text:
QIC Model & Six Core Skills
QIC-ChildRep Best Practice Model
Six Core Skills
Research & Policy Rec
Analysis of QIC
Flint Multidisciplinary Study
Profile of Lawyers
Lawyer Activities
Literature & Model Acts
Academic Literature
Evaluations of Child Representation
Model Acts & Standards
Project Timeline & Developments
2010 Literature Review
Review of State Laws
Discussions with Stakeholders
Survey of Statewide Reports
Notable Offices
Review of Existing Evaluations
Gaps in Research
QIC-ChildRep Products
Demonstration Projects
QIC ChildRep Best Practice Model
Evaluation Sites
Evaluation Research Design
Evaluation Findings
The Flint MDT Study
Published Literature on Child Representation
The QIC compiled the legal, social and international literature regarding child representation to the end of 2015. This list is searchable. The abstracts generally contain links to the full articles.
Date Citation
2015 David Pimentel, Fearing the Bogeyman: How the Legal System's Overreaction to Perceived Danger Threatens Families
and Children, 42 Pepp. L. Rev. 235
The author describes the imagined threat of stranger abduction compared to the recent emergence of "Free-Range" parenting. The author finds that federal and state statutes give child protective agencies broad power to intervene in families and incentivize removal as a remedy even when it is unclear whether the child is endangered. Finally, the author recommends that federal and state statutes should be amended to allow parents more autonomy and force agencies to devote resources to keeping children safe within their own families.
2015 Frank Vandervort, Using Screening and Assessment Evidence of Trauma in Child Welfare Cases, ABA Child L. Practice
34, No. 5 (2015): 65, 70-6
The author explains why gathering and presenting evidence of a child client's trauma history to the court is a best practice for attorneys who represent children in child welfare cases. Through routine trauma screenings for children and parents who enter the child welfare system, attorneys can determine whether a client was exposed to one or more potentially traumatic experiences and use the results from a trauma screening to identify areas for evidence gathering, plan case strategy, and guide decision making. The author provides tips for lawyers to improve advocacy for both children and parents involved in dependency proceedings and includes a model case to deepen understanding.
2015 Michael E. Lamb et al., Children and the Law, in HANDBOOK OF CHILD PSYCHOLOGY AND DEVELOPMENTAL
SCIENCE, 12, 1-49 (Richard M. Lerner ed., 2015)
The authors discuss the developmental factors that affect children's participation in legal proceedings as victims, witnesses, suspects, and affected parties. Because knowledge of child development has been applied unevenly across legal concepts, the authors then show how applied psychological research can help inform legal practice, and vice versa. Areas of psychological research covered in the article include children's development of memory and normative developmental processes for children.
2015 Tara G. Garlinghouse & Scott Trowbridge, Child Well-Being in Context, 18 U. Pa. J.L. & Soc. Change 105 (2015
The authors explore how the well-being of the child fits into the legal context of a dependency proceedings, alongside achieving safety and permanency. The article focuses on how to define well-being and whether a child welfare agency has the authority to intervene solely due to well-being concerns. Finally, the authors discuss how well-being issues can be addressed through increasing levels of involvement of the child welfare system in a family's life, both voluntary and involuntary. The authors conclude that issues of well-being should not be the driving force in a case because while every child's well-being could improve, the cost of court intervention is too high for many children and their families.
2014 Suparna Malempati, Ethics, Advocacy, and the Child Client, 12 Cardozo Pub. L. Pol'y & Ethics J. 633
The author provides background on the history of child representation, the procedures and principles that govern dependency proceedings, and the ongoing debate about the role of counsel for children, including the standards promulgated by professional associations to address the representation of children in child welfare proceedings. The author then discusses the representation of a client with diminished capacity under the model rules, drawing parallels between the elder law and criminal defense to illustrate how lawyers can best advocate for children.
2014 Ariel Love, A Room of One's Own: Safe Placement for Transgender Youth in Foster Care, 89 N.Y.U. L. Rev. 2265
The author describes the dangers of physical violence that transgender youth face while in foster care and finds that administrators of child welfare services have shown deliberate indifference to the unique risks facing this population. The author argues that the current New York City foster care system violates the substantive due process safety rights of transgender youth in its care and proposes legislation that would mandate transgender-only bedrooms and bathrooms, providing these youth a safe space within existing foster care settings.
2014 Elizabeth Weyer, Respecting Uncustomary Family Traditions: Reforming the Role of Guardians Ad Litem,
17 J. Gender Race & Just. 197
The author examines the necessity of reforming family law guidelines to decrease the potential for cultural
discrimination. She then analyzes the use of court-appointed representatives for children in child welfare proceedings,
including abuse and neglect dependency hearings, then discusses the debate surrounding the discretionary nature
of child welfare proceedings by examining guardians ad litem (GALs) in the United States.
2014 Cyrenthia D. Shaw, Creating a New Norm: Engaging Fathers Through Direct Representation in Child in Need
of Protection or Services Action, 40 Wm. Mitchell L. Rev. 1143
The author gives an overview of the general role and marginalization of fathers in a child welfare case. She then outlines a "new norm" in which attorneys engage fathers in the process by fully understanding the fathers' legal rights and views the child protection process from the father's perspective.
2014 Amy M. Karp, Hon. Stephen M. Limon, Wendy Wolf, Children Requiring Assistance: General Principles and
Practices, JCW MA-CLE 4-1
This is a reference sheet of the major standards and laws in Massachusetts as they relate to child welfare cases.
2014 Anne Tyler Gueinzius and Julia Hillel, Permanency Best Practices for Minnesota's Foster Care Youth:
A Critical Look at Child Protection, 40 Wm. Mitchell L. Rev. 1083
The authors provide an overview of the child welfare legal system in Minnesota and then outline a best practices
model including timelines and recommendations for direct representation of children in a child welfare proceeding.
2014 Vivek Sankaran, Using Preventative Legal Advocacy to Keep Children from Entering Foster Care,
40 Wm. Mitchell L. Rev. 1036
Sankaran notes how parents in child welfare cases receive inadequate legal representation because parents
usually do not have right to counsel until after children have been removed from their care. The author argues
that preventative legal and social work advocacy could have an impact on preventing children from entering foster
care, saving families and saving child welfare systems significant amounts of money. The article details how a
family's unmet legal needs can place a child at risk of entering foster care, discusses the developing model to
address this need, and explores federal funding streams that can support the model.
2014 David Meschke, A Colorado Child's Best Interests: Examining the Gabriesheski Decision and Future Policy
Implications, 85 U. Colo. L. Rev. 547
In People v. Gabriesheski, the Colorado Supreme Court held that GALs are not their children's lawyers and, thus,
confidentiality does not exist between GALs and children. The author argues that lack of confidentiality will damage
the relationship between GALs and children because children will be less likely to disclose important information.
The author also argues that Colorado should adopt a different approach that balances the benefits of confidentiality
with the need to prevent further abuse and neglect. The approach provides for confidentiality between GALs and
children, but limits confidentiality when it exposes the child to high risk of probable harm.
2014 Rebecca Aviel, A New Formalism for Family Law, 55 Wm. & Mary L. Rev. 2003 (2014)
Family law is simultaneously moving toward and away from formalist decision making. Examining family law across its various component doctrines-custody disputes, child support, jurisdiction, and parentage-reveals these two competing trends. In some of these areas, scholars and lawmakers have recognized that litigating under open-ended, amorphous standards is unpredictable and often painful, with costs that undermine the very purposes served by these legal frameworks; in these areas we are witnessing a turn toward determinate rules over judicial discretion as the preferred means of resolving disputes. In other areas, however, family law is experiencing a trend toward more flexible decision making that prioritizes functional assessment of relationships above formal legal status. This Article brings all of these developments into the same frame for the first time. It asserts that the "functional turn" in some areas of family law would benefit from the lessons learned in other areas: that indeterminate standards and contextualized decision making do not necessarily provide the best means of doing justice for separating families. I argue instead for a new formalism, one that extends the profound advantages of certainty and stability to a wider range of family relationships.
2013 Resources for Lawyers Who Work with Traumatized Youth: ABA Child Law Center Produces Free Online Toolkit, 30 No. 8 Law. PC 6
The article provides a brief overview of working with traumatized youth and directs the reader to where the toolkit can be accessed.
2013 The Safe Start Center, Polyvictimization: Tips for Advocates Working with Children, 32 No. 1 Child L. Prac. 12
This is a brief article that describes polyvictimization (when a child has suffered multiple traumas) and an overview of best practices for attorneys and advocates working with such children.
2013 Lisa Beth Greenfield Pearl, Using Storytelling to Achieve a Better Sequel to Foster Care than Delinquency, 37 N.Y.U. Rev. L. & Soc. Change 553
California's child welfare system is failing its mandate to serve its neediest children. A significant portion of the 60,000 foster children that California cares for are dually involved with the dependency and delinquency systems. Children who have suffered abuse or neglect severe enough to be removed from their homes are more likely than well-treated children to come into contact with the delinquency system and possibly lose their dependency status in favor of delinquency status. For the young person for whom the state has taken on the parenting role under the dependency system, the blow of delinquency status is significant because of the resulting loss of the "parent" and the concordant services and rights that the "parent" has afforded. This article advocates that we use applied legal storytelling principles to direct more attention to the foster child's character, voice, and viewpoint to allow formal, earlier intervention at the phase where the child is at risk of delinquent behavior so that delinquency has a better chance at being avoided. By invoking applied legal storytelling concepts to focus child welfare advocates on children's unique narratives, this article suggests that we consider a new framework to help solve the present foster care-to-delinquency cycle to better serve foster young people and their communities.
2013 Renee VandenWallBake, Considering Childhood Trauma in the Juvenile Justice System: Guidance for Attorneys and Judges, 32 No. 11 Child L. Prac. 171
The author outlines the prevalence of trauma in the juvenile justice system; many youth in the juvenile justice system have experienced or witnessed domestic violence. The author then details the juvenile justice process and proposes alternatives for disposition and treatment that may result because lawyers and judges are informed and considering the trauma that a youth may have experienced.
2013 Miriam C. Meyer-Thompson, Wanted: Forever Home Achieving Permanent Outcomes for Nevada's Foster Children, 14 Nev. L.J. 268
The author gives an introduction of Nevada's present state laws as they relate to child welfare and then makes recommendations as to adopting new laws benefiting Nevada's abused and neglected children. She utilizes the recent Ninth Circuit decision in Henry A. v. Willden to point out weaknesses in Nevada's child welfare system. Finally, the author proposes suggestions for new child welfare legislation to increase the likelihood of permanent outcomes for Nevada's foster children—namely, the mandatory appointment of attorneys to children and parents who enter the child welfare system.
2013 Gurjot Kaur, A Case of Neglect? Representation for Children in the Florida Dependency System, 87-JUN Fla. B.J. 94
The author names Florida, among other states, as a state that does not presently require representation for children in child welfare cases. The author proposes two options: legislative requirements to require attorneys in dependency cases, appoint a guardian ad litem nonlawyer volunteer if there is a conflict. The author points out the differences among the states that do not require representation for children and the outcomes of cases in those jurisdictions.
2013 Christina Ritchie Cooper, Making the Most of Pretrial Procedures in Child Welfare Cases, 32 No. 5 Child L. Prac. 65
The author outlines a best practices checklist for child welfare attorneys and judges as to pretrial procedures, including: pretrial hearings, client preparation, and the spectrum of settlements that an attorney may encounter at the pretrial stage of a child welfare case. The author notes that the pretrial procedure plays an important role in child welfare proceedings and that a streamlined approach, as she recommends, will better serve the needs and interests of all parties involved, especially the children.
2013 Mark H. Bonner, Jennifer A. Sheriff, A Child Needs a Champion: Guardian Ad Litem Representation for Prenatal Children, 19 Wm. & Mary J. Women & L. 511
The authors describe the lack of appointed representation for prenatal children and then examines the case for appointing guardians ad litem (GAL). They provide an overview of the present function of GALs in the United States, what legal protections are already afforded to prenatal children, and the necessity and propriety of appointing GALs to prenatal children. They go on to argue that legal representation is vital to the protection of prenatal children by outlining current child welfare legislation and proposing legislative solutions and a model statute that would expand legal protection for prenatal children.
2012 Matthew J. Hulstein, Recognizing and Respecting the Rights of LGBT Youth in Child Custody Proceedings, 27 Berkeley J. Gender L. & Just. 171
To guide judges in their decision, this Commentary argues that, under Lawrence v. Texas, an LGBT youth possesses the constitutional right to be treated with respect equal to that afforded straight or cisgender youth in regards to their sexual orientation or gender identity and expression. After Lawrence, a judge may not consider becoming an LGBT adult as an undesirable outcome for a child in a child custody determination. Although the LGBT youth's minority permits the state and parents to limit the youth's rights in certain ways, there is no interest of sufficient weight to override the youth's rights under Lawrence. In practice, the youth's rights weigh in favor of placing an LGBT youth with the parent most capable of helping the youth develop into a healthy, autonomous LGBT adult.
2012 Rose Marie Wentz and Kelly Lynn Beck, Maintaining Family Relationships for Children in the Child Welfare System, 31 No. 7 Child L. Prac. 97
Children have a right to have their biological and emotional relationships maintained and enhanced. These relationships allow a child to develop resiliency and to work through and overcome the trauma they have experienced. Child welfare and juvenile justice professionals have not always viewed family finding as a tool to prevent removal and seek reunification and other permanency options. We typically focus on "fixing" the abusive custodial parent without involving the noncustodial parent and the extended family system, convinced perhaps that it's too difficult to locate missing parents or relatives. New laws and practices clarify that it is our responsibility, as a system, to locate, inform, and engage the child's family members even if the custodial parent requests that we not locate relatives. These relationships help the child survive maltreatment and develop into a healthy successful adult.
2012 Claire Chiamulera, Addressing Child Trauma By Working Together: The Need for Coordination among Child-Serving Systems, 31 No. 7 Child L. Prac. 110
Trauma-exposed children often interact with several systems, among them child welfare, education, juvenile justice, and mental health. When these systems have a shared view of trauma's impact on children and provide a coordinated system of care, children can thrive.
2012 Andrea Khoury, The True Voice of the Child: The Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings, 36 Nova L. Rev. 313
Children have been marginalized for many years in abuse, neglect, and dependency proceedings. Representation equal to the other parties in the proceedings is the only way to ensure that children's rights are protected and that their voices are heard. The ABA has taken the lead, instructing states on why and how to implement this equal representation. The call to action has gone out to the states. Passing the Model Act is only the first step. Formal legal representation by attorneys bound by ethical requirements who are trained to properly implement the Model Act is the only solution that will truly give our children a voice.
2012 Carolyn Signorelli, Connecticut's Road to "Real" Attorneys for Kids, 36 Nova L. Rev. 391
So while it remains to be seen under the new leadership of the system of legal representation in child protection cases how this new law will be implemented, the passage of this legislation remains a positive development in child welfare law in Connecticut. Hopefully, by joining the list of states that have client-directed attorneys for children, Connecticut will contribute to the momentum behind the ABA's passage of the Model Act and more states will follow suit. For those states or programs considering adopting the Model Act or similar legislation, the author hopes this article will provide some important lessons about identifying and educating potential opponents and navigating the vagaries of the legislative process.
2012 Michael J. Dale and Louis M. Reidenberg, The Kids Aren't Alright: Every Child Should Have an Attorney in Child Welfare Proceedings in Florida, 36 Nova L. Rev. 345
This article will review the March 2011 Nubia Report: The Investigative Panel's Findings and Recommendations by the Blue Ribbon Panel, (Nubia Report), the Barahona Case Findings and Recommendations summary report of the Secretary of the DCF, and the Miami-Dade Grand Jury Report, each of which contains comments and conclusions about the Barahona case that no one person was responsible to protect the children's rights.13 The article will also review recent representations by the GAL Program suggesting the Program may be engaged in the unauthorized practice of law, as well as the past, present, and future financial issues concerning the operation of the Program. It will discuss recent literature from DCF, the GAL Program, the court system, and a Pro Bono Attorney Program in Broward County. The article will demonstrate the inability of each to correctly articulate its legal and ethical mandate, the result of which is confusion, duplication, and a fundamental misunderstanding of the proper role of each, and the meaning of being the attorney for the child. The article will also comment upon updated information regarding the Gabriel Myers case14 and will point out the similarity of the conclusions in that matter to the Barahona case. Finally, the article will conclude, based upon this additional evidence, as the authors concluded in their prior article, that children in Florida must have an independent attorney. Children cannot remain the only party in a dependency proceeding who appear pro se.
2012 Amy C. Harfeld, The Right to Counsel Landscape After Passage of the ABA Model Act—Implications for Reform, 36 Nova L. Rev. 325
This article will track the groundswell of standards, research, and literature that, together, created the momentum for the Model Act's passage. It will go on to examine the federal CAPTA in more detail, explaining how it has dealt with the issue of legal representation over time. Then, CAPTA will be viewed in contrast to the Model Act and the discrepancies between the two frameworks will be highlighted. Next, state statutes concerning the provision of representation to children in dependency hearings will be classified and placed along the CAPTA to Model Act spectrum. Finally, the article will conclude with a section on how the Model Act may be best utilized as a tool in pursuing state and federal legislative reform resulting in a nationally protected right to counsel for children in dependency cases.
2012 Ira Lustbader and Erik Pitchal, Implementation of the Right to Counsel for Children in Juvenile Court Dependency Proceedings: Lessons from Kenny A, 36 Nova L. Rev. 407
Our experience in the investigation, litigation, settlement, and implementation phases of the Kenny A. litigation strongly suggests that ultimately, while impact litigation created a needed push, these two county defendants genuinely recognized that providing effective counsel to all children in abuse, neglect, and dependency proceedings was, and remains, the right thing to do. That realization, perhaps more than any factor, transformed the system for representing children in those counties.
2012 Donald N. Duquette and Julian Darwall, Child Representation in America: Progress Report from the National Quality Improvement Center, 46 Fam. L.Q. 87
This article documents the QIC-ChildRep process of gathering and distilling information that provides the foundation of the QIC Best Practice Model. Information on research, policy, and practice was integrated from many sources, including law libraries, federal and state government reports, and in-person and phone discussions with a wide range of policy makers and practitioners. Hopefully, this compilation of information will itself be of value to academics, students, courts, legislators, and others in the ongoing efforts to improve justice for children in the child welfare process.
2012 Clark Peters and John Walsh, Fiscal Returns on Improved Representation of Children in Dependency Court: The State of the Evidence, 36 Nova L. Rev. 435
This article explores the evidence that the new standards may yield benefits that outweigh the fiscal costs of implementing the Model Act, and those of competing models of representation. It first examines the few extant studies that shed light on whether the new standards might achieve the stated aims of the child welfare system--especially with regard to timely permanency--better than competing models of representation. One particular study, which evaluated the outcomes and fiscal impact of legal representation akin to that of the Model Act, is examined in greater depth. While research so far is promising that enhanced representation yields fiscal returns, the evidence remains very limited. In the final section, the authors provide suggestions for future study to develop our understanding of the broader impact of the Model Act on case outcomes, which in turn affects the bottom line of agencies, courts, and broader society.
2012 Andrew Hoffman and Beth M. Nussbaum, Postjudgment Representation, CHWPII MA-CLE 17-1
Many child welfare cases continue even after judgment enters. This chapter addresses postjudgment issues, including review and redetermination under G.L. c. 119, § 26, permanency planning hearings, foster care reviews, abuse of discretion hearings, posttrial challenges to findings of fact and conclusions of law, and preservation of appellate rights. Please note that the name of the Department of Social Services (DSS) was changed to the Department of Children and Families (DCF) in 2008. Both designations may appear in this chapter; they are interchangeable.
2012 Susan Dillard and Dorothy Meyer Storrow, Settlement, CHWPII MA-CLE 15-1
This chapter addresses the wide range of available settlement options, should the client decide to seek a negotiated outcome. Settlement can occur at any stage of the proceeding, from the seventy-two—hour hearing to the eve of trial and even after judgment while an appeal is pending. The chapter addresses placement with relatives, guardianships, open adoptions, and posttermination and postadoption contact, and provides tips for drafting settlement provisions to deal with particular circumstances. Please note that the name of the Department of Social Services (DSS) was changed to the Department of Children and Families (DCF) in 2008. Both designations may appear in this chapter; they are interchangeable.
2012 Karen Hennssey, Andrew Hoffman, Amy M. Karp, and Margaret Winchester, Trial Preparation and Conduct, CHWPI MA-CLE 13-1
This chapter is devoted to the planning, preparation, and execution of trial strategy. The chapter begins by addressing a number of preliminary considerations, including deciding whether to go to trial, developing a theory of the case, and preparing for the pretrial conference. It then focuses on document and witness preparation and conduct of the trial itself, including opening and closing statements, stipulations, dispositive motions, objections, and proposed findings of fact and rulings of law. Please note that the name of the Department of Social Services (DSS) was changed to the Department of Children and Families (DCF) in 2008. Both designations may appear in this chapter; they are interchangeable.
2012 Andrew L. Cohen and Margaret Winchester, Child Welfare Proceedings in the Probate and Family Court, CHWPII MA-CLE 16-1
While most child welfare cases arise in the Juvenile Court, this chapter addresses the four situations in which the Probate and Family Court has jurisdiction over these actions: 1) "care and responsibility" (i.e., child protection) petitions filed by the Department of Children and Families (DCF) under G.L. c. 119, § 23(a)(3); 2) sua sponte orders by the court granting custody of a child to DCF, also under G.L. c. 119, § 23(a)(3); 3) termination of parental rights proceedings filed under G.L. c. 210, § 3; and 4) voluntary placement petitions filed under G.L. c. 119, § 23(a)(1). Please note that the name of the Department of Social Services (DSS) was changed to the Department of Children and Familiesin 2008. Both designations may appear in this chapter; they are interchangeable.
2012 Kacy Wothe, The Ambiguity of Culture as a Best Interests Factor: Finding Guidance in the Indian Child Welfare Act's Qualified Expert Witness, 35 Hamline L. Rev. 729
Hearing expert cultural testimony will truly serve the child's best interests. Cultural traditions and practices can be laden with mystery, unknown to those not experienced in that culture. The white judicial system must begin to recognize different cultural practices and family structures that exist in black communities. It is not in the child's best interests to run the risk the child will either be arbitrarily removed from his or her parents because of cultural misunderstandings or will be raised ignorant of his or her culture because of an uninformed placement decision. Allowing cultural testimony from an expert witness will serve to guide the court in weighing culture as a factor and help alleviate these risks to black children.
2012 Andrea Khoury, Children's Right to Lawyer-Client Relationship Tested in Colorado, 31 No. 1 Child L. Prac. 12
This article provides an overview of the Gabriesheski case in Colorado and provides commentary on the case.
2012 Matthew I. Fraidin, Changing the Narrative of Child Welfare, 31 No. 1 Child L. Prac. 1
It is a truism that there are at least two sides to every story. In child welfare, we tend to listen for stories of sadness and failure, stories of disability and incapacity. Our power and our joy, however, are unleashed when we help children and families tell stories of happiness, success, strength, and achievement. Wishing won't make drug dependency vanish, but an addict can be more to us than her illicit hunger. Being a lawyer is an incomparable gift. It can be a gateway to worlds of exploration and growth. What I hope for all of us is to see the best in others, to learn from everyone around us, and to find out, by examining our own choices, who we really are. If we refuse to be potted plants, if we seek and tell stories of strength, we can do more good than harm as lawyers, and we ourselves can grow.
2012 Amy Karp, Child Welfare Proceedings Under the Indian Child Welfare Act, CHWPI MA-CLE A-1
The federal Indian Child Welfare Act (ICWA) establishes special procedures for children who are members or potential members of a federally recognized Native American tribe. Tribes are entitled to notice of proceedings involving Indian children. Higher standards of proof apply at temporary hearings and final adjudications, and in proceedings to terminate parental rights. Settlement agreements must also comply with ICWA requirements. Please note that the name of the Department of Social Services (DSS) was changed to the Department of Children and Families (DCF) in 2008. Both designations may appear in this chapter; they are interchangeable.
2012 Alberto Bernabe, The Right to Counsel Denied: Confusing the Roles of Lawyers and Guardians, 43 Loy.U.Chi. L.J. 833 (2012)
In light of a receipt negative revew of the state of juvenile defense in Illinois delinquency proceedings, Bernabe argues that Illinois' problems with juvenile offender representation can be traced to "the continuing confusion over the role of counsel in delinquency proceedings, particularly between the role of an attorney and the role of a guardian ad litem.
2011 Barbara Atwood, Representing Children Who Can't or Won't Direct Counsel: Best Interests Lawyering or No Lawyer at All?, 53 Ariz. L. Rev. 381 (2011)
This article challenges the recent American Academy for Matrimonial Lawyers (AAML) standards for representation of hcildren, which oppose appointing lawyers for children who lack capacity to direct counsel. While the AAML standards address primarily children in custody proceedings, this article discusses those standards in the context of chld representation standards generally, including those for lawyers in abuse and neglect procedings.
2011 Stacey L. Obrecht, Wyoming's Hidden Children and the Attorneys that Represent Them, 34-OCT Wyo. Law. 42
The vast majority of residents and attorneys in Wyoming have no knowledge of the lives these children live and the difficult jobs attorney guardians ad litem (GALs) and other juvenile court stakeholders have attempting to achieve the best outcome possible for these children through the juvenile court system. The reason most people aren't aware of the number of children and families involved in juvenile court is due to the tremendous confidentiality standard to which these cases are held.
2011 Lauren Girard Adams, Lourdes M. Rosado, Angela C. Vigila, What Difference Can a Quality Lawyer Make for a Child?, 38 No. 1 Litigation 29
The authors discuss the importance of representation for children who get involved in legal proceedings. They provide an overview of the violations and systems that presently exist, provide anecdotal evidence as to two children's cases, and then give guidelines as to representing children and protecting their interests.
2011 Sarah H. Ramsey, CHILDREN AND THE LAW IN A NUTSHELL (4th Ed. 2011)
In this pocket-sized text, Ramsey provides a succinct summary of the state of children's rights, including child welfare law. Her discussion includes an introduction to the juvenile court system, and overview of children's rights, and highlights of changes and debates within the field. Ramsey also provides the reader with definitions of abuse and neglect, and distinguishes between criminal and non-criminal abuse. Additionally, she includes a brief discussion of child representatives, the child's right to counsel, the ambiguity of the role of the child's attorney, and ethical issues regarding the representation of children. Other chapters describe adoption and foster care laws.
2011 Katherine Hunt Federle & Danielle Gadomski, The Curious Case of the Guardian ad Litem, 36 Dayton L.Rev. 337
The authors survey the history of the guardian ad litem model and highlight the ways in which this model is ill-equipped to address the needs of the current child welfare system. Delving as far back as the sixteenth century, the authors trace the development of classist, racist, and paternalistic elements of this system. These problematic elements are only deepened by the "best interests" approach, which substitutes the judgment of a typically upper-class and white attorney for that of the client. As a result, minority children are disproportionately removed from their parents, and minority families are more likely to distrust the child welfare system. To counteract these pervasive norms and negative effects, children should be represented by attorneys within the traditional attorney-client model.
2011 Barbara Glesner Fines, Symposium, Challenges of Representing Adolescent Parents in Child Welfare
Proceedings, 36 Dayton L.Rev. 307 (2011).
In this article, Fines examines the unique challenges of representing teen parents in the child welfare system. These clients are more likely than adult parents to have their children removed and therefore may be simultaneously both the parent and a child in a complicated child welfare matter. However, state laws are too often ambiguous or confused as to the role of the attorney in representing such clients. At the core, Fines advocates for a client-directed and client-centered approach to such cases, despite many state laws that require a "child's" attorney to serve in a best interests capacity. Attorneys for teen parents must fight to clarify their clients' rights, counter the effects of bias, and plan services that can support the client's development as a parent.
2011 Tamara Walsh & Heather Douglas, Lawyers, Advocacy and Child Protection, 35 Melbourne U.L.R. 621 (2011).
This article reports the results of an original study conducted by the authors. The authors sought insight on the role of lawyers and advocates within the child protection system in Queensland, Australia. They carried out their study by conducting focus groups of community service providers and interviewing child protection lawyers. The authors found that, while both groups agreed that families require professional advocates early in the child welfare process, they diverged as to who ought to be providing that service. The lawyers argued that attorneys are necessary to navigate legal challenges and realign the inherent power imbalance in child welfare proceedings. On the other hand, the community service providers argued that many of the services that families require are only quasi-legal in nature, and can be provided by any well-trained case manager for less than the cost of an attorney. The authors conclude that collaboration between the two groups is ideal and tasks should be divided as appropriate and resources dictate. They also consider the introduction of the guardian ad litem into the Queensland model as a viable alternative.
2011 Kasey L. Wassenaar, Defenseless Children: Achieving Competent Representation for Children in Abuse and
Neglect Proceedings Through Statutory Reform in South Dakota, 56 S.D.L. Rev. 182 (2011).
Currently, South Dakota state law fails to provide guidelines to attorneys representing children in abuse and neglect proceedings. Wassenaar examines the pervasive debate between best interests and traditional attorney models and how these models have been employed in various states nationwide. Wassenaar ultimately concludes that South Dakota should adopt a dual model in which attorneys are appointed either as a best interests or traditional attorney as determined by a set of criteria. She further advocates that South Dakota set out clear practice guidelines in statute for each model in order to assist attorneys in these roles.
2010 Donald N. Duquette & Ann M. Haralambie, CHILD WELFARE LAW AND PRACTICE: REPRESENTING CHILDREN,
PARENTS AND THE STATE IN ABUSE, NEGLECT AND DEPENDENCY CASES, (2d Ed. 2010).
This comprehensive text provides in-depth guidance to children's attorneys (and attorneys representing parents and the child welfare agency) on a full range of issues written by national experts in the field. It also serves as a study guide for attorneys preparing for the NACC child welfare law certification exam. The text begins with a discussion of social research regarding child well-being, various forms of abuse and neglect, child development, and other non-law issues required for successful child welfare law legal practice, including interviewing and counseling the child client. The book includes summaries of the Federal statutes governing child welfare matters, constitutional cases in the field and a detail discussion of the child protection process, from reporting to termination, and in-depth information about collateral legal matters, ethical issues, evidentiary concerns, and trial advocacy.
2010 Barbara J. Elias-Perciful, Protecting Texas Children: The Constitutional Rights of Children, 73
Tex. B.J. 750 (2010).
In 2010, a federal district court in Georgia held that children are entitled to effective assistance of counsel throughout all stages of the child welfare process. In his dissenting opinion in Troxel v Granville, Justice Stevens argued that children have a right to maintain family relationships, including relationships with siblings. Barbara presents these cases to demonstrate the evolving conceptions of children's constitutional rights and argue for the adoption of these standards within Texas' child welfare system.
2010 Andrea Khoury, Why a Lawyer?: The Importance of Client-Directed Legal Representation for Youth, 48 Fam. Ct.
Rev. 277 (2010).
In this article, Khoury provides a cursory description of the child's attorney and her importance in a child welfare case. The child's attorney must act as both counselor and advocate for the child, simultaneously ensuring that the child understands the legal proceedings and making the child's voice heard throughout the process. This model is clearly a form of the traditional attorney-client model, which Khoury argues is preferable to the best interest model, which presents inherent ethical concerns.
2010 William Wesley Patton, Viewing Child Witnesses Through a Child and Adolescent Psychiatric Lens: How Attorney's
Ethical Duties Exacerbate Children's Psychopathology, 16 Widener L.Rev. 369 (2010).
This article [discussed] the interrelationship between defined attorney ethical roles and the psychiatric empirical evidence regarding the effects of different legal ethical models on the psychopathology of abused children and/or as clients.
2009 Laura K. Abel, Symposium, Keeping Families Together, Saving Money and Other Motivations Behind
New Civil Right to Counsel Laws, 42 Loy. L.A.L. Rev. 1087 (2009)
In this article, Abel explores the motivations behind recent developments in several states regarding the right to counsel in child welfare litigation. She argues that state budgetary concerns, a desire to improve failing bureaucracies, and notions of fundamental fairness were the primary reasons for the new laws, not concerns for child welfare. Additionally, according to Abel, the provision of counsel is an end unto itself, and not, as others have posited, a means toward general improvement in the welfare of children in the abuse and neglect system. By understanding these motivations, a child welfare advocate will be better equipped to persuade lawmakers to expand right to counsel laws in her state.
2009 Janet G. Sherwood, Representing the Child in Abuse and Neglect Cases, 31 Fam. Adv. 28 (2009)
In this overview of child representation, Sherwood outlines the history of the practice and the competing models of representation, including the recently proposed standards for children's attorneys. From these, she compiles a list of elements for competent representation: training and education, independent factual investigation, communication, determination of child's wishes and interests, avoiding conflict of interest, courtroom advocacy, appellate advocacy, and ensuring that others remain focused on the child's needs.
2009 LaShanda Taylor, A Lawyer for Every Child: Client-Directed Representation in Dependency Cases, 47 Fam. Ct. Rev.
605 (2009).
The article begins with a due process analysis concluding that children are legally entitled to counsel and continues by presenting examples of federal and state legislation, court decisions, and public policy arguments that support this right. The article then goes a step further to advocate for a traditional, client-directed model of representation, which empowers children and leads to better judicial decision making. Finally, the article discusses the impact of high caseloads and lack of training on attorney performance. This article serves as an important addition to the academic literature examining the need for and role of the child's attorney in dependency proceedings.
2009 Kristine K. Howanski & Walter A. Herbert, Jr., Best Practices for Best Interest Attorneys, 42-JUN Md. B.J. 12 (2009).
Representing children in custody proceedings has often been the mental safe harbor for family law attorneys who are regularly exposed to the worst side of their adult clients in custody litigation. In the last several years, however, litigation and the legislative process have transformed the child counsel landscape, and the attorney who accepts appointment as a Best Interest Attorney is well-advised to develop a distinct set of protocols to insure that he or she provides quality representation to the minor client in accordance with these changes.
This article will briefly highlight areas of concern and certain practices that have proven effective over time, but will only discuss representation provided pursuant to appointment as a Child's Best Interest Attorney under Maryland Rule 9-205.1, not Child's Advocate Attorney nor Child's Privilege Attorney.
2009 Myrna S. Raeder, Enhancing the Legal Profession's Response to Victims of Child Abuse, 24 Crim. Just. 12 (2009).
Criminal Justice Section recently obtained a grant from the Department of Justice to enhance the response of legal professionals to child abuse victims. The Section proposed several policies that were recently adopted at the ABA Midyear Meeting in February 2009 to facilitate this result. (ABA Policy 101D.) The policies urge jurisdictions to ensure that child victims of criminal conduct have access to specialized services and protections such as those provided by child advocacy centers, as well as prompt access to legal advice and counsel. The resolutions also urge support of legislation to provide that child victims of criminal conduct have independent attorneys who can assist them in obtaining applicable victims' rights such as those provided by 18 U.S.C. § 3771, and age-appropriate accommodations such as those provided by 18 U.S.C. § 3509, if the court makes a finding that the child's interests are not otherwise adequately protected. In addition, the resolutions urge that pilot programs be established in which rights and protections for child victims of criminal conduct are protected and enforced, including the appointment of attorneys on a pro bono or compensated basis. Finally, bar associations, law schools, victim rights organizations, child rights organizations, and courts are urged to collaborate to develop procedures for courts to appoint attorneys for child victims of criminal conduct and to adopt standards of practice and training requirements for those attorneys. While these American Bar Association (ABA) policies are designed to assist all child victims, this article will concentrate on sexual abuse victims, who compose a large and particularly vulnerable category of children who interact with the criminal justice system.
2009 Special Populations: Mobilization for Change, 25 Touro L. Rev. 467 (2009).
This Article is based on a transcript of a break-out discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March 2008. The discussion was moderated by Karen L. Nicolson, Michael Williams, and Toby Golick.
This Article assesses the needs of various special populations and the possible strategies and solutions to create change through enacting a civil right to counsel. The Article is intended to capture information and viewpoints of the people who participated in the break-out discussion at the conference. Therefore, the information and viewpoints presented below do not necessarily represent the views of Ms. Nicolson, Mr. Williams, or Professor Golick.
2009 Sarah L. Marx, Comment, Seen But Not Heard: Advocating For Children in New York State, 25 Touro L. Rev. 491
On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still a long road until a collective voice for children is heard as loudly as their adult counterparts. This Comment explores the current state of the law and advocacy models in order to analyze what has been done towards improving a child's right to counsel, as well as possible future steps. It is this author's hope that the voices of children one day resonate as loudly as other politically powerful groups in New York. The children are New York's future, and their lives need to be improved.
2009 Martin Guggenheim, The AAML's Revised Standards for Representing Children in Custody and Visitation
Proceedings: The Reporter's Perspective, 22 J. Am. Acad. Matrim. L. 251 (2009)
The author recounts, from his perspective, the history and evolution of the American Academy of Matrimonial Lawyers' Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings. He then compares the Standards with those promulgated by other professional associations and describes how the Standards will change going forward. Finally, Guggenheim provides insight into the competing perspectives regarding children's rights, the politics surrounding these perspectives, and how they impact the lives of children and families.
2009 First Star and Children's Advocacy Institute of the University of San Diego School of Law, A Child's Right to
Counsel: A National Report Card on Legal Representation for Abused and Neglected Children (2009).
This is the second report card on state laws governing legal representation of children in civil child protection cases; the first was issued in 2007. The authors review and analyze the laws of all 50 states and the District of Columbia with regard to their provision of attorneys to abused and neglected children in dependency cases. The state laws are assessed according to seven criteria and assigned a grade. In 63% of states, statutory law mandated the appointment of an attorney for the child in dependency proceedings; in 51% of states, this law is under dramatic change as 33% of states had updated their laws in the two years between the initial report card and this second edition. On the whole, only Massachusetts and Connecticut received an A+ rating. The grade distribution in 2009 is: A+ or A -- 11 states; B -- 11 states; C -- 14 states; D -- 8 states; F -- 7 states. This is must reading for all child weflare policy advocates.
2009 John Anzelc et al., Comment on the Committee's Model Act Governing Representation of Children in Abuse and
Neglect Proceedings, 12 Mich. Child Welfare Bar J. 4 (Summer 2009).
This article is a response to the call for comment on the ABA's proposed Model Act Governing Representation of Children in Abuse, Neglect and Dependency Proceedings. The authors review prevailing pediatric neuroscience to inform the discussion of children's capability to understand court proceedings, direct counsel, and make decisions about their futures during a child welfare case. They then conclude that attorneys should not determine when a child is competent. Instead, children above age ten should be presumed competent to direct counsel, and children under that age should be represented by a "best interests" attorney. This model would avoid ethical dilemmas, provide clear guidance to practitioners, and empower more children to direct their representation.
2008 Barbara Glesner Fines, Essay, Pressures Toward Mediocrity in the Representation of Children, 37 Cap. U.L. Rev. 411
This essay explores the dimensions of this problem of competence and diligence in children's representation. First, the practical realities of poor funding and heavy caseloads are described and the ethical obligations of attorneys in these circumstances are explored. Second, the article examines the standards and scope of training requirements being adopted by the states and contrasts these standards to the actual demands of child representation. Finally, the article explores the confused role definitions of attorneys in child welfare representation. The article suggests why that confusion persists and how it may cause attorneys to minimize some of their responsibilities in these cases. The article concludes with some practical suggestions for attorneys in these roles to minimize the pressures toward incomplete representation.
2008 Annette Ruth Appell, Representing Children Representing What?: Critical Reflections on Lawyering for Children, 39
Colum. Hum. Rts. L. Rev 573 (2008).
This article sets forth some critical observations about the role of children's attorneys in reinforcing and challenging socio-legal norms, particularly those norms that are not child-driven or child-centered. More concretely, it critically explores the role of children's lawyers in promoting the individual and systemic interests of their youthful constituents, most of whom receive lawyers because they are caught in systems that predominately serve poor children and children of color. The article first reflects on the indeterminacy and contingency of the category of children, checking our natural tendencies to idealize children and childhood. The second section describes the children's bar, examining its legalistic approach to children's problems and their solutions, which contemplate children in isolation from their families and communities. This approach contrasts to that of attorneys who advocate for social and economic justice, advocacy with more potential to improve the material and social conditions of children and their families. The third section notes the decline in children's well-being, despite the growth of a children's bar, and sketches five thematic observations that might account for this anomaly and raise questions regarding the utility of children's lawyers and the roles that they might occupy. These observations relate to the multiple gulfs between children and attorneys, and the limitations of rights-based advocacy, particularly for clients who do not have the authority to define justice in their own terms. The final section explores how children's attorneys are beginning to critically assess their dominance and their approaches to the legal representation of children, and to develop methods to ensure that the child's viewpoint is expressed. The article concludes with a suggestion that lawyers pursue different methods for achieving justice for children that are more holistic and reflective of the norms of child clients, their families, and their communities.
2008 Barbara Ann Atwood, The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act:
Bridging the Divide Between Pragmatism and Idealism, 42 Fam. L.Q. 63 (2008).
This article explains the major policy debates underlying the Representation of Children Act and the rationales for the positions taken in the Act. Part I provides a brief background on the drafting history and scope of the new (and newly amended) Act. Part II gives an overview of state law, and Part III summarizes the competing standards for children's representatives that have been proposed by various professional groups. Part IV explains the Act in more detail, describing its basic structure and intended operation. The focus is on the three categories of children's representatives authorized by the Act and the role of courts in administering the Act. Finally, Part V explores more fully the policy positions taken in the Act and the underlying rationales, with particular emphasis on the "best interests attorney" option in the statutory scheme.
2008 Donald N. Duquette, Kiddie Law is Growing Up: Board Certification in Child Welfare Law, 25 GPSolo 52 (2008).
The National Association of Counsel for Children has created the Child Welfare Law specialization to encourage competency among attorneys who represent families in abuse and neglect cases. Duquette outlines the process for achieving certification and notes that attorneys will benefit from certification by receiving increased recognition for their unique knowledge and skills in the field.
2008 Katherine Hunt Federle, Righting Wrongs: A Reply to the Uniform Law Commission's Uniform Representation of
Children in Abuse, Neglect, and Custody Proceedings Act , 42 Fam. L.Q. 103 (2008).
This article critiques The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (URCANCPA), claiming that it is a piece of paternalistic legislation that, while ostensibly well-intentioned, undermines the rights of children, violates the Model Rules of Professional Conduct, and sets the law regarding the representation of children back twenty years. Despite vociferous objections, the drafters of URCANCPA have insisted on an approach to child representation that does not comport with Model Rule 1.14 and moves away from the trend in many states to provide the child with a client-directed lawyer in abuse and neglect proceedings.
2008 Report and Working Draft of a Model Act Governing the Representation of Children in Abuse, Neglect, and
Dependency Proceedings, 42 Fam. L.Q. 145 (2008).
The proposed Working Draft of a Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings (Working Draft) focuses on the representation of children in abuse and neglect cases and is consistent with both the ABA Standards on the Representation of Children in Abuse and Neglect Cases (ABA Abuse and Neglect Standards) [FN5] and the ABA Model Rules of Professional Conduct (ABA Model Rules). While there are a number of different thoughts around the country on the role of lawyers for children in abuse and neglect cases, any model act adopted by the ABA must conform to standards and rules already established by the ABA.
2008 Aditi D. Kothekar, Note, Refocusing the Lens of Child Advocacy Reform on the Child, 86 Wash. U.L. Rev. 481 (2008).
This Note proposes that a client-directed attorney emerges as the option best suited to refocus reform efforts to consider children first. Part I discusses child representation reform efforts over the last twelve years. Part II discusses the discord between client-directed and best interests advocacy, as well as between the specific framework of existing standards and the growing movement toward client direction. Part II next examines how current lawyer-focused standards curtail children's participation and direction, why this curtailment is harmful, and what assumptions and biases underlie these standards. Part III identifies the informal nature of family court as a principal source of the general laxity in maintaining client direction in child advocacy, by way of its heavy deference to professional decision making in dependency cases. Part IV proposes that, in light of these circumstances and the need to refocus on children, children's lawyers should assume roles as client-directed attorneys. Part IV also provides justifications as to how such a proposal would maximize client-directed advocacy without sacrificing the rehabilitative nature of family court.
2008 Greg Herman, Lawyers for Children in a Perfect World, in 21 Am. J. Fam. L., Winter 2008, at 110.
The article discusses issues involved in child custody and visitation cases including guardian ad litem (GAL) role and selection. Several suggestions are given such as availability of a sufficiently funded social worker staff in every county, coordination between a child's lawyer and the assigned social worker in forming an opinion, and requiring related training from the lawyer which would enable him to understand child development and other issues. Funding is identified as a major drawback in providing optimum legal services for children.
2008 Ann M. Haralambie, Representation of Children, in 47 The Judges' J., Winter 2008, at 23.
The revised version would also require the attorney to request appointment of a guardian ad litem, a discretionary act under the ABA Abuse and Neglect Standards, if the child's wishes are seriously injurious to the child. The ABA Custody Standards build on the Abuse and Neglect Standards, continue the client-directed model embodied in the Abuse and Neglect Standards, but also create the role of a "best interests attorney," who is not bound by the child's directives. Unlike the AAML Standards, the ABA Custody Standards envision a robust advocacy role for the best interests attorney, with the only (but very significant) difference between an attorney functioning in that role and one functioning in a client-directed role being that the best interests attorney may determine the position to be advocated, with the related ability to use, without disclosing, client confidences. Determination of the position taken, however, is a matter of objective determination of the child's legal interests. The ABA Custody Standards also require attorneys to establish and maintain a relationship with their child clients, whether acting as a child's attorney or as a best interests attorney. The Symposia in 1995, Fordham University Law School convened the Conference on Ethical Issues in the Legal Representation of Children, which culminated with the development of a set of recommendations. No decision by a judge, any more than any conclusion by a scientist, can be better than the data upon which it is based, and adding the child's own perspective can only help to inform a better decision-making process.
2008 Gail S. Goodman, et al., A Comparison of Types of Attorney Representation for Children in California
Juvenile Court Dependency Cases, in 32 Child Abuse & Neglect, Apr. 2008, at 497.
Goodman et al examine the types of attorney representation for maltreated children involved in juvenile court actions in the state of California and evaluate these types of representation with respect to children's experiences in foster care. Findings indicate that, in the majority of counties in California, children were represented by the public defender's office or by a panel of court-appointed attorneys. Approximately equal numbers of counties employed county-affiliated (i.e., District Attorney, public defender, county counsel) and independent (i.e., private firm, panel of court-appointed attorneys) types of representation (47% and 52%, respectively). Further analysis suggested that children in counties employing independent types of representation tended to experience fewer foster-care placements than did children in counties employing county-affiliated types of representation. This relation remained significant when potentially confounding variables were statistically controlled. Results indicated that some types of representation, specifically, private firms and court-appointed attorneys, were associated with one better outcome for children.
2008 Howard Davidson, Federal Law and State Intervention When Parents Fail: Has National Guidance of Our
Child Welfare System Been Successful?, 42 Fam. L.Q. 481 (2008).
The child welfare system is an unfortunate combination of legal standards and broad discretion. This mix too often results in complacent juvenile courts that merely rubber-stamp agency decisions without adequately probing into the child's life and wellbeing. Federal guidance in the form of myriad laws has helped to address this problem, but the remedies have been inadequate. The nationwide response to child abuse and neglect could be improved with greater federal funding; further research into child abuse prosecution, trial practices, and child abuse reporting on federal lands; greater funding and emphasis on the Indian Child Welfare Act mandates; increased entitlements to families under the Adoption Assistance and Child Welfare Act; increased interstate cooperation; and enhanced support for children aging out of the foster care system.
2008 Mark Henaghan, What Does a Child's Right to Be Heard in Legal Proceedings Really Mean?, 42 Fam. L.Q. 117 (2008).
The ABA Custody Standards distinguishes between two types of lawyers for children: those in the traditional counsel role and "best interests" attorneys. Despite this much-needed clarification, argues Henaghan, the ABA Custody Standards retain some contradictions regarding the attorney's role and inaccurate assumptions about children. Henaghan urges child advocates to avoid distinguishing between a child's needs and a child's viewpoint, and to recognize that even young children have some experiential knowledge upon which to base an opinion. Pre- and non-verbal children can often express their opinion in other ways, and attorneys must be attuned to such expressions. Attorneys must then translate the child's statements or expressions into reasoned statements to the court that support the child's position .
2008 Andrew E. Zinn & Jack Slowriver, Expediting Permanency: Legal Representation for Foster Children in Palm Beach
County (2008).
This report evaluates the Legal Aid Society of Palm Beach County's Foster Children's Project (FCP), which was started in 2001 to expedite children's exit from the foster care system into permanency. The primary aim of the study was to evaluate the effect of the project on the nature and timing of children's permanency outcomes. FCP operates by filing legal motions, filing TPR petitions and recruiting adoptive homes, attending staffing and case planning meetings, and advocating for services. The study found that children served by the project were statistically more likely to exit the foster care system into adoption or long-term custody arrangements, but were no less likely to be reunified with parents. Additionally, the study found that service providers and families that worked with FCP viewed the project's efforts either neutrally or negatively.
2008 Sarah E. Valentine, Traditional Advocacy for Nontraditional Youth: Rethinking Best Interest for the Queer Child,
2008 Mich. St. L. Rev. 1053 (2008).
Attorneys who operate under a best interests rubric inherently infuse their own biases into the analysis of what is best for their client. Because heterosexism and gender norms are pervasive in American society, the attorney unconsciously brings these attributes to her representation of the child client. These attributes are harmful to the queer child client, and thus an attorney for a queer child must operate under the traditional attorney-client model. Only this model can adequately protect the queer child from lawyers who fail to understand the extent of discrimination that queer children confront.
2007 Rebecca E. Baneman, Comment, Who Will Speak for the Children. 9 U Pa. J. Const. L. 545 (2007).
This article examines Kenny A. ex rel. Winn v Perdue from the Northern District of Georgia and advocates for the U.S. Supreme Court to adopt a constitutional right to counsel, rooted in the due process clause right to liberty, for children in foster care. Counsel is necessary in order to adequately protect the rights of children who have been, or may be, removed from their parents. From a policy perspective, counsel for children will make the foster care system more efficient and effective, which will in turn benefit children. Currently, CAPTA requires children to be represented in child protection proceedings, but not necessarily by counsel; there are also no requirements that this representation be effective or that the child's expressed wishes be represented. A right to counsel can be rooted in the due process clause as a protection of the child's liberty interests in safety, health, well-being, and maintaining the integrity of the family unit.
2007 Clare Huntington, Mutual Dependency in Child Welfare, 82 Notre Dame L.Rev. 1485 (2007)
According to Huntington, the primary problem with the child welfare system is that it presents post hoc solutions, rather than preventative action, to family instability. This mode of state intervention is the result of an entrenched view of family autonomy that venerates the freedom of families from state action. Huntington instead proposes a conception of family autonomy as one of interdependency between state and family, and the decoupling of a family's need for state support from a family's interest in self-determination. She concludes her article with three examples of programs in which this conceptual framework has been put into practice.
2007 Sarah H. Ramsey, Child Well-Being: A Beneficial Advocacy Framework for Improving The Child Welfare System?,
41 U. Mich. J.L. Reform 9 (2007).
This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child well-being concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides a valuable framework for the future of child advocacy.
2007 Marcia Robinson Lowry & Sara Bartosz, Essay, Why Children Still Need a Lawyer, 41 U. Mich. J.L. Reform 199
Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and well-being and to reconnect them with a permanent family, hopefully their own.
Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care to all children in foster care, they are all too often failing in this vital mission. High caseloads, insufficient caseworker training and compensation, a combination of unstable and ineffective agency management, and a lack of resources plague foster care systems from coast to coast. As a result, children who were removed from their homes for basic protection actually suffer continuing harm in state care.
The federal government has sought to improve the performance of state foster care systems through legislative reforms that have subjected these systems to the oversight of family court judges and federal auditors. Though well-intended, these federal reform efforts have not achieved the desired result. The same structural impediments that historically have prevented child welfare agencies from delivering quality services similarly have blunted the impact of federal reforms.
Child advocates have utilized class action litigation to ignite and sustain systemic reform. These class actions suits, typically involving claims for violation of substantive due process and statutory rights, have resulted in court enforceable consent decrees that have resulted in improved care, services, and permanency outcomes for children by obligating state agencies to undertake essential structural improvements. This Essay will present the disappointing history of the federal reform efforts and the promise that structural reform class actions hold for children in foster care.
2007 Victoria Weisz et al, Children and Procedural Justice, 44 Court Review 36 (2007)
The authors studied children's interest in participating in foster care proceedings, their stress regarding participation, and their perceptions of fairness. They found that children who attended court were more likely to perceive the proceedings positively and to believe that their views were heard by the court. In addition, though many children report initially feeling nervous at hearings, most reported they did not feel upset about court and reported that they were happy to have attended. Children did struggle with interacting with other family members and speaking candidly in high-tension situations, which suggests that children should be given the option not to go to court. The authors further found that a lack of legal understanding was tied to heightened stress regarding court outcomes.
2007 Peter Margulies, Lawyering for Children: Confidentiality Meets Context, 81 St. John's L. Rev. 601 (2007).
Lawyering for children does not lend itself to absolutes. Children of any age have significant deficits of cognition and experience that can make client-directed lawyering problematic. At the same time, a lawyer who disregards the expressed wishes of a juvenile client may unduly discount the child's knowledge, perspective, and need for voice. Moreover, other legal players in the child welfare system, including child welfare workers, legislators, courts, parents, and attorneys themselves, also have deficits and blind spots. Too often, these blind spots reinforce inequalities of race, culture, and class. The child's lawyer should acknowledge the local competence of all of the players, but also recognize the limits of that competence.
The debate about confidentiality in the representation of children follows this course. Some jurisdictions mandate the reporting of child abuse by lawyers. In contrast with this absolute, some commentators have argued that the lawyer's duty of confidentiality with respect to child clients should track the duty owed to adults. Here, too, however, context should trump rigid application of rules. This article, which focuses on representation of children in abuse and neglect proceedings, seeks to outline such a contextual model.
2007 Gerard F. Glynn, The Child Abuse Prevention and Treatment Act—Promoting the Unauthorized Practice of Law,
9 J. L. & Fam. Stud. 53 (2007).
Children who have been victims of abuse and neglect need effective advocacy to protect their interests in a dependency proceeding. While every state's law provides for the appointment of child advocates in these proceedings, there is an ongoing debate over who should serve as the advocate--lawyer or layman--and whether the advocate's role is to represent the child or the advocate's view of the child's best interests. Congress has weighed in on this debate and stated that each child in dependency proceedings must have an advocate and that the advocate must "make recommendations to the court concerning the best interests of the child."
This article makes the argument that permitting non-lawyers to provide the type of advocacy mandated by federal legislation and necessary to achieve good outcomes for children promotes the unauthorized practice of law. The article concludes with a recommendation that the language of the Child Abuse Prevention and Treatment Act (CAPTA) be changed to require the appointment of an attorney for every child in a dependency proceeding, and that the attorney represent the child in a traditional attorney-client capacity.
This article will refocus the debate regarding a basic question about how to best represent children's interests in dependency proceedings: if our judicial system is premised on the concept that all parties should be zealously represented when appearing before a judge who makes the ultimate decisions after reviewing all the facts and law presented, why treat children differently?
2007 Emily Richardson, Lawyers Were Children Once: An Ethical Approach to Strengthening Child Abuse
and Neglect Legislation, 31 J. Legal Prof. 357 (2007).
The quiet crisis of violence and mistreatment, cycling through shielded home environments into which policymakers are reluctant to intrude, is exacerbated by the legal profession's failure to provide effective services to the majority of America's four million children reported abused and neglected each year. Attorneys representing children are often underpaid, overworked, minimally supervised, and poorly trained to address the variety of developmental, psychological and other service-related needs exhibited by victims of abuse and neglect. Part I of this Comment provides a brief synopsis of the nature and severity of child abuse and neglect in America today. Part II details the nature of the pertinent CAPTA GAL mandates and their uneven, disorganized implementation among the majority of states. Part III asserts that state bar associations, through interpretation of professional ethics rules in light of competency and pro bono ideals modeled on CAPTA's explicit vindication of children as rights-holders, can improve the consistency and effectiveness of statutory objectives via an ethical avenue. Specifically, increased pressure among state bar associations and ethics committees to, firstly, increase lawyer participation in the GAL process on a pro bono basis under Model Rule 6.1 and, secondly, read into state adaptations of Model Rules 1.1, 1.4, 1.6, and 1.14 client-empowering "best interest" standards on behalf of minors, would provide child victims with increased options among competent advocates.
2007 Kathleen Coulborn Faller & Frank E. Vandervort, Interdisciplinary Clinical Teaching of Child Welfare
Practice to Law and Social Work Students, 41 U. Mich. J.L. Reform 121 (2007).
Because child welfare requires the collaboration of professionals across many fields (law, medicine, social work, etc.), it follows that interdisciplinary training is beneficial. Drawing on their teaching experience at the University of Michigan, the authors argue that training social work and law students together works best in a classroom, rather than a clinical setting. They go on to propose a series of topics to be covered in such a course. Each discipline carries its own set of ethical guidelines, approaches, methods and social statuses which influence the way in which an interdisciplinary course ought to be taught.
2007 American Bar Association Child Custody and Adoption Pro Bono Project, Hearing Children's Voices
and Interests in Adoption and Guardianship Proceedings, 41 Fam. L.Q. 365 (2007).
This article surveys the current law in 51 jurisdictions regarding the appointment of child advocates and hearing children's voices in adoption and guardianship cases. The study found that there is a wide variation in whether appointment of a representative is discretionary or mandatory, the qualifications required, and the role assigned. States also vary in the extent to which they consider the child's preferences during adoption and guardianship proceedings. Lack of funding for counsel, inadequate counsel, and excessive attorney caseloads are the primary barriers to having the child's voice heard. The authors recommend further research on the current state of adoption and private guardianship in order to appropriately guide the development of law in this field. Furthermore, they recommend revising state laws to more clearly define when a representative should be appointed and who should fill this role. Children's advocates should be specifically trained in this practice area and collaboration between practitioners should be encouraged.
2007 Linda Elrod, Client-Directed Lawyers for Children: It Is the "Right" Thing to Do, 27 Pace L.Rev. 869 (2007)
This article addresses conflicting views on models of representation, ranging from rights-centered approaches to those that focus on the best interests of the child, and argues for a client-centered approach.
2007 Jean Koh Peters, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS (3d Ed. 2007)
This extensive volume provides guidelines to children's representatives regarding the practical and ethical aspects of this field of law. Peters discusses aspects of attorneys' and children's worlds and competing models of representation. She details, step by step, how representation of a child proceeds, both in and out of court, in child protective proceedings. Included in this edition is a discussion of international aspects of child welfare practice, including the UN Convention on the Rights of the Child and cross-cultural lawyering.
2007 Jane Spinak, When Did Lawyers for Children Stop Reading Goldstein, Freud, and Solnit? Lessons from the
Twentieth Century on Best Interests and the Role of the Child Advocate, 41 Fam. L.Q. 393 (2007).
The author returns to the seminal trilogy, The Bests Interests of the Child, by Joseph Goldstein, Anna Freud, and Albert Solnit for insight into the ongoing debate regarