that kind of information would be helpful.
Judge Satterfield. I can give you some of that now.
We just started having a waiting list now. It took awhile
for the program to get up to speed. We were a little concerned
in the beginning that we weren't getting enough mothers because
we knew that there was a huge substance problem.
Ms. Norton. What happened? You didn't get the money for the
coordinator?
Judge Satterfield. It wasn't the money issue. It was just
parents choosing to come in. We would say, you can stay with
your child if you come in this program; and some parents would
say, take my child.
Ms. Norton. Why would they say that?
Judge Satterfield. Because they are not ready to cure their
illness.
Ms. Norton. Well, then they said the right thing.
Judge Satterfield. And we would take their child. But the
ones who have agreed and saw the benefits of it, now we have a
waiting list.
Ms. Norton. Is there counseling so the mother understands
what she's doing and it is hard for everybody to beat a drug
problem?
Judge Satterfield. They go through a rigorous presentation
in the family treatment court when we deem that case to be
eligible.
Ms. Norton. A child is taken on a temporary basis? She may
lose the child altogether.
Judge Satterfield. The child is removed--even when the
mother is going into the program, we remove the child initially
while the mother goes through the detoxification.
Ms. Norton. I'm talking about the mother who says, you have
to take my child because I can't----
Judge Satterfield. We take the child and we go through the
case like any other case in terms of moving toward permanency.
Ms. Norton. You have to do it. But----
Judge King. Before you--as you will be leaving shortly, on
the topic on funding for drug treatment, all of our community
court efforts depend on a similar--ultimately, on the city's
supply of drug treatment options; and we are very concerned
that continue because, obviously, we can't----
Ms. Norton. Because now we don't have a sense of what the
call on drug treatment will be, because women have only gotten
to the point where they--this is something you really need to
draw to our attention. Of all the parts of the system--and I
don't know how the District decides on priorities. But of all
the parts of the system, double damage is done here, because
you have the drug-addicted mother and then you have the
possibility of a child losing a parent--I should say triple--
and then going to a foster home, and we don't have enough
foster homes. This is a terrible thing to have happen to a
child, although I must applaud what you are doing.
This women isn't ready. We are not adding this child to the
list of casualties of that family. This child has to be given
the best possible chance.
But what interests me--and when I say proactive, I mean
bring things also to our attention early. For example, if in
fact there developed--let me ask you first, you are able to get
these mothers treatment right away.
Judge Satterfield. Right away, because they immediately go
from detoxification into the residential program.
Ms. Norton. In terms of depending on the District to let
you in, the District lets you in right away.
Judge Satterfield. The contract we have for the family
treatment court, which is for a total of 36 women throughout
the year that the treatment court has been existence, the
facility can only hold up to 18 women at a time and up to four
children per woman.
Ms. Norton. That money has been set aside.
Judge Satterfield. That money has been set aside, and we
have been told that this program has been obligated for next
year.
Ms. Norton. The court has its own special treatment program
for these women?
Judge Satterfield. In partnership with CFSA.
Ms. Norton. With their own contractor.
Judge Satterfield. Contractor that they hired.
Ms. Norton. All I am asking then is, don't let this program
develop a backlog before you inform me as your representative.
If we can somehow--I am also not for fooling around with these
women. I am not just saying, here's your second and third time
for neglect of a child, and you end up with a Brianna Blackman.
But I certainly think that the harm done to going into the
foster child system, the extraordinary harm done just to the
child--children would often even prefer to be with a drug-
addicted mother. And I am sorry, we can't let that happen, and
we certainly won't.
Judge Satterfield. We will extend the invitation to you,
Congresswoman Norton and Chairman Davis, to visit the
residential facility out in southeast.
Ms. Norton. That I would like to do. But I think that we
got to keep a priority on that. We got to keep the funds there.
You say it is only 18 at a time. Does that mean we don't have
other people waiting to get in?
Judge Satterfield. We have people currently waiting to get
in. Because one of the problems that we do encounter is that
there are housing problems for some of the women when they
leave, and we want to make sure they have appropriate housing.
Doesn't make any sense to have them in that facility for 6
months with their children and only have to remove their
children because they don't have adequate housing.
Ms. Norton. That is another problem that you have to work
with CFSA.
Judge Satterfield. Yes. That's the issue that we're working
with D.C. Housing Authority, to have adequate housing when the
women are ready to graduate out of the residential phase of the
program.
Ms. Norton. Absolute priority it seems to me.
I'm interested in the young people who age out. Everybody
is about to lose jurisdiction of these children, and, of
course, you hear all these stories, anecdotal, but we know from
some of our agencies that these children sometimes end up
homeless and the rest. Would you tell us about your so-called
benchmark permanency hearing pilot program?
Judge Satterfield. You are absolutely correct. What we see
from young people across the country, some are committing
suicide or some don't have a home to go to, much like our kids
would have a home to come back to when they go out to college
or otherwise and some have no support. Because we have about a
20 to 25 percent caseload of children that may age out of the
system, we decided to embark on this project that we have seen
happen in Cook County in Chicago, IL, where we have benchmark
hearings.
We start out with one of our magistrate judges, and it is
designed to sit down in a formal setting with the judge and
members of CFSA. If mental health is an issue, mental health
people are there; if drugs are an issue, they are there; and to
really start to develop certain projects with the child that
will lead the youth to independence. Even as simple as you come
back in 2 weeks with your driver's license or you come back
with a banking account, those types of things we are doing with
the child in order to improve that. We are asking them to
identify someone who can be around when they age out so they
can go back to for support, and we start developing a
relationship with that person and having that person come to
court.
Ms. Norton. This is so important. Sometimes the State, the
District of Columbia, the court, has put hundreds of thousands
of dollars into making sure this child emerges whole at 18 or
21, and then it goes away because of aging out.
Let me go through--the chairman is gone for a few minutes.
I am interested in your report back on the family treatment
court. I want to know not simply how many people go in. I want
to know if it takes--if the treatment takes, how many--how
successful is the treatment? What is the followup?
You know, it takes me a long time and a lot of willpower
not to engage in sweets, because I have a sweet tooth. I can't
imagine what it must be to get off drugs.
You have to tell us what you call success. For example, one
way to look at a success is a woman who has been free and has
had her child for a year and our followup shows there is no
abuse and neglect. That seems to me is very important. That's
the way you improve a program.
Let me go quickly here. I asked for this, and I would like
a report back to the chairman and to me on that question.
I'd ask a similar report back on the ADR. I was very
pleased at the way family court is using ADR. If you can avoid
formal court proceedings, the better. I'd like a report on--if
you don't have these statistics now, are these agreements kept?
You can settle the case. If you are a lawyer, you settle the
case. You are a member of the bar, keeping an agreement. When
you have an agreement, ADR agreement, you are dealing with
people at various levels of education, of experience. I'd like
you to report back on, again, what is a success on ADR with the
family court? Do, in fact, these agreements hold up when lay
people have to understand, you know, when you sign this, you
are signing a legal document?
Let me go quickly to the probate court. Geez, this was a
shock. This is pretty terrible. I appreciate, Judge King, that
you handled quickly with the judicial order this matter.
For example, that you have to certify that you have
recently checked on a client's health, accounted for the money,
no new appointments, if there had been ethical complaints, of
course, you always depended upon the register of wills.
Register of wills wasn't the best steward reporting to the
court. There is concern that people who are dishonest, that
work on the margins enough to do some of what was reported in
the Post might also say to the court, yes, I'm doing exactly
what you say. I'm checking on the client's health. I'm
reporting in to the register of wills, etc. Have these
declarations, these affidavits, in fact, improved the
underlying concern, considering that they are self-declarations
and the court can't go around obviously and do an investigation
of each attorney? How do you know that what people declare that
they have recently checked on their client's health, fully
accounted for the money and so forth, is in fact being carried
out by members of the bar who were engaged--some of them--in
criminal acts?
