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Ethical Issues in the Family Drug Treatment Court

Judge Leonard EdwardsJudge Leonard Edwards (ret.), Superior Court Judge, Santa Clara County, CA

Summary: The author advises that ethical problems can arise based upon the role of the judge and the unique nature of the hearings.


Many juvenile dependency courts have developed family drug treatment courts (FDTC) to assist parents in their efforts to recover from substance abuse and related problems. Judges presiding in FDTC face unique ethical issues, some of which have been ignored in the literature. In particular, does a judge violate the ethical prohibition against ex parte communications when presiding over an FDTC in the non-participating parent’s absence? The article will conclude that careful planning is necessary so that these courts can be conducted ethically.

Ethical Framework

Ethical guidelines govern a judge’s conduct both on and off the bench. Everyone knows that judges must follow the law, but outside of the legal world, few understand that judges are also bound by ethical rules. Ethical rules for judges have been adopted by all state supreme courts or state legislatures in one form or another and are the law in each state.

Hypothetical Fact Situation

Several FDTC models operate in the United States, the integrated and parallel models being the most popular. In an integrated FDTC the same judge hears the juvenile dependency docket and the FDTC. In the parallel FDTC model, one judge hears the juvenile dependency docket and a different judge hears the FDTC.

Scenario       

You preside over an integrated court, hearing both the juvenile dependency court and the FDTC. You are hearing a contested permanency planning review in the juvenile dependency court, and one of the parents (the mother) is a participant in the FDTC. You wonder whether you need to disclose your involvement with the mother to the other parent (the father), to the child, and to their attorneys. If you decide to disclose, you wonder what you should say to them about the information you have learned from the FDTC court proceedings. You also wonder whether you should disqualify yourself.

Discussion

This scenario presents a problem that many FDTC encounter. No ethical guidelines have been forthcoming from the ABA, the National Association of Drug Court Professionals, or other national organizations regarding these issues.

In this scenario, one party to the juvenile dependency proceedings (the mother) regularly appears before you at the FDTC to discuss substance abuse recovery issues while the other party (the father) does not. Information about the mother’s progress is presented to you and the other FDTC team members, and you usually have a conversation with her about progress or lack of progress, often offering encouragement and praise.[1] On occasion, the mother’s relationship to the father may be discussed as well as other issues that may affect the mother’s recovery.

The hearings you have had in the FDTC are improper ex parte communications and a violation of Canon 2, Rule 2.9. You have had meetings and conversations with a party (the mother) in a “pending or impending proceeding” without the other parent (the father) being present. Nor is it likely that either the child or the child’s attorney was present. The information you have gained from those conversations may be relevant to the decisions you are making in the dependency proceeding.

In order to determine whether you can ethically preside over the dependency case, you must first decide whether you can still be fair to all parties.[2] If you cannot be fair, you must disqualify yourself. Should you conclude you can be fair to all parties, you may preside over the dependency case, but you must disclose your conversations in the FDTC to all parties to the juvenile dependency proceedings.[3] Your disclosure will be difficult because you may not remember all that you and other team members said in the FDTC.

There is an additional ethical issue. You have had ongoing judicial interaction with this FDTC participant.[4] This interaction probably has resulted in a more thorough understanding of the problems facing the FDTC client than you would learn in juvenile dependency proceedings. Your interactions with the FDTC client often involve praise for progress made toward recovery from substance abuse addiction. The relationship you develop with the client may give others the impression that you have developed a relationship that will make it difficult for you to be impartial when hearing a case involving that client. Canon 2.11 is relevant to your decision:

A judge shall disqualify himself or herself in any proceedings in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of the facts that are in dispute.” [5]

Several procedures could be employed to address the ethical problems raised in this scenario. First, you could ask the other parent and parties to consent or stipulate that the first parent can participate in the FDTC and waive any objection to ex parte communications that take place in the FDTC. You could also permit the second parent’s attorney and the attorneys for other parties attend all FDTC hearings where the first parent appears. In the alternative, a second judge could hear all FDTC cases. Several courts around the country have adopted this procedure where a different judge hears all FDTC matters instead of the dependency judge.

By paying attention to the issues raised in this paper, the judge will enable FDTC to continue to provide an environment for increased parental rehabilitation without ethical violations.



Editor's Note:
For a full review of the issue of judicial ethics relating to FDTC, see "Ethical Issues in the Family Drug Treatment Court" by Judge Leonard Edwards (ret.) published in Volume 64, no.1, Winter 2013 issue of the National Council of Juvenile and Family Court Judges' publication Juvenile and Family Court Journal.

References:

[1] This encouragement in itself is not a violation of the Model Code of Judicial Conduct. The Code does not require disengagement – rather it requires impartiality. The judge is permitted to show concern about progress or lack of progress made by a client, so long as the judge displays the same quality of engagement and concern to every drug court participant. 

[2] Canon 2, Rule 2.11 (refer to Appendix D for the full text)

[3] Rule 2.11, commentary. The California Judges Association Ethics Committee has opined that :A juvenile judge handling a Family Wellness Court cannot participate in informal review hearings or staffing hearings in which only some of the parties and attorneys participate unless all of the parties agree to the ex parte communications with knowledge as to how the information will be used by the judge at future hearings.” “Judicial Ethics Update,” California Judges Association, Sacramento, CA, November 2012, at p. 3. 

[4] This interaction is consistent with component #7 of the Drug Court Key Components. “Defining Drug Courts: The Key Components,” The National Association of Drug Court Professionals, Drug Court Standards Committee, found in Appendix A of this article.

[5]Canon 2, Rule 2.11(A)(1). See also Canon 1, paragraph 5.  

 

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