Family Defense and the Disappearing Problem-Solving Court

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons goals with the family; and (3) frequent and meaningful court appearances by relevant parties. This team model has, at various times and in various FCTPs, challenged the attorneys for the parents (and sometimes the child) in fulfilling several of their ethical responsibilities to their clients, including preserving confidentiality, maintaining client-centered advocacy, and protecting due process rights. In the last decade, New York City has embraced multi-disciplinary, institutional family defense practice by contracting with institutional providers to represent the vast majority of parents in child welfare proceedings. The ability of these practitioners to improve the process and outcomes for families has begun to be proven and felt. Vigorous, sustained advocacy has challenged previous court practices that often failed to protect the procedural and substantive due process rights of parents and permitted often-unfettered judicial discretion. Social work staff employed by these family defense offices have proven just as adept at assisting parents in finding and sustaining treatment as staff employed by the FCTPs. The development of this advocacy also challenges the problem-solving approach to resolving family concerns that characterizes the court in general but especially in the FCTPs that have incorporated a new generation of problem-solving court practices