Judge Lopez. As far as the money is concerned, the
accounting the conservator must file must be submitted with
supporting documentation, bank statements, canceled checks.
Ms. Norton. The money is clear. I have checked on this
person, the health of this person.
Judge Lopez. That one depends on the ethics of the
individual.
Ms. Norton. Why shouldn't it depend on the health? Hasn't--
for example, isn't everybody entitled, assuming there is enough
funds involved, to a physical once a year? You and I get a
physical once a year. Shouldn't an attorney who has
responsibility for an adult or a child who can't take care of
himself have to submit something?
Judge Lopez. I fully agree with you, and one of the things
we are exploring is to find a method to do some kind of
physical auditing of cases of the guardianships. A variety of
suggestions have been made by the bar, and we are going to work
with them to find some kind of method that will be satisfactory
in order to have some kind of physical audit of the reports of
the guardian to fully satisfy ourselves.
Ms. Norton. There is a limit on what you can do there, and
some of it can be spot checking and the rest. I do urge you to
look for what you'd look for for funds. You have to have a
receipt, and you have to think about what that would be.
But I gave as an example that there has been a physical.
That can't be the entire thing, but at least you will know that
the person is in good health. I'm not sure that having a family
member or friend would do any better. I mean, such people can
be dishonest as well, but there are jurisdictions that require
you to go there first before you go to training. Do you have
preference on that matter, whether it is a family member or
friend or a lawyer?
Judge Lopez. The statutory requirement is that we give
preference to family members with the discretion as to whether
or not there are available family members that would be
available to perform the function or family members that we
can, after interviewing, believe that they will follow through
in performing the function, because otherwise we wind up
appointing a member of the bar.
Ms. Norton. What percentage of these cases can be handled
by relatives or friends?
Judge Lopez. Well, I think 100 percent could be handled by
relative or friends if they are relatives or friends that are
willing to perform.
Ms. Norton. No. I'm sorry. I am asking for your results. I
am asking for how many of these cases are being handled--what
percentage of these cases are being handled by relatives or
friends?
Judge Lopez. That statistic I do not have, but I can
provide it.
Ms. Norton. If you would, I would appreciate it.
[The information referred to follows:]
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Ms. Norton. How are you assuring that the register of wills
is doing his or her job? These people report still to the
register of wills.
Judge Lopez. Yes. Yes.
Ms. Norton. That person, in turn, didn't always report
these results to you.
Judge Lopez. The register of wills is the administrative
arm of the Probate Division. They have auditors to audit the
reports and provide the court any irregularities that appear in
the reports, which includes also in the accounting--any
irregularities that appear in the accounting that will be
reported to the court.
Ms. Norton. Just--so you are monitoring the register of
wills just as much as you are monitoring the lawyers.
Judge King. If I may add, I know that some of the problems
that were talked about publicly were--didn't get through. That
is obviously--the entire division has to tighten up on that.
Ultimately, at the end of the day, all but one or two of those
problems were discovered first by the court. The Post published
them, but we discovered them first and were aware of them.
Ms. Norton. You were aware of them in the order that you
issued only after it was reported by the courts. It should have
been issued long before the Post got ahold of it, Judge.
Judge King. Unfortunately, not enough ahead of time to have
cured it by the time the Post got ahold of it. My only point is
it wasn't a complete breakdown. It was we didn't get to it as
soon as we must.
Ms. Norton. That goes to my question about proactive work.
Judge King. I couldn't agree more.
The other thing is that the decisions in the probate court
are made by judges, not by the register of wills.
Ms. Norton. I am talking about the information flow. Just
as you are dependent upon CFSA, therefore, we had to interface
the register of wills to do his job.
Look, one more question. Mr. Chairman wants to get on the
next panel. One more question.
What was really so alarming about what the Post reported
was their notion that this tight group of lawyers all knew each
other, they recommended each other for court appointments, that
often these appointments were the only source of the person's
practice. One of the judges who got into the greatest trouble
was--one of the busiest lawyers appointed 70 times, $118,000 in
fees, rarely disciplined, etc.
Is this work being spread out so that folks are not asking
for recommendations from other folks who are scratching each
other's backs? And why should it simply go to folks who need
the money in order to be in practice at all? Why shouldn't it
be spread out among lawyers of all kind, including some who are
very busy but who regard this as important work to be done? And
what are you doing to make sure you diversify the bar that does
this work?
Judge Lopez. We maintain that fiduciary list of attorneys
that are qualified for appointment of cases.
Ms. Norton. You insist upon training now.
Judge Lopez. Correct. The way we are going on appointment
is essentially going alphabetically down the list. Every so
often we will skip the list and go to another name, simply
where we have a case that has certain complexity that a certain
attorney is prepared to handle that complexity. Otherwise, we
just go alphabetically on the list.
Ms. Norton. So it means that you won't get reappointed for
a long time then?
Judge Lopez. Exactly.
Ms. Norton. Mr. Chairman, thank you very much for your
indulgence.
Chairman Tom Davis. Thank you.
I want to thank this panel for your indulgence. I think we
covered a lot of ground on this. We appreciate the job you are
doing and look forward to continue to work with you.
Call up our second panel. We have Cornelia Ashby, the
Director of Education, Workforce and Income Security Issues,
from GAO; Mr. Elliott Hall, chairman of the Council for Court
Excellence; Rhonda Dahlman, esquire, the Legal Counsel for the
Elderly, American Association of Retired Persons; Mr. Nicholas
Ward, esquire, former chairman, Guardian and Conservator
Committee, the District of Columbia Bar Association; and
Michael Curtin, esquire, the former deputy register of wills,
member of the District of Columbia Bar Association.
It is our committee's policy that we swear all witnesses in
before your testimony. Thank you for sticking with us. You can
see from some of the questions I think you know where our
anxieties are.
[Witnesses sworn.]
Chairman Tom Davis. We have Ms. Ashby. We will start with
you and give your report. We try to stay to 5 minutes.
Obviously, we didn't stay to our 5 minutes on the questions,
but we are a little lax. So thank you for your work on this,
and I will start with you.
STATEMENTS OF CORNELIA M. ASHBY, DIRECTOR, EDUCATION, WORKFORCE
AND INCOME SECURITY ISSUES, U.S. GENERAL ACCOUNTING OFFICE;
ELLIOTT S. HALL, CHAIRMAN, COUNCIL FOR COURT EXCELLENCE; RHONDA
DAHLMAN, ESQUIRE, LEGAL COUNSEL FOR THE ELDERLY, AMERICAN
ASSOCIATION OF RETIRED PERSONS; NICHOLAS WARD, ESQUIRE, FORMER
CHAIRMAN, GUARDIAN AND CONSERVATOR COMMITTEE, DISTRICT OF
COLUMBIA BAR ASSOCIATION; AND MICHAEL F. CURTIN, ESQUIRE,
FORMER DEPUTY REGISTER OF WILLS, MEMBER, DISTRICT OF COLUMBIA
BAR
Ms. Ashby. Thank you, Mr. Chairman. I am pleased to be here
today to discuss the progress the family court has made in
complying with the D.C. Family Court Act. My comments are based
on our January 2004, report on the superior and family courts'
implementation of the act and the report we issued in May 2003,
at the request of this committee on CFSA's performance.
The family court met established timeframes for
transferring child welfare cases into the family court. As of
November 2003, only 30 of approximately 3,500 cases that were
to be transferred to the family court remained outside the
family court and had not been closed. According to information
provided by the superior court, the cases remaining outside the
family court involved children with emotional or educational
disabilities, who on average were 14 years old and had been in
foster care for 8 years, nearly three times the average number
of years in care for a child in the District.
In addition to transferred cases, the family court is
responsible for the routine handling of all newly filed child
welfare cases.
The chart to my right shows the steps for managing child
abuse and neglect cases in the D.C. Family Court. That chart is
also in our statement.
The family court has decreased the timeframes for resolving
abuse and neglect cases. For example, between 2001 and 2003,
the median time to begin adjudication hearings to determine
whether the evidence supported abuse and neglect allegations
declined more than 80 percent. Similarly, the median days to
begin disposition to establish immediate placement for children
declined about 80 percent.
Despite these declines, the family court has not achieved
full compliance with the asked-for requirement to hold
permanency hearings within 12 months of a child's placement in
foster care. However, the percentage of cases with timely
permanency hearings increased from 25 percent in March 2001, to
55 percent in September 2002; and perhaps during the question
period I can give our perspective on why our percentages differ
from those of the court.
Although the presence of additional magistrate judges has
increased the family court's ability to process additional
cases in a timely manner, court officials have said other
factors have also improved the court's timeliness. However,
barriers continue to impede the family court's full achievement
of asked-for compliance. Among these barriers are lengthy waits
for housing, which might take up to a year, and the need for
parents to receive mental health services or, as you pointed
out, substance abuse treatment before they can reunite with the
child.
In addition, associate and magistrate judges cited factors
that have affected the court's ability to fully implement the
one-family, one-judge concept. Family identification of all
cases involving the same child depends on access to complete,
timely and accurate data; and that is the superior court's new
case management system. The working relationship between family
court and CFSA has improved. As presiding Judge Satterfield
told us earlier, family court and CFSA communicate frequently
about day-to-day operations as well as long-term plans
involving foster care case management and related court
priorities.
However, family court judges and CFSA officials noted
several hindrances that constrain their working relationship.
Such hindrances include the need for case workers to balance
court appearances with other case management duties and
differing opinions about the responsibilities of CFSA case
workers and judges.
The D.C. courts have made progress in preparing permanent
space for the family court. As Chief Justice King said, the
first phase of the family court construction project scheduled
for completion in July 2004, will consolidate family court
support services and provide additional courtrooms, hearing
rooms and judges' chambers. In addition, the project will
provide an expanded mayor's liaison office which coordinates
family court services for families and the new family waiting
areas as well as other facilities.
The Superior Court in the District of Columbia is
exchanging some data and making progress toward developing
capability to share data among their respective information
systems. For example, in August 2003, the superior court began
using IJIS to provide CFSA and the Office of the Corporation
Council with information on the date, time and location of
scheduled court proceedings.
While the court has made progress, it has not yet resolved
several critical issues we first reported in August 2002.
According to the program manager, the District's Office of
Chief Technology officer will work to resolve the issues we
raised in our August 2002, report and incorporate the solutions
into its plans.
In conclusion, while the superior court, family court and
the District have made progress in implementing the D.C. Family
Court Act, several issues continue to impede the court's
progress in meeting all requirements of the act. Barriers such
as the lack of substance abuse services hinder the court's
ability to more quickly process cases. While the superior court
and the District have made progress in exchanging information,
it remains paramount that their plans fully address several
critical issues.
Finally, while progress has been made in enhancing the
working relationship between the family court and CFSA, this is
an area that requires continuous vigilance and improvement in
order to ensure the safety and well-being of the District's
children.
Mr. Chairman and Congresswoman Norton, this concludes my
statement. I will be glad to answer any questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Ashby follows:]
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Chairman Tom Davis. Mr. Hall.
Mr. Hall. Good morning, Chairman Davis and Congresswoman
Norton and other members of the committee. Thank you for
inviting the Council for Court Excellence to provide testimony
at today's hearing. My name is Elliott Hall, and I have served
as Chair of the CCE since June of last year. I am honored to
present the views of the Council to this committee.
For the record, let me summarize the mission of the Council
for Court Excellence.
The Council is a District of Columbia nonpartisan,
nonprofit civic organization that has worked for over 20 years
to improve the administration of justice in the local and
Federal courts and related agencies in the Washington, DC,
area.
Let me begin by discussing the family court. The Council
for Court Excellence is about to publish a comprehensive report
on the performance of the District of Columbia's child
protection system. The report addresses the city's compliance
with the Adoption and Safe Families Act and the D.C. Family
Court Act of 2001. The report is based on comprehensive
research the Council conducted in the second half of 2003 with
generous funding from Congress.
In summary, the Council's research shows that neglected or
abused D.C. children are in far better hands now than they were
a few years ago. In the aggregate, the city's child protection
system is performing at a far higher level than before, though
there is still a need for improvement overall. It is also worth
remembering that improved overall performance can never
guarantee against bad occurrences in individual cases.
The CCE report documents steadily increasing compliance
rates with Federal and DC ASFA deadlines. That increased
compliance no doubt has been aided recently by the
significantly improved practices and procedures implemented as
required by the Family Court Act. The report also documents
nearly complete compliance with each requirement of the Family
Court Act, though progress is slower on the Mayor's Safe
Passage data system.
Even more important, the case-processing improvements are
beginning to translate into shorter stays in foster care for
many D.C. children. Data from 2002 and 2003 indicate that those
children who can safely be reunited with their families are
going home in less than 1 year's time. This is a significant
improvement from pre-D.C. ASFA days when it took nearly 2 years
to reunify children with their families.
While some important questions remain unanswered, the CCE
report is largely a good news story. Additional work must be
done to ensure better outcomes for all neglected or abused
children, but D.C. child welfare system leaders deserve praise
for the excellent work they have done to date. The Mayor, the
D.C. Council and Congress also deserve praise for increasing
both local and Federal funding to this system. Those
investments are producing better outcomes for the city's
neglected and abused children.
Now for the Probate Division, adult guardianship and
conservatorship. On June 15 and 16 of last year, the Washington
Post published a series on the D.C. adult guardianship and
conservatorship system which extensively researched and
documented lax oversight by the court of adult wards of the
court and patterns of neglect by some of the D.C. Superior
Court's Probate Division panel of approved attorneys who are
eligible for such appointments.
On June 17, 2003, the chief judge of the D.C. Superior
Court issued an administrative order relating to Probate
Division panels and oversight. That order sought to address
some of the issues in the Post articles.
On June 19, 2003, the Council joined the Bar Association of
D.C. to form a Probate Review Committee to discuss the issues
raised by the articles. The Review Committee issued its final
report in late February to Chief Judge King but the report has
not been made public, pending action by the D.C. Superior
Court.
The report offers recommendations addressing selected
Probate Division administrative and operating procedures,
including providing direct judicial oversight of guardianship
and conservator reports; enhancing communication between the
probate bar, the bench and Probate Division staff; suspending
or disqualifying from the fiduciary panel seriously derelict
probate attorneys; and other issues.
The Council supports the findings and recommendations of
the Probate Review Committee as far as they go, but strongly
believes that further attention is required to address and
remedy the issues brought to public light by the articles.
Now to issues of general court administration.
With regard to general court administration, similar to our
analysis of the family court and Probate Division, there is
some good news to report since our last appearance before this
committee in June 2002. The Council's court observation studies
of the Civil and Criminal Divisions of the superior court
completed in 2001 and 2002 remain true today with respect to
the high caliber of judges and their success in providing the
community with a high quality of justice. We also want to
recognize the court for having written and published a
strategic plan and for their followup in the form of four
upcoming town hall meetings that will give residents in all
wards of the city an opportunity to share their views about the
D.C. Superior Court and the court of appeals and to talk with
court leaders about important issues facing residents
throughout the District. Such outreach is an important step.
We also applaud the court's establishment of a pilot
community court for police Districts 6 and 7 and can report
that, after only a 2-year period, the pilot is functioning
fairly well.
