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«Fordham Law Review Volume 64 | Issue 4 Article 31 To Assert Children's Legal Rights or Promote Children's Needs: How To Attain Both Goals Daniella ...»

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Fordham Law Review

Volume 64 | Issue 4 Article 31

To Assert Children's Legal Rights or Promote

Children's Needs: How To Attain Both Goals

Daniella Levine

Recommended Citation

Daniella Levine, To Assert Children's Legal Rights or Promote Children's Needs: How To Attain Both Goals, 64 Fordham L. Rev. 2023

(1996).

Available at: http://ir.lawnet.fordham.edu/flr/vol64/iss4/31 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu.

TO ASSERT CHILDREN'S LEGAL RIGHTS OR

PROMOTE CHILDREN'S NEEDS: HOW TO

ATTAIN BOTH GOALS

Daniella Levine*

INTRODUCTION

CHILDREN have rights, human and legal, although the extent of most of these rights has not yet been clearly enunciated by our courts and legislators. The appointment of independent representatives to speak on behalf of the child in legal proceedings that affect their interests is one such right. This right is constitutionally guaranteed for those children subject to incarceration. 1 In other areas, such as child protection, termination of parental rights, or divorce/custody proceedings, some state laws provide for child representation. 2 Yet the scope of and standards for this representation, including whether the representative must be an attorney, have been left largely to the discretion of individual judges. Furthermore, few state courts or legislatures have provided substantial guidance to the attorneys or lay persons appointed to represent such children.

Child advocates and public policy specialists are eager to resolve these representation dilemmas and establish meaningful standards.

Unfortunately, cogent standards for representation of children cannot be developed until we undertake a thorough qualitative evaluation and cost-benefit analysis of the many existing and potential models for representation. If child advocates fight for appointment of paid attorneys for children in all cases, without a careful consideration of the benefits of that representation and without review of more cost-effective models for representation, empty promises for our children may result: more attorneys, less effective advocacy, and less funding for * Adjunct Professor Barry University School of Social Work, Adjunct Professor University of Miami School of Law, Coordinator Academy for Better Communities, Consulting Attorney Florida Foster Care Review Board, Inc.; B.A., 1977 Yale University; J.D., 1983 Columbia University School of Law; M.S.W. Columbia University Schoolof Social Work. The author would like to thank Sharon Abrams, Lila Hubert, Esq., Joni Goodman, L.C.S.W., and Helen Stone, Esq. of the Eleventh Circuit Guardian Ad Litem Program for their assistance with this article.

1. In re Gault, 387 U.S. 1 (1967).

2. For example, Florida law provides for the appointment of a lay guardian ad litem in all the above referenced proceedings. See generally, H. Lila Hubert, Comment, In the Child'sBest Interests: The Role of the GuardianAd Litem in Termination of ParentalRights Proceedings, 49 U. Miami L. Rev. 531 (1994).

3. Rebecca H. Heartz, GuardiansAd Litem in Child Abuse and Neglect Proceedings: Clarifring the Roles to Improve Effectiveness, 27 Fam. L.Q. 327, 332 (1993);

Donald N. Duquette & Sarah H. Ramsey, Representationof Children in ChildAbuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 J.L. Reform 341, 348 (1987).

[Vol. 64 2024 FORDHAM LAW REVIEW services to address the underlying reasons why the child became involved with the legal system.

Participants in the Fordham University School of Law Conference on the Ethical Issues in the Legal Representation of Children acknowledged that all children in child abuse and neglect proceedings are entitled to representation. 4 A distinguished and expert group of child advocates (predominantly attorneys) came together at the Conference to examine ethical issues in the "legal representation" of children. After significant deliberation, the Conference participants adopted a resolution that the child's representative in child abuse and neglect proceedings should always be an attorney.5 They further resolved that the attorney's ethical obligation to the client requires her to serve in the traditional attorney-client role, rather than in the "guardian ad litem" role, to the extent that the client is "competent" to direct the representation. The child's attorney should then determine, with input from others who have knowledge of the child, the child is competent, to what extent, and for what whether 6 purposes.

Participants devoted significant study and debate to these issues, resulting in the endorsement of several recommendations pertaining to the manner in which attorneys and judges should determine a child's competency and determine standards for the representation of the impaired and unimpaired child client.7 This discussion, though valuable, did not solve the issues in my view. Further study is necessary to determine who would be best suited to judge the child's competency, and, once resolved, who should be empowered to substitute his or her judgement for that of the impaired child8 The Conference also did not examine whether advocacy for the competent child's wishes truly leads to best outcomes for children. This Response will not address either of these issues.





This Response seeks to reexamine the underlying premises of the Conference and to explore whether addressing some fundamental questions could enhance understanding of the above issues. Specifically, the question of who should represent the child in child welfare proceedings-an attorney, lay advocate or other professional, or some combination thereof-requires further consideration. 9

4. This view is widely held and is codified in the federal law. Duquette & Ramsey, supra note 3, at 346-47.

5. Recommendations of the Conference on EthicalIssues in the Legal Representation of Children, 64 Fordham L. Rev. 1301, 1320-23 (1996).

6. Id. at 1312-14.

7. Id.

8. Children are often competent to direct their own representation. Even when children are competent, however, this does not dictate that lawyers alone are best suited to represent them.

9. Duquette & Ramsey, supra note 3, at 349-50.

1996] CHILDREN'S RIGHTS AND NEEDS Several studies have examined different models for representation of children in child abuse and neglect proceedings. These studies suggest that the combination of lay and attorney representation for children results in more effective advocacy than the appointment of either one in isolation. Personal experience leads me to agree that such mixed or hybrid models for child representation more frequently yield swift, thorough, satisfactory results for children who might otherwise languish in the child welfare system. We need to conduct additional studies to explore further each model, define relationships among attorneys and lay advocates, and examine client outcomes. After such a review, access to attorneys for children in all cases may prove to be unrealistic (too expensive) and ineffective (not assuring quality).

This Response also acknowledges that all children who are the subject of abuse or neglect proceedings should receive independent representation. The federal Child Abuse and Neglect Prevention and Treatment Act of 1974 ("CAPTA") imposes this requirement on states receiving federal funds under the Act. 1 All fifty states have accepted funds under the Act and have enacted some scheme for providing such representation, although in eight states appointment of a guardian ad litem is within the discretion of the states." I will outline some of the models currently in existence, provide some preliminary information about their effectiveness, and suggest specific areas for further study. Finally, I will provide support for my view that the combination of lay and legal representation for children ensures the best quality at the most reasonable price.

I. HISTORY AND BACKGROUND OF NONATTORNEY

REPRESENTATION

The traditional representation for a child in child welfare proceedings has involved an attorney appointed to serve as guardian ad litem.

Courts have historically made such appointments pursuant to their inherent judicial powers. 2 Commencing in 1977 in Seattle, Washington, Judge David Soukoup began using volunteer citizens as lay guardians ad litem. This model came to be known as "Court Appointed Special Advocates," or CASA, and has quickly established itself as the fastest growing volunteer movement in the country. Several states have established statewide programs by statute, and the National Council of Juvenile and Family Court Judges has endorsed the model.' 3 As of 1995, approximately 700 volunteer programs (operating under various names: CASA, Guardian ad Litem or GAL, for

10. 42 U.S.C. §§ 5101-5107 (1988 & Supp. 1994).

11. Heartz, supra note 3, at 332.

12. Hubert, supra note 2, at 537.

13. Heartz, supra note 3, at 336-37.

2026 FORDHAM LAW REVIEW [Vol. 64 example) operate in fifty states, the District of Columbia and the U.S.

Virgin Islands. 4 In 1982, the National CASA Association ("NCASAA") was established "to promote, assist, and support the development, growth, and continuation of quality CASA programs."' 5 The federal government has provided funding for the Association, and used it to channel funds to local GAL and CASA organizations throughout the country. Association member-organizations must adhere to NCASAA standards for recruitment, training, and quality representation as prerequisites for receipt of federal grants. In addition, the NCASAA has developed extensive support and technical assistance components for member organizations, including a standardized training curriculum, along with quality publications and conferences. 6 A small number of jurisdictions rely on social workers, probation officers, or court counselors to represent children by statute.' I will refer to such statutory schemes as multidisciplinary models of representation for children.

I. STUDIEs WHICH EXAMINE LAY MODELS AND ATTORNEY

MODELS FOR REPRESENTATION OF CHILDREN IN CHILD

WELFARE PROCEEDINGS

CASA'8 and GAL programs coexist with various models for lawyer participation on behalf of children in child welfare cases. The 1993 Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian Ad Litem summarizes and evaluates several models. The 1988 reauthorization of CAPTA mandated and funded this report ("CSR Report").2 ° The report grouped the models as follows: (1) the private attorney model, in which the court appoints an attorney in private practice to represent each child, with compensation by the court; (2) the staff attorney model, in which each county employs a staff of attorneys either directly or through contracts with law firms; and (3) the CASA model, in which the court or an independent CASA organization selects and trains lay volunteers. In practice, these models working side by side operate at cross-purposes on behalf of the child. The CSR Report provides some useful analysis

14. Rebecca H. Heartz & Irene Cooke, CASA Volunteers andAttorneys: A Partnership That Works, 1, 10 (Sept. 1995) (unpublished manuscript, on file with the National CASA Association).

15. Heartz, supra note 3, at 337 (quoting NCASAA Mission Statement).

16. Id. at 337.

17. Id. at 332.

18. Throughout this article, the generic term "CASA" denotes the lay volunteer serving in the capacity of representative or GAL for the child.

19. CSR, Inc., U.S. Dep't of Health & Human Services, Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian ad Litem (1993).

20. Pub. L. 100-294, 102 Stat. 102 (1988).

CHILDREN'S RIGHTS AND NEEDS

and suggests that combination models be explored further. Some analysis of these hybrid or "mixed" models has been completed and will be summarized in section IV.

The major conclusions of the CSR Report can be captured by stating the benefits and drawbacks of each model. Private attorneys, the most common child representative, lack adequate training and supervision. Staff attorneys receive more training and supervision, but typically possess less experience than private attorneys assigned to represent children. CASAs have the least experience on average but dedicate two and a half hours per week per case, compared to one hour per case for each of the other two models. In addition, CASAs receive significantly more supervision and support than both attorney models.2 ' An analysis of the major GAL roles22 reveals more qualitative information. The CSR Report found the CASA model to better meet the fact finder and investigator functions than the private or staff attorney models. For example, thirty per cent of private attorneys and 17.4% of staff attorneys have no contact with their clients, compared to only 8.9% of CASAs. A majority of CASAs visit family members, while only one third of attorneys do so. The Private Attorney Model, however, provides superior quality of legal representation overall, in that a higher percentage of these advocates attend court hearings than either staff attorneys or CASAs. On the other hand, CASAs are the 23 most likely to submit written reports at the required hearings.

CASAs, however, are least likely to take active steps as mediators and negotiators, 24 although such efforts succeed in the great majority of cases in reaching a resolution. As case monitors, the CASAs are ten times more likely to be actively involved than the attorneys in maintaining contact on matters other than specific hearing preparation.



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