Ethical Issues in the Family Drug Treatment Court

• Published date: 01 January 2013
• DOI: http://doi.org/10.1111/jfcj.12000
• Date: 01 January 2013
• Author: Leonard Edwards

Ethical Issues in the Family Drug

Treatment Court

By Judge Leonard Edwards (ret.)

Many juvenile dependency courts1have developed family drug treatment courts

(FCTCs)2to assist parents in their efforts to recover from substance abuse and related

problems.3These treatment courts have proved effective in helping parents recover from

substance abuse and reducing the time children stay in foster care.4However, FDTCs

differ from traditional criminal drug courts in several critical aspects. As a result, judges

presiding in FDTCs face unique ethical issues, some of which the literature has ignored.5

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?6Does a judge

who develops a special relationship with an FDTC client give the appearance that the

judge is partial toward that client?7This article will identify and discuss these and other

ethical issues facing juvenile court judges who are operating an FDTC.

1 These courts have different names in different states including abuse and neglect court, child

protection court, Children in Need of Services (CHINS), and Children in Need of Protection (CHIPS). In this

paper, the term juvenile dependency court will be used throughout.

2 Different names have been given to these courts including dependency drug treatment court,

family treatment court, and family wellness court. This paper will use family drug treatment court (FDTC)

throughout.

3See generally, Leonard Edwards & James Ray, Judicial Perspectives on Family Drug Treatment Courts,

56 Juvenile and Family Court Journal, Summer 2005, at 1-28.

4 S.D. Worcel et al., Family Drug Treatment Court Evaluation Final Report (NPC Research, 2007).

5 Judge Pach indicates that there may be problems with one judge hearing both the juvenile

dependency and family drug treatment court dockets, but does not explore possible violations of the canons of

judicial ethics. Nicolette Pach, An Overview of Operational Family Drug Treatment Courts,VIDrug Court

Review,I, 67-121 at 104; In Ethical Considerations for Judges and Attorneys in Drug Court, Freeman-Wilson,

Tuttle,and Weinstein mention the problem of ex parte communications, but have no discussion regarding the

unique ethical issues facing judges in family drug treatment courts. K. Freeman-Wilson,R.Tuttle,&S.

Weinstein,Ethical Considerations for Judges and Attorneys in Drug Court (National Drug

Court Institute, 2001), at 9–10.

6 ABA Model Code of Judicial Conduct, Canon 2, Rule 2.9 (refer to Scenario 2 in Section III below

and Appendix D).

7 ABA Model Code of Judicial Conduct, Canon 1, paragraph 5 (refer to Scenario 3 in Section III

below and Appendix D).

Judge Leonard Edwards, a retired Superior Court Judge in Santa Clara County, California, now

serves as a consultant at the Center for Families, Children & the Courts, a division of the California

Administrative Office of the Courts.

Author’s Note: Many thanks to Mark Jacobson, Phil Breitenbucher, Judge Nicolette M. Pach (ret.),

and the staff at the Children and Family Futures for their assistance in the research for this article.

bs_bs_banner

Juvenile and Family Court Journal 64, no. 1 (Winter) 1

© 2013 National Council of Juvenile and Family Court Judges

This article will begin by discussing the nature of FDTCs, including how these courts

interact with the juvenile dependency court and how they differ from other types of drug

courts. In the second section, the article will address the legal and ethical framework in

which all judges work. The third section will present a number of hypothetical scenarios

that judges presiding in FDTCs encounter. The discussion relating to each scenario will

include ethical issues facing the judge and recommendations that will permit the judge to

continue to participate in an FDTC without violating ethical rules and the law.The article

will conclude that FDTCs provide a valuable process for supporting parents in their

rehabilitation and children’s safe reunification with their families, but that careful

planning is necessary so that these courts can be conducted ethically.

I. FAMILY DRUG TREATMENT COURTS (FDTC)

An FDTC is a specialized calendar or docket that offers substance-abusing parents

in the juvenile dependency court an opportunity to focus upon their recovery. FDTCs are

an example of problem-solving courts that have been sweeping the country over the past

decade.8Others include criminal drug courts, mental health courts, juvenile drug courts,

homeless courts, re-entry courts, gun courts, and veterans’ courts.9Parental substance

abuse is the foremost presenting problem that results in child abuse and neglect pro-

ceedings in the juvenile dependency court,10 but it is often accompanied by other

problems including domestic violence, poverty, and mental health issues.

FDTCs share many similarities with other problem-solving courts. They enable the

judge, professionals, and service providers to work together with parents whose children

are the subjects of state-initiated child protection proceedings. These courts are charac-

terized by the participation of a team of professionals who work collaboratively with each

other and with the court to develop an individualized plan for each client. The team

closely monitors the client’s progress, and the client meets weekly or bi-weekly with the

judge and team members in a courtroom setting to discuss problems, review progress,

and receive guidance and inspiration in order to succeed.11

Several studies have evaluated FDTCs. The studies reveal that the FDTC results in

more treatment for parents, more family reunification outcomes, fewer terminations of

8 These are also called collaborative courts and therapeutic courts. This article will refer to them as

problem-solving courts.

9 Peggy Hora, Courting New Solutions Using Problem-Solving Justice: Key Components, Guiding Principles,

Strategies, Responses, Models, Approaches, Blueprints and Tool Kits,2Chapman Journal of Criminal Justice,

No. 1, 2011, at 7-52, 7.

10 “. . . a large percentage of parents who abuse, neglect, or abandon their children have drug and

alcohol problems. . . . Although national data are incomplete, it is estimated that substance abuse is a factor

in three-fourths of all foster care placements.” National Conference of State Legislatures, Linking Child

Welfare and Substance Abuse Treatment: A Guide for Legislatures (2000); Laura Feig, Drug Exposed Infants and

Children: Service Needs and Policy Questions (U.S. Department of Health and Human Services, 1990); Kelly

Kelleher et al., Alcohol and Drug Disorders Among Physically Abusive and Neglectful Parents in a Community Based

Sample,84 American Journal of Public Health, at 1586, 1588; Jose Ashford, TreatingSubstance-Abusing

Parents: A Study of the Pima County Family Drug Court Approach,55 Juvenile and Family Court Journal,

Fall 2004, at 27-37, 28.

11 Edwards & Ray, op.cit.,note3at1.

2 | JUVENILE AND FAMILY COURT JOURNAL / Winter 2013