The establishment of a community court was one of the 27
recommendations made in the Council's April 2001 report, ``A
Roadmap to a Better D.C. Criminal Justice System.'' CCE's
December 2003, report, ``Two Years Down the Road,'' is the
result of a 10-month study conducted last year with generous
funding from Congress. The study charted the progress of
efforts made to increase the efficiency of the D.C. criminal
justice system based on the 27 recommendations of our April
2001, roadmap report. The new report recognizes stakeholder
agencies, the D.C. criminal justice system is indeed headed
down the positive reform path. But much work remains to be
done, including expanding the court's work in applying revised
scheduling practices to the felony area, which consumes most of
the police overtime relating to prosecutor and court
appearances.
Other issues with which CCE is concerned include: one, the
continuing delay in production of court transcripts; and two,
the lack of transparency of court information in general and
budgetary information specifically from a public institution.
We believe such information should be readily available to
everyone and should be posted on the court's Web site, as
should the court's annual reports.
We commend this committee for your policy and fiscal
leadership in overseeing the court's in the District of
Columbia and thank you for holding this oversight hearing which
we believe should be done on an annual basis. We appreciate the
courts providing us with a copy of its budget submission to
Congress, and we commend the courts for the high quality of
that budget package. We also thank the D.C. courts for the
plans they have laid out and the manner in which they have
received our various recommendations. We continue to look
forward to working with the D.C. courts and with this
committee.
I am happy to answer your questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Hall follows:]
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Chairman Tom Davis. Ms. Dahlman, thank you for being with
us.
Ms. Dahlman. Good morning, Chairman Davis and Delegate
Norton. My name is Rhonda Dahlman. I am an attorney at Legal
Counsel for the Elderly in the District of Columbia, an
affiliated organization of the AARP. Through funding from the
Older Americans Act, we provide free legal representation to
older residents of the District. On behalf of AARP, LCE and the
vulnerable clients for whom I advocate, thank you for inviting
us to discuss D.C. guardianship law and practice.
Guardianship must be imposed only with the full protection
of the individual's due process rights. It is the court's
responsibility not only to determine whether and how much
guardianship is warranted but also to appoint qualified
individuals to serve and to monitor the guardian to ensure that
the purpose of the guardianship is being fulfilled. In short,
the ward must be better off, not worse off because of the
court's action.
We identify three critical areas of improvement needed
within our current protective services in the court system.
First, we need qualified guardians. When there's no
available or appropriate family member to serve, the court
generally appoints members of the bar. In my tenure as legal
counsel, I have had experience with conscientious and
proactive--a word that I know you like, Delegate Norton--very
proactive guardians. Unfortunately, I have also had too many
experiences with guardians who are not attentive to their
responsibilities and ill-equipped to make even basic decisions
on behalf of their wards.
Although recently the court implemented a mandatory
training for guardians and conservators in the area of probate
law, additional topics should be included in the curriculum. I
have experienced attorney guardians who have no knowledge in
other areas of law in which their wards may be involved.
For example, I petitioned the court for a guardianship for
an elderly tenant who had been committed to a mental health
facility and faced eviction due to nonpayment of rent. While
there was agreement that the ward would not be able to return
to the community, there was no one to remove her personal
belongings and store those belongings. Unfortunately--though I
got an emergency guardian appointed. Unfortunately, the court-
appointed guardian took 3 months to do anything for his ward;
and once I found out nothing had been done, he informed me that
he did not know what to do in this situation. The fact that the
ward's personal belongings were not thrown out on the street
was due to her housing provider who had contacted me, not her
guardian.
One simple improvement would be for the court to note on
its guardian conservator list those attorneys who are trained
and experienced in other areas of the law that relate to the
needs of the ward.
Another improvement would be to require that all court-
appointed guardians and conservators attend at least two
trainings a year offered by the D.C. Bar in areas of tenant
law, public benefits, and consumer matters. You would be
surprised at how many guardians don't understand that their
wards need to recertify for Medicaid or to get on Medicaid and
they don't know that process.
We also recommend that the court utilize training by
qualified community social workers so that guardians are aware
of the many social services in the District available to their
wards.
I can tell you that neither of these recommendations would
create any additional financial burden to the court.
In addition to receiving more comprehensive training, we
recommend that any nonfamily guardians be certified through a
written examination. Certification is one way to ensure the
courts and the community that guardians have a basic
understanding of their fiduciary duties and grounding in local
law and practice.
We also recommend a public guardian program be instituted,
even if it is somewhat of a pilot project. The program would
provide guardianship services as a last resort when
guardianship is appropriate but there's no qualified relative
to serve. A good public guardian program would be an effective
advocate for quality care in long-term care facilities which I
will tell you is an area where we often find an extensive
amount of neglected wards who do not have involved families.
Last, we need better monitoring of existing cases. The
court appointment of a qualified guardian or conservator is
merely a first step. The court has ongoing responsibility to
ensure that guardians promote the welfare of those in their
care. Most often, guardianship petitions are filed because
there is looming health or safety risk faced by the subject. If
the court, like in other areas of the courthouse, set status
hearings in appropriate cases subsequent to the appointment of
the guardian, it would inherently provide the court with direct
oversight.
D.C., like all States, requires guardians and conservators
to account to the court on a regular basis. Beyond that
requirement and compared to other States, the D.C. code
provides little guidance as to how the courts are to carry out
its monitoring responsibilities. Chief Judge King is to be
commended for his recent efforts to tighten the process, but
there is still much room for improvement. Notices of
appointments are sometimes taking weeks to get to the newly
appointed conservator and guardians. If the court had a
separate monitoring team that reviewed cases regularly, there
would be much less room for court administrative errors and
guardian neglect of this most vulnerable population.
Thank you for the opportunity to discuss with you the way
older D.C. residents who need protection of the court find
justice they deserve and to which they are entitled, and I will
be glad to answer questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Dahlman follows:]
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Chairman Tom Davis. Mr. Ward.
Mr. Ward. Good morning. I have been practicing law in the
District of Columbia since 1967, principally in the fields of
trust and estates. I have served on the Superior Court Advisory
Committee on Probate and Fiduciary Rules since 1975. During
1987 and 1988, I served as consultant register of wills for 9
months. My co-authored book, ``Wills, Trusts and Estates,'' is
about to published in its fourth edition.
The Office of the Register of Wills dates back to February
27, 1801; and the register of wills was a Presidential
appointee until 1946. The register of wills continues as a
statutory office under Title 11 of the D.C. code and is
appointed by the superior court. Under the provisions of the
Home Rule Act, the City Council may not enact any act,
resolution or rule with respect to any provision of Title 11.
Several salutary changes to the statutory operations of the
register of wills, accordingly, may only be made by the
Congress.
I offer three proposed changes that Congress ought to make
to Title 11.
One, in Maryland since 1970 a register of wills may sign an
order admitting a will to probate and appoint a personal
representative. When the City Council adopted the Probate
Reform Act of 1980, it concluded that it could not give this
power to the register of wills stating: that earlier proposals
to increase the powers and responsibilities of the register of
wills with respect to uncontested estate administration issues
would involve amending Title 11 of the D.C. code and thus be
beyond the jurisdiction of this council.
There are 2,500 new decedents' estates opened each year in
the District of Columbia. If the judges had 2,500 fewer orders
to sign, they would have more time to devote to matters more
suited to their skills and the register would spend less time
writing up advisory slips for the judges. Please give the
register of wills the authority to admit wills to probate and
appoint personal representatives in testate and intestate
cases.
Two, guardians appointed in an intervention proceeding are
obliged to file guardianship reports every 6 months on a court-
developed form. It was determined by the register of wills and
the Advisory Committee on Probate and Fiduciary Rules when the
rules to implement the intervention act were being written that
the Office of the Register of Wills would not ``audit'' these
reports as the Office did not have anyone on the staff who
really had social worker type competence to audit the reports.
The role of the Office would simply be to monitor the filing of
the reports but not their content.
While there is a director of social services in the
superior court, this director has no jurisdiction over any
adult under supervision. While the officer of the District of
Columbia courts may appoint such personnel as may be needed by
the register of wills, rather than put the register of wills in
the middle of what could be arguably be an unwanted expansion
of the powers of the Office without a statutory predicate, the
Congress should amend the provisions of Title 11 to create the
position of auditor of social services to be filed by a trained
social worker who could both develop a new, more meaningful
guardianship report and monitor the contents filed of
guardianship reports to ensure that the wards are receiving
minimally adequate care.
Three. Conservators in intervention proceedings are given
statutory power to invest their ward's assets as would a
trustee. The court rules provide a prudent investor standard
for fiduciary investment by fiduciaries reporting to the court,
but, other than advising fiduciaries that bank balances must be
kept within Federal insurance limits as required by the
Intervention Act, the auditors rarely question investments
because they are not trained to recognize a bad investment from
a good one.
If the register of wills had an investment officer who was
trained in investments, the register of wills could much better
monitor the conservator's investments of a ward's assets.
Again, not to put the register of wills in the middle, the
Congress should amend Title 11 to create the position, and
definition of requirements for, an investment officer in the
Office of the Register of Wills.
Three other matters not requiring a solution by an act of
Congress. Joint control. When a fiduciary is required to post
bond, the bonding companies require the fiduciary to file an
application for a bond. If the fiduciary cannot qualify for the
bond, the fiduciary cannot be appointed. A practice developed
where the bonding companies agreed to write the bond if the
bank would agree not to honor checks unless cosigned by the
fiduciary's attorney acting on behalf of a surety, a practice
which has received statutory recognition.
The court in the recent past decided not to permit this
practice to continue. The effect is to force fiduciaries to
make their attorney a cofiduciary, thereby setting a possible
conflict of interest between the attorney's duty to the client
and the attorney's duty as a fiduciary to the ward or the
estate. The committee should admonish the Probate Division to
reinstate joint control.
Two. When the will is a safe deposit box solely titled in
the name of the decedent, the practice used to be for the
register of wills to send one of the appraisers to the bank.
The safe deposit box would be opened, and only the will removed
and taken to the court for filing. The court rules provide a
fee for this, which is $25.
In 1998, the register of wills discontinued this practice
and substituted the filing for an appointment of the special
administrator, a much more cumbersome procedure and
unnecessary. The rationale was that there was no statutory
basis for the practice in that banks were unfamiliar with it.
This committee should admonish the register of wills to
reinstate the practice of sending a representative from the
office to attend safe deposit box openings to search for a
will.
Three, and last. Appointing counsel for the subject as the
conservator for the ward deprives the subject of a zealous
representation when counsel sees a lucrative opportunity to
become the conservator of a wealthy ward. Counsel appointed for
the subject is supposed to provide zealous representation.
Counsel also is supposed to advocate the least restrictive
intervention possible. But if counsel knows there is a good
chance counsel will be appointed conservator, why should we
believe counsel will advocate not appointing a plenary
conservator? The committee should admonish the Probate Division
not to appoint counsel for the subject as the conservator for
the ward.
Thank you for listening.
Chairman Tom Davis. Thank you very much. That was fast
reading, but we got it in under the time.
[The prepared statement of Mr. Ward follows:]
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Chairman Tom Davis. Mr. Curtin, thank you.
Mr. Curtin. Mr. Chairman, Congresswoman Norton and other
committee members, I very much appreciate the committee's offer
to testify before you today.
Mr. Chairman, in your letter dated April 20th, the
committee solicited my views on the appointment,
responsibilities and accountability of the register of wills
and her staff as well as the relationship of the register of
will's office with practitioners, and presumably the public, as
well as the adequacy of the current reporting requirements for
conservators and the enforcement of these requirements. You
have also asked that I comment on the use of new technologies
to streamline guardianship and conservatorship administration.
I am not a tech geek, if you will, Mr. Chairman, so I will
leave the comment on new technologies to more learned folks
than myself.
Having practiced almost exclusively in the Probate Division
since its inception in 1972, and 3 years before that in the
U.S. District Court, the court that formerly had jurisdiction
over trust and estate matters here in the District, as well as
having been employed as the deputy register of wills in that
office from 1966 to 1969, I appear before you with certain
ingrained prejudices and/or biases concerning just about every
facet of the Probate Division's work.
I was fortunate to serve as the reporter for the initial
Advisory Rules Committee formed in 1971 to draft rules
governing the administration of estates, guardianships of
minors, and guardianships and conservatorships of incapacitated
adults. It is my honor to have served on that committee with
members of the bench and bar for more than 23 years. The role
of that committee and all of its successors was to draft those
rules of procedure in the administration of estates,
guardianships and conservatorships in accordance with the
statutory framework first promulgated by the U.S. Congress and,
since 1972, the District of Columbia City Council.
So that the committee can get a full flavor of this
rulemaking process and how it works, let me mention that the
members of the Advisory Committee are selected by the chief
judge of the superior court, and consistently have included
members of the bar with particular expertise and experience in
matters that were handled or brought before the Probate
Division.
In addition, it has been a consistent practice that a
number of superior court judges, including those judges
assigned to the Probate Division sit on the Advisory Rules
Committee. The work of that committee since its inception has
been to periodically meet to discuss and propose modifications
for existing rules as well as new rules that may be deemed
appropriate to more efficiently implement statutory schemes
governing the works of the Probate Division. Those rules are
thereafter reviewed by the Rules Committee of the Board of
Judges of the superior court, and then, if deemed appropriate
by that committee, submitted to the full Board of Judges of the
superior court for approval. They are thereafter put out for
public comment, and after a period of time promulgated as rules
of the court. I think we can all agree that process is very
open and transparent.
Having provided you that thumbnail sketch of the rulemaking
process in the court, now let me tie that process directly into
your committee's focus this morning. The register of wills as
well as key deputies and other senior staff of that office have
either been members of the Advisory Committee or acted as staff
available to the Advisory Committee in drafting the proposed
rules.
Can the rulemaking process governing the Probate Division
be improved? Although as indicated above there is significant
openness and transparency to the process, one suggestion in
that record would be to have the court consider having Advisory
Committee members expanded to include one or more health care
professionals or social workers who could lend a nonlegal
perspective to the discussion and debate, at least in
deliberating over the drafting of rules affecting guardianships
and conservatorships of incapacitated adults.
The appointment, responsibilities and accountability of the
register of wills and her staff. As I am sure you have heard
from the court personnel here this morning, and as Mr. Ward
just alluded, the register of wills is, in fact, appointed by a
Board of Judges of the superior court pursuant to Chapter 21 of
Title 11 of the D.C. code.
In addition to the duties, powers and responsibilities set
forth in Chapter 21 of Title 11, a specific Probate Division
court rule authorizes and, in fact, instructs the register of
wills to review all ex parte matters and to make
recommendations to a Probate Division judge as to whether or
not a proposed order should be signed as submitted. This review
process entails the register or one of her deputies reviewing
the request for ex parte relief and providing a written
recommendation to the court for that purpose. The written
recommendations become part of the court file.
While not a statutorily defined duty, the register of
wills, by virtue of existing court rules, is obligated to
advise the court of any irregularity perceived in connection
with the administration of decedents' estates, guardianships of
minors, or conservatorships and guardianships of incapacitated
adults. These irregularities can run the gamut of failing to
file statutorily mandated or rule-mandated inventories or
accounts and/or failure to comply with audit requests made by
the staff of the register of wills. The current register of
wills, the Honorable Constance Starks, has held that position
since 1988. Since that time there have been no less than four
significant, far-reaching and sweeping changes in the
guardianship/conservatorship statute or the administration of
decedent estates, and most recently a version of the Uniform
Trust Act has been adopted by the District of Columbia.
All of these statutory changes have required substantial
revisions of the rules and procedures as well as undertakings
that govern and guide practitioners and the general public in
this area of the law. The amount of the work done by the
register of wills and her staff, as well as the organized bar
and bench, in adopting rules and procedures consistent with
these numerous changes has been remarkable. I think it is
important to note that all of these changes were implemented
without an ostensible hitch or disruption in the administration
of the decedents' estates or conservatorships or guardianships.
I recognize that the purpose of this hearing or for my
testimony is not to articulate the nuances or the good points
or bad points of these numerous statutes. I mention them only
so that the committee can get an understanding of how
administratively the Office of the Register of Wills positively
coped or dealt with the changes in procedure and administration
due to the changes in the statutes. I hasten to add that
approximately in that same period of time, the staff at the
register of wills office has been reduced from 82 to less than
50.
I think everyone here at this hearing this morning will
agree that the articles that appeared in the Washington Post in
June 2003 were not the best days for the Superior Court of the
District of Columbia. Washington Post reporters did an
extensive study of estate, guardianship and conservatorship
proceedings that had been instituted within the Probate
Division in the last 8 to 10 years prior to that article being
published.
I am morally certain that the survey of available cases
during that time exceeded 20,000. In the 2 days of the Post
article, they highlighted no less than 10 cases of egregious
conduct, where unchecked behavior, where misfeasance or
nonfeasance were not challenged, and in one case outright theft
by a personal representative of the decedent's estate in the
hundreds of thousands of dollars.
In partial response to a question you tendered,
Congresswoman Norton, I hasten to add that as to that just
mentioned example of theft by a personal representative, that
individual was not a lawyer, and there was nothing, absolutely
nothing, that either the register of wills office or the court
could have done to prevent that theft. The estate was operating
under a statutorily mandated, unsupervised administration, and
until a complaint was filed by an interested person, there was
no way that the theft could have been either detected nor
prevented.
Nonetheless, I believe the stories were a wake-up call. It
was a wake-up call for the register of wills office, it was a
wake-up call for the court, and it was a wake-up call for the
bar. The chief judge, in consultation with the presiding judge
of the Probate Division, immediately took steps to deal with
the perceived pattern of conduct that allowed the
irregularities and abuses cited in those articles to be visited
upon the citizens of D.C. The chief judge's administrative
order forthrightly spoke to the practicing bar in unequivocal
terms that we must do better. We have rules to be observed, we
have deadlines to be met, and failure to do so in the future
will, in fact, have consequences.
In the weeks and months since the Washington Post article
and the famous administrative order issued by the chief judge
immediately following those articles, there have been rumors
and grumblings by the organized bar about the draconian nature
of Chief Judge King's order and the register of wills'
implementation of that order.
Chief Judge King properly perceived the problem within the
Probate Division and entered an order that had to be
implemented. I respectfully suggest to the committee, to the
extent that there has been an interest in this dynamic, that
the grumblings had more to do with shooting the messenger, the
implementer, than anything substantive.
In the passage of time, the administrative order has been
amended on two different occasions. While I am not fully
certain, I believe these amendments have addressed the
articulated and, maybe in some instances, legitimate concerns
of the members of bar without diluting the message that comes
loud and clear from Judge King's order: Filings will be made
timely, irregularities will be dealt with directly, and those
fiduciaries abusing their responsibilities will be dealt with
appropriately.
In conclusion, Mr. Chairman, I commend your committee and
its members for its desire to make sure that the superior court
and the various divisions continue to provide outstanding
service in the administration of justice to the citizens of the
District of Columbia. In that role I urge you to continue to
encourage and, yes, even prod the Congress and the executive
branch of the District of Colombia government to provide
resources necessary to continue this work and to enhance the
services to be afforded to the citizens of the District.
I thank you for your time. I will take any questions that
you may want to present.
Chairman Tom Davis. Thank you.
[The prepared statement of Mr. Curtin follows:]
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Chairman Tom Davis. Let me just start where you left off,
Mr. Curtin, and for you, Mr. Ward. Looking back at the Post
article, it notes that in half of the 783 long-term
guardianships initiated between 1995 and 2000, caretakers filed
no reports for 18 months or more, missing their deadlines by at
least a year. According to the Post review of records, that is
in half of the cases. In 170 of those cases, no reports were
filed within 3 years, and 127 or about one-sixth of the cases
the guardians never reported back after they were appointed.
That is the fault certainly of the guardians, but also of the
court in terms of its oversight.
Now, my question is this to both of you: Do you think the
court is adequately exercising its power to sanction lawyers
and fiduciaries in appropriate cases?
Mr. Curtin. Your Honor, I do think--Mr. Chairman, I do
think----
Chairman Tom Davis. I am not an honorable. That is
apparent.
Mr. Curtin. I heard you wanted to a judge. You told us you
wanted to be a judge.
But, Mr. Chairman, I believe that the court does have
adequate ability to sanction a lawyer now. I think the--again,
I don't know--I didn't study each case that they looked at, but
I would dare say that a number of those cases where people
didn't report properly or timely to the court, they were late
folks, and the court really has no sanction except to remove
that fiduciary as a fiduciary. They can't put them in jail.
They are not going to hold them in contempt. What they will do
is eventually remove that PR----
Chairman Tom Davis. Couldn't they order them to report back
by a certain time; if they don't, then you are in contempt?
Mr. Curtin. Yes, they could. And, in fact, that has
happened where they have these summary hearings when they bring
them in and they say--they give them an excuse, and then they
will tell them to come back. But to my knowledge, there has
only been one case where a fiduciary was held in contempt. I
have to say to you that the court of appeals reversed that
trial court's decision.
Chairman Tom Davis. I guess the problem is that once this
stuff gets out of hand, the word gets out, and then nobody
obeys it. So it starts at the top.
Mr. Curtin. I think that was the problem that hopefully
Judge King's administrative order is going to address. When it
involves a lawyer, I can assure you that those notices of--that
you are in default, you are in irregularity, are going to be
met with dispatch, because the sanction now of referral to bar
counsel almost as an automatic is a heavy hammer that works.
Chairman Tom Davis. Mr. Ward, do you have any comments?
Mr. Ward. I would like to suggest to you, however, that in
those cases, if the reports had been timely filed, the ward
would still have suffered, because nobody reads the reports.
And there is nobody who is competent to read the report. And
the reports were written by the Rules Committee, by lawyers who
don't know too much about social work. So the questions that
are asked on the reports aren't necessarily the cleverest
questions.
Chairman Tom Davis. But let me ask you this. The reports
are also sent to interested persons, not just the court.
Doesn't that sometimes generate----
Mr. Ward. Well, if there are interested persons, but
sometimes there aren't.
Mr. Curtin. The answer is yes, they are sent to interested
persons, but--they are required to be sent to interested
persons. Yes.
Chairman Tom Davis. If they are sent anywhere, they are
filed.
Ms. Dahlman. If I might add?
Chairman Tom Davis. Sure.
Ms. Dahlman. I file these petitions on a regular basis. I
do not get these reports. I get these reports if the ward has a
lot of money. I have probably received maybe one or two reports
from guardians that have filed their reports in the past 5
years.
Chairman Tom Davis. How many should you have received?
Ms. Dahlman. Pardon?
Chairman Tom Davis. How many do you think you should have
received?
Ms. Dahlman. I think I should have received all of them.
Chairman Tom Davis. Which is how many?
Ms. Dahlman. I probably file about 30 a year.
Chairman Tom Davis. OK. Mr. Ward, do you think the court is
exercising its powers to sanction lawyers and fiduciaries in
appropriate cases?
Mr. Ward. I think it is doing it inappropriately. There
have been several references to counsel, bar counsel, but have
been dismissed by bar counsel because the decisions were flat
wrong and against the rules, and they are up in the court of
appeals now. The court has the ability to do it, but they use
it sometimes with a heavy hand.
Chairman Tom Davis. Let me move to Ms. Ashby. What action
has the family court implemented to improve working
relationships between the CFSA, social workers and the family
court judges?
Ms. Ashby. Well, as both Judge King and Judge Satterfield
reported, at the highest levels of both organizations there are
meetings, both on day-to-day operations and on longer-term
projects and goals.
The difficulty that we stated in our statement, and also in
our earlier report, was that when you start talking to the
social workers and some of the judges and magistrate judges
themselves, in the practical day to day to day, how do we work
together in resolving a particular case, there are problems.
From a social worker's point of view, the problems stem from
the judges not respecting their ability to make decisions about
well-being, safety of children. Sometimes there are critical
issues at hand. Judges sometimes make rulings that the social
workers don't think it appropriate.
On the other side, from a judge's perspective, they get
frustrated because it takes a long time to get things done.
Sometimes services aren't provided if there is not a court
order. So a court order is issued.
There are a lot of the day-to-day frustrations and
inefficiencies that need to be worked out, but certainly at the
top level, there are lots of opportunities for meetings and
attending training together and conversation and communication.
Chairman Tom Davis. Well, the family court has improved the
percent of cases that comply with that ASFA permanency hearing
requirement. What do you think is needed to further improve
their ability to fully meet this requirement?
Ms. Ashby. Well, maybe this is a good opportunity for me to
address the discrepancy in numbers. There are probably a number
of factors that account for the difference in the percentages
that we reported and those that the court are reporting.
First of all, the definition of what the requisite period
is at issue, I believe. On page 3 of our testimony statement,
we list the ASFA requirement with respect to permanency, and we
say that a permanency hearing must be held within 12 months of
a child's entry into foster care. Entry into foster care is
defined based on the earliest of two dates. One is the date of
the first judicial finding, and the other is the date that is
60 days after the child has been removed from his or her home,
if removal occurs.
It appears that the court is simply taking the second part
of that definition, and that is where the 425 days comes from,
a year, 12 months, plus 60 days, based on information that we
have regarding when the first adjudication hearing occurs, and
that time is decreasing--it has increased more than 80 percent
in the last 2 or 3 years. It would seem that there certainly
must be many cases where the earlier date is the date of that
first judicial finding, and that seems to be ignored.
Also, the dates--actually the information we used came from
the Council for Court Excellence. And we selected those numbers
as opposed to the court's, because those numbers were based on
a case file review. And during that case file review, one of
the things that became evident was that sometimes permanency
hearings are held, but all of the requirements of those
hearings are not met.
A permanency hearing is supposed to result in two things: A
goal for the permanent placement of the child, which can be
reunification, adoption, something else; and a date by which
this is to occur. Quite often there is the goal but no date by
which it is to occur. So it is questionable about whether these
types of proceedings actually constitute permanency hearings.
There are slight timing differences, and that might account for
some of the difference, but it will not account for the total
difference in our numbers.
As was said, the Council for Court Excellence is going to
come out with new numbers very soon, and we look forward to
seeing how they compute those numbers and what they are.
Chairman Tom Davis. Thank you.
Mr. Hall, what measures would you recommend for the Probate
Division to implement to ensure competency on the part of
court-appointed guardians and conservators?
Mr. Hall. The appointment of counsel has played a big role
so far since the publication of those articles in the Post in
making sure that competent counsel are appointed. What we have
pointed out is making certain that you cap the numbers of
guardianship or conservatorship cases that are assigned to an
attorney over a period of time.
I think you mentioned during the course of the hearing
today that some counsel have had a number of cases far
exceeding their capabilities in dealing with them, and capping
those numbers will be----
Chairman Tom Davis. So it is a burden issue as much as a
competency issue?
Mr. Hall. Absolutely.
Chairman Tom Davis. You think that would probably be the
most straightforward----
Mr. Hall. I think the judge mentioned in the last panel
that they are going through these alphabetical listings of
assigning, but there will be some cases with some complexities
that some lawyers with backgrounds in these particular areas
will be more capable of handling.
Chairman Tom Davis. Is thought given, do you think, as
those appointments are made in terms of matching it up with
attorneys of competence?
Mr. Hall. Well, obviously they have avoided that now,
answer to these criticisms, because they are going through in
alphabetical order. That, of course, means there are going to
be various levels of competency for everyone if you use a
purely alphabetical system.
Chairman Tom Davis. Right.
Mr. Hall. In most cases if you stay with a category of
lawyers that are expert in a certain area, of course you are
going to get the kind of problems that we had before. How you
correct that is going to be interesting.
Chairman Tom Davis. Let me ask Ms. Dahlman. I think she has
noted that there are 700 voluntary National Guardianship
Foundation-certified guardians, but none practice in the
District.
Ms. Dahlman. Yes. There are none that are certified in the
District. That is correct.
Chairman Tom Davis. Why do you think that is? What good
does it do you, right?
Ms. Dahlman. Because it is not required.
Chairman Tom Davis. Not required. Doesn't do you any good.
You don't get any bang for it, right?
Ms. Dahlman. No extra kudos for that. It is not required,
and people aren't going to do it. If it is not required, you
are not going to do it. I will give the court credit in these
cases. They don't always stay by that list. We will look.
Chairman Tom Davis. If they get a complex case, they are
going to look for an attorney that can handle it.
Ms. Dahlman. They will look for that attorney. But these
are attorneys, they are not social workers, so we look for the
attorney that can deal with the mental health issues. You know,
but it is difficult, because these are attorneys. They are not
social workers.
Chairman Tom Davis. We don't know every attorney. You have
a long list.
Ms. Dahlman. Exactly.
Bear in mind that we should start public guardian programs,
because then we would have people that would be trained
specifically in those areas of these very difficult cases.
Chairman Tom Davis. I could go on all day with questions.
You have been a great panel. I appreciate it. I am going to
yield to Ms. Norton for some questions.
Ms. Norton. Thank you, Mr. Chairman. I have just a few
questions.
I am confused about this notion of guardians who are
members of family, and guardians who are lawyers, and I would
like the opinion of each of you about this. I don't know if
having a guardian who is a member of the family or friend is,
for example, less expensive than having a lawyer. That would be
something I would be interested in. But my main interest is
whether one necessarily gets better service from a nonlawyer.
You know, we start with the notion that if there is an
available family member, and many of these cases necessarily
involve knowing something not only about the particular issue
before you, but knowing something about how other areas of the
law may, in fact, be affected.
A lawyer is subject to the total control of the court. He
can lose his license. He can be sanctioned in ways that affect
him professionally. I am not convinced that an amateur, simply
because the person is close, is the best guardian, but I don't
know.
And I don't know whether there should be a presumption, one
way or the other, nor am I convinced that simply to send
somebody to a training session makes him somehow a fully
qualified guardian of the kind of lawyer he is. The lawyer
can't tell me, hey, look, I know about tax, therefore I took
this matter for that reason; but I don't have any understanding
of mental health law, so please don't hold me accountable.
Where it seems to me that to require, in this complicated
system, a lay person to have that kind of understanding may be
in its own way risky.
I would like to hear your opinion as to whether or not this
simply ought to be judged not whether or not you are a friend
who looks like you are intelligent, or you are a lawyer who
looks like you know the area, but whether or not this simply
ought to be done on a highly individualized basis with no
presumption one way or the other.
Mr. Curtin. Congresswoman Norton, I would like to respond
by saying that, first of all, the current statutory framework
provides that if the individual who now is incapacitated has,
in fact, designated, as an example, in a power of attorney that
he would want or she would want----
Ms. Norton. Well, that is out of the court's hands then.
Let's talk about where the court has to decide whether it
is a person who is a family friend; you know, there is no
indication in a will, there is no indication by a document, and
somebody has to decide whether it is going to be a friend who
has been close over the years, or whether it is going to be a
relative, or whether it is going to be a lawyer.
Mr. Curtin. It is not an uncommon thing in the superior
court for the judge to designate a family friend or a family
member to be guardian of the person and then appoint a lawyer
to be guardian of the property, having a different role. The
guardian of property would be managing the money. The guardian
of the person would, in fact, make the personal health
decisions for that individual.
And the judges I have seen have struggled with that issue
and dealt with it in that way, so that there is some reasonable
assurance that the money would be handled properly, but the
medical decisions and the personal decisions for the
incapacitated ward would be made by a family member or close
personal friend. And that is the best of both worlds.
Ms. Norton. So you think that might be the best
combination?
Mr. Curtin. Yes, I do.
Ms. Norton. Do the rest of you agree?
Mr. Ward. We should also consider the way this gets to the
court. The Intervention Act considered an adversarial
proceeding where we have the zealous advocate representing the
subject who is supposed to respond to the petition and
represent the interests of the putative ward. If this is done
properly, if there is a problem about the person who is seeking
to become the guardian, that is usually ferreted out.
Typically we have a situation in this area where we have
multiple siblings, only one or two of whom are here, and the
others are in California, so one of them gets the fiduciary
appointment. Then the mother dies, and the one from California
comes back and says, where is my inheritance? So in the process
of getting these people appointed, and if it is done properly,
the court will take a neutral person if the family is feuding,
but if it is not, and the counsel for the subject doesn't see
the problem, then doing it as Mr. Curtin suggested is a very
logical way to do it.
Mr. Hall. You know, from a perception point of view, I have
to point out that the Washington Post observed that the
determination that the court takes to appoint a guardian or a
conservator takes around 10 minutes. To the public--that may
seem an inadequate amount of time for a court to make an
important determination as to the nature of a person's life.
But when it comes to the question of whether the person
appointed should be counsel or family member, I have seen it
work, in my experience, in both ways, if the person is able and
gives attention to the issue. And it could very well be a
family member who has the background and the education to
understand what has to be done, and they do it in a
conscientious manner.
Ms. Norton. Well, thank you, Mr. Hall. This notion about
the 10 minutes in the Washington Post the court takes strong
exception to, because it indicated to our staff that there may
be such cases, but that nobody can know how much each takes.
But that many hearings require less time. I don't know
enough about this area of the law to know whether or not there
are some things that can be disposed of that easily or not. Do
any of you have any feel on that?
Mr. Curtin. Your Honor, I would say that I am sure the
Washington Post reporters that wrote that sat in the courtroom
and saw one hearing take 10 minutes. I have been in that
courtroom on numerous and diverse occasions where a
conservatorship hearing or guardianship hearing would take
three-quarters of a day. It would take parts of 2 days. But I
have no doubt that they did witness one or two or maybe a dozen
hearings where it took 10 minutes.
Ms. Norton. It could be the lawyer who is a relative, for
example, you know. So I don't assign anything to anecdotal
evidence. I am far too statistical.
Ms. Dahlman. I can tell you that it is not uncommon. It is
not uncommon. Many of my hearings are very short.
Ms. Norton. Well, you think that the cursory--the time of
the hearing is of no concern to me. I would have to know all of
the background to know whether that was true.
Ms. Dahlman. If you have an examiner who has a visitor, you
don't--the court-appointed counsel, the guardian ad litem,
there is a clear case of incapacity.
As Mr. Curtin said, on the other hand, especially if you
are dealing--that is when you are dealing with dementia,
Alzheimer's and situations like that. When you are dealing with
mental illness, it takes on another----
Chairman Tom Davis. Let my ask this. I guess my question,
the followup to that is have you watched courtroom proceedings
where it has taken 10 minutes and it probably should have taken
a lot longer? That is the point.
Mr. Ward. Well, these articles were written before the
court of appeals decided the Orshanky case in which the court
of appeals admonished the superior court that if the statute
says the subject is supposed to be present at the hearing, and
unless there is a good reason not to--routinely the counsels
waived the presence of the subjects at the hearing. There were
a lot of procedural steps that--where the court was taking
shortcuts where the court of appeals said you shouldn't do
that. So I think that the hearings now would take a little bit
longer than at the time those articles were written.
Ms. Norton. It is an important point to make.
Mr. Chairman, I have only one more question, and that is: I
was concerned, Ms. Ashby, part of your report, page 14,
procedural impediments to adoption. This committee has put
considerable interest on priority on adoption, the need to
complete administrative requirements associated with placing
children with adopted families in locations other than the
District. That is something we heard about CSFA some time ago,
insufficient guardian or adoption subsidies. Is this a District
government problem----
Ms. Ashby. Well, it is----
Ms. Norton [continuing]. Or a CSFA problem?
Ms. Ashby. It is a national problem, certainly not unique.
Ms. Norton. But you said administrative requirements. I am
concerned about administrative----
Ms. Ashby. The difficulties with interjurisdictional
agreements involving----
Ms. Norton. But then there was a new agreement.
Ms. Ashby. There was an agreement with Maryland. I don't
know the specifics of it, but, as I understand, there was some
difficulty with that. I also understand that the effort--
current effort is to place children within the District of
Columbia as opposed to Maryland or Virginia, and I again don't
know what is behind that. We are currently doing work under the
appropriation--the 2004 D.C. Appropriation Act, a mandated
study, looking at CFSA, and part of what we are doing is
looking at its recruitment and retention of adoptive and foster
care homes. So we are in the process of getting more data on
that.
The procedural difficulties have to do with the
difficulties with interjurisdictional agreements, and at the
essence of that are the home studies that are required, and
which jurisdictions is the home study done in, who does it? Is
the home study done by one jurisdiction accepted by another,
and so forth? These are national issues.
I forgot the second part of it.
Ms. Norton. You've answered my question, if you are doing a
study of the interjurisdictional agreements. And I would hope
that study will include why--I don't care where these children
are placed, frankly. I think they have to be placed in the best
home.
I think today you are probably less likely to find that
best home in the District of Columbia. We have lost so many
people. We have a disproportionate number of very poor people.
So I would be interested in any preference as to where the
child is placed as opposed to the best placement for the child.
And with that, Mr. Chairman, that is my last question.
Chairman Tom Davis. You have been a very patient panel. You
have been a very good panel. We very much appreciate your
testimony. Your entire testimony is part of the record.
Anything anybody want to add after all of this that maybe
you didn't get in?
Ms. Ashby. I failed to actually answer one of your
questions. You asked what else the family court could do in
terms of increasing permanency. I will just briefly cite
several things that we did cover in our statement.
One has to do, of course, with the availability of
substance abuse treatment--and that has been talked about--and
other services that families need in order to bring about
reunification. That is not something that the court can do per
se, but it is something that needs to be done in order to allow
for faster permanency determinations.
Also, with respect to the court, we have been told by
judges that additional support staff are needed to help with
the processing of cases and entering information into the
computer system and so forth. The court is looking into its
human capital needs and has not made a determination whether it
is true or not at this point.
The computer system that is supposed to allow the court to
communicate with other agencies within the District that
influence the safety and well-being of children, it is an
ongoing effort. There has been progress, particularly between
the court and CFSA, and the court and the Corporation Counsel,
but still there are other agencies that need to be brought on
board.
And I guess finally, this again is more CFSA than it is the
court, but there seems to be a shortage of social workers, and
there is high turnover among social workers, which makes it
difficult if a social worker leaves and someone else takes over
the case, they don't necessarily know all that has happened
with that case.
We have reported in the past problems with the computer
system within CFSA and how not all information is recorded and
so forth.
So it is a number of things that need to be dealt with.
Some the court can control, some it can't. But the court, CFSA,
and other organizations within the District working together
should be able to improve things.
Ms. Norton. Mr. Chairman, Mr. Waxman has asked that a
written statement by admitted into the record.
Chairman Tom Davis. Without objection, so ordered.
Again, thank you very much for being here. Thank you for
your testimony. The committee stands adjourned.
[Whereupon, at 12:40 p.m., the committee was adjourned.]
[The prepared statement of Hon. Henry A. Waxman follows:]
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