Departments of Government
CHAPTER 90A. Office of the Child Advocate
The General Assembly hereby declares that the welfare of the children of this State shall be safeguarded by the establishment of an Office of the Child Advocate, with a Child Advocate who shall also serve as Executive Director of the Child Protection Accountability Commission. The Child Advocate shall be responsible for effectuating the purposes of the Commission. The Advocate shall also coordinate efforts on behalf of the children; work with advocacy groups; promote system reform; recommend changes in law, procedure and policy necessary to enhance the protection of Delaware’s children; and to implement and coordinate programs providing legal representation on behalf of a child, including the Court Appointed Special Advocate Program. In order to effectuate these goals, the Child Advocate shall be an attorney duly licensed to practice law in Delaware.72 Del. Laws, c. 167, § 2; 72 Del. Laws, c. 451, § 5; 80 Del. Laws, c. 417, § 3;
For the purposes of this chapter, unless the context indicates differently:
(1) “Abuse” or “abused child” is as defined in § 901 of Title 10.
(2) “Adult” means a person who has reached his or her eighteenth birthday;
(3) “Attorney” means an attorney authorized to practice law in the State, who is employed or contracted by the Office, or who volunteers for the Office, including Deputy Child Advocates and attorneys who work in conjunction with Court Appointed Special Advocate volunteers.
(4) “Best interests” as defined in § 722 of Title 13;
(5) “Child” or “children” means persons who have not reached their eighteenth birthday;
(6) “Child welfare proceeding” means any Family Court proceeding and subsequent appeal therefrom involving custody, visitation, guardianship, termination of parental rights, adoption and other related petitions that involve a dependent, neglected or abused child or a child at risk of same as determined by a Family Court Judge;
(7) “Commission” means the Child Protection Accountability Commission;
(8) “Court” means primarily the Family Court, but may mean any court of this State;
(9) “Court Appointed Special Advocate volunteer” or “CASA” means a volunteer authorized and appointed under § 9010A of this title, who is supervised by a coordinator and who works in conjunction with the child’s attorney to accomplish the duties set forth in § 9007A(c) of this title.
(10) “Department” means the Department of Services for Children, Youth and Their Families of the State;
(11) “Dependency” or “dependent child” is as defined in § 901 of Title 10.
(12) “Division” means the Division of Family Services of the Department of Services for Children, Youth and Their Families;
(13) “Investigation Coordinator” is as defined in § 902 of Title 16.
(14) “Neglect” or “neglected child” is as defined in § 901 of Title 10.
(15) “Office” means the Office of the Child Advocate.
(16) “Permanency“ means the safe, stable, custodial environment in which a child is raised and the life-long relationship that child establishes with a nurturing caregiver.72 Del. Laws, c. 167, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 451, § 6; 76 Del. Laws, c. 136, §§ 17-20; 80 Del. Laws, c. 219, § 2; 80 Del. Laws, c. 417, § 3;
The Child Advocate shall be appointed by the Executive Committee of the Child Protection Accountability Commission and shall serve at its pleasure.72 Del. Laws, c. 167, § 2;
The General Assembly may annually appropriate such sums as it may deem necessary for the payment of the salary of the Child Advocate, the assistants, and the staff, and for the payment of actual expenses incurred by the Office of Child Advocate.72 Del. Laws, c. 167, § 2;
The Child Advocate shall perform the following duties:
(1) Take all possible actions, including programs of public education and legislative advocacy, to secure and ensure the legal, civil, and special rights of the children.
(2) Review periodically relevant policies and procedures with a view toward the rights of children.
(3) Refer any person making a complaint or report required by Chapter 9 of Title 16 to the Division of Family Services, and, if warranted, to an appropriate police agency. If a complaint or report includes an allegation of misconduct against a Department employee, the complaint or report must also be referred to the Secretary of the Department.
(4) Recommend changes in the procedures for investigating and overseeing the welfare of children.
(5) Make the public aware of the services of the Office and the Commission, its purpose, and how it can be contacted.
(6) Apply for and accept grants, gifts, and bequests of funds from other state, federal, and interstate agencies, as well as from private firms, individuals, and foundations, for the purpose of carrying out the Office’s and the Commission’s lawful responsibilities. The funds must be deposited with the State Treasurer in a restricted receipt account established to permit funds to be expended in accordance with the provision of the grant, gift, or bequest.
(7) Examine policies and procedures and evaluate the effectiveness of the child protection system, specifically the respective roles of the Division, the Attorney General’s Office, the courts, the medical community, and law-enforcement agencies.
(8) Review and make recommendations concerning investigative procedures and emergency responses pursuant to this chapter.
(9) Develop and provide quality training to Division staff, Deputy Attorneys General, law-enforcement officers, the medical community, family court personnel, Court Appointed Special Advocate volunteers, educators, day care providers, and others on the various standards, criteria, and investigative technology used in these cases.
(10) Develop and administer programs to ensure the legal representation of children in this State, which includes the Court Appointed Special Advocate Program.
(11) Submit an annual report analyzing the work of the Office that may be included in the Commission’s annual report, or submitted separately.
(12) Serve as the Executive Director of the Commission.
(13) Provide staff support to the Commission, including assisting the Commission, its committees, and panels in investigating and reviewing the deaths or near deaths of abused or neglected children.
(14) Hire employees or contract for services as necessary to assist the Commission, its committees, and panels in investigating and reviewing the deaths or near deaths of abused or neglected children and performing its other duties under subchapter III, Chapter 9 of Title 16, within the limitations of funds appropriated by the General Assembly or obtained from other sources.
(15) Hire the Investigation Coordinator and staff to assist the Investigation Coordinator in accomplishing the duties assigned in § 906 of Title 16, including contracts for services as necessary to accomplish its goals.
(16) Take whatever other actions are necessary to help the Commission accomplish its goals.72 Del. Laws, c. 167, § 2; 80 Del. Laws, c. 187, § 15; 80 Del. Laws, c. 219, § 2; 80 Del. Laws, c. 417, § 3; 81 Del. Laws, c. 143, § 6;
(1) All records of the Office pertaining to the care and treatment of a child are confidential, including the identity of any person seeking assistance from the Office on behalf of a child. Information contained in those records may not be disclosed, except for good cause shown on order of a court, or if, in the judgment of the Commission, disclosure of identifying information to an appropriate governmental agency is in the best interests of the child.
(2) Anyone participating in good faith in seeking assistance from the Office on behalf of a child pursuant to this chapter shall have immunity from liability, civil or criminal, that might otherwise exist, and such immunity shall extend to participation in any judicial proceeding resulting from such a referral.
(3) All information and records received, prepared or maintained by the Office pertaining to the duties of the Investigation Coordinator and its staff are confidential as set forth in § 906 of Title 16. All information and records received, prepared, or maintained pertaining to the duties of the Investigation Coordinator, as well as all access provided to obtain such records, shall not be used to perform any other duties of the Office unless otherwise permitted by law.
(4) All information and records received, prepared, or maintained by the Office pertaining to the investigation and review of child abuse or neglect deaths or near deaths are confidential as set forth in § 934 of Title 16. All information and records received, prepared, or maintained pertaining to these duties may not be used to perform any other duties of the Office unless otherwise permitted by law.72 Del. Laws, c. 167, § 2; 72 Del. Laws, c. 451, §§ 7, 8; 80 Del. Laws, c. 219, § 2; 80 Del. Laws, c. 417, § 3; 81 Del. Laws, c. 143, § 7;
(a) Purpose. — (1) The General Assembly has recognized the need to safeguard the welfare of abused, neglected and dependent children in this State. As such, it has charged the Office of the Child Advocate with ensuring legal representation in child welfare proceedings. To this end, the Office shall coordinate with the Family Court to implement and administer a program for representation of children. The Office may assist the other courts of this State as needed to coordinate legal representation of children.
(2) In determining whether to represent an abused, neglected or dependent child, or a child at risk of same, the Office may communicate with any child at issue and may have access to all information relating to that child and child’s family held or maintained by the Department or the Family Court.
(3) This section shall be liberally construed so that these purposes may be realized.
(b) Appointment. — (1) In the event that the court determines that a child is in DSCYF Custody pursuant to Chapter 25 of Title 13, the court shall sign an order appointing an attorney to represent the child. If a child is otherwise in need of legal representation in a child welfare proceeding, the Office may file a motion with the court requesting appointment, which shall be granted if the court determines it is in the best interests of the child. The court may also issue an order appointing an attorney sua sponte under this statute subject to the resources of the Office. That order shall impose all the duties, rights and responsibilities set forth in this section. Upon request from the Office or any party, the court may also appoint a Court Appointed Special Advocate volunteer to work in conjunction with the child’s attorney to accomplish the duties set forth in subsection (c) of this section. Upon entry of the order, the attorney and Court Appointed Special Advocate volunteer, if one is appointed, shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child’s life circumstances.
(2) The appointment shall last until the attorney or Court Appointed Special Advocate volunteer is released from responsibility by order of the court, or until his or her commitment to the court ends.
(3) Upon appointment of an attorney, the child shall be a party to any child welfare proceeding in which the child is the subject, and shall possess all the procedural and substantive rights of a party including those set forth in § 732 of Title 13.
(4) Upon presentation of the order of appointment, any agency, hospital, school, organization, division or department of the State, doctor, nurse or other health-care provider, treatment facility, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney or Court Appointed Special Advocate volunteer to inspect and copy any records relating to the child and parents, and guardian or petitioner where the court deems appropriate, involved in the case of appointment without consent of the child, parents, guardian or petitioner. Release of mental health and substance use records shall comply with applicable federal law requiring consent or a court order.
(c) Duties and rights. — The attorney’s duty is to the child. The scope of the representation of the child is the child’s best interests. The attorney and the Court Appointed Special Advocate volunteer, in addition to other Office employees, contractors and volunteers shall have the duty of confidentiality to the child unless disclosure is necessary to protect the child. As such, the attorney or Court Appointed Special Advocate volunteer shall:
(1) Represent the best interests of the child in all child welfare proceedings, and explain to the child, taking into account the child’s ability to understand the proceedings, the duties of the attorney, the role of the Court Appointed Special Advocate volunteer, and the rights of the child set forth in § 2522 of Title 13, if the child is in DSCYF custody;
(2) Be trained by the Office of the Child Advocate or a course approved by the Office prior to representing any child before the court. The attorney or Court Appointed Special Advocate volunteer shall be required to participate in ongoing multidisciplinary training regarding child welfare.
(3) Be employed, contracted or an approved volunteer with the Office and shall be appointed by the court;
(4) Conduct an independent investigation of the circumstances of a case of appointment, which shall include but not be limited to interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records and reports;
(5) Present evidence to the court in support of his or her position;
(6) Be provided with notice of every court proceeding and receive copies of every pleading;
(7) Participate in all depositions, negotiations, discovery, pretrial conferences, hearings and appeals;
(8) Have access to all records regarding the child and his or her family maintained by the Department;
(9) Monitor cases to which he or she is appointed to assure that the terms of the court’s orders are fulfilled and permanency for the child is achieved through reunification, adoption, permanent guardianship, guardianship, placement with a fit and willing relative, or alternatively, by another planned permanent living arrangement so long as the child is at least 16 years of age;
(10) Receive reasonable notice from the Division of changes in placement, school or any other change of circumstances affecting the child;
(11) Receive reasonable notice from the Division of any founded complaint involving:
a. The child, where the child is the alleged victim;
b. The residence in which the child lives; and/or
c. The home-based daycare which the child attends;
(12) Request a hearing before the court when the plan on behalf of the child is not implemented, is not meeting the child’s needs, or upon completion of a Division investigation;
(13) Request any appropriate relief from the court on behalf of the child;
(14) Appear, when appropriate, on behalf of a child before the Violent Crimes Compensation Board, to pursue a claim on behalf of the child, as set forth in Chapter 90 of Title 11; and
(15) Ascertain the wishes of the child, give appropriate weight to the child’s wishes understanding his or her age and emotional development, and make the child’s wishes known to the court. If the attorney concludes that the child’s wishes conflict with his or her position or the position of the Court Appointed Special Advocate volunteer, if one is appointed, he or she will make the child’s wishes known to the court, and notify the court of the conflict so the court can determine if a conflict exists. If the court determines a conflict exists, the court shall determine how to remedy the conflict such that the child’s best interests and wishes are represented.
(d) Criminal investigations and/or prosecutions. Notwithstanding any provision of this chapter to the contrary, the Office of the Child Advocate shall in no way intervene in any pending criminal investigation or prosecution, and shall provide no legal representation or advice to any suspect, defendant or respondent in any open criminal investigation or prosecution.72 Del. Laws, c. 167, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 451, § 9; 73 Del. Laws, c. 277, §§ 1-4, 6; 80 Del. Laws, c. 417, § 3;
No attorney, director, investigator, social worker or other person employed or contracted by or volunteering for the Office of Child Advocate shall be subject to suit directly, derivatively or by way of contribution or indemnification for any civil damages under the laws of Delaware resulting from any act or omission performed during or in connection with the discharge of his or her duties with the Office within the scope of his or her employment or appointment, unless the act or omission was done with gross or wanton negligence, or maliciously, or in bad faith.72 Del. Laws, c. 167, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 451, § 10; 73 Del. Laws, c. 277, § 5;
Notwithstanding any provision in this chapter to the contrary, the Office of the Child Advocate is authorized to provide representation under this chapter to youth for whom jurisdiction has been extended under § 929 of Title 10.77 Del. Laws, c. 385, § 3;
The Court Appointed Special Advocate Program shall provide legal representation to children through the Office of the Child Advocate, and shall be administered as follows:
(1) The Program shall include volunteers who have demonstrated an interest in children and their welfare and have participated in background checks, interviews and training courses conducted by the Office to determine his or her fitness to serve. Volunteers will serve at the pleasure of the Child Advocate, but may also be removed by court order. Volunteers shall participate in ongoing training as determined by the Office. Volunteers will be sworn in by the court upon completion of all requirements and shall not serve as a volunteer prior to being sworn.
(2) Volunteers shall be supervised by coordinators and a Program Director employed by the Office of the Child Advocate.
(3) The Child Advocate will establish the number, qualifications and responsibilities of the coordinators and the Program Director. The Program Director and coordinators shall be exempt from Chapter 59 of Title 29, and notwithstanding any provision of this Code to the contrary, the Program Director and coordinator positions shall not be covered by Chapter 13 of Title 19 and shall have no rights thereunder.
(4) Attorneys shall be hired or contracted by the Child Advocate to provide legal representation to children appointed under this section. Volunteers and coordinators will work in conjunction with the child’s attorney to accomplish the duties set forth in § 9007A(c) of this title.
(5) The CASA shall be a party to any child welfare proceeding or any other proceeding in which the court has appointed the CASA.80 Del. Laws, c. 417, § 3; 70 Del. Laws, c. 186, § 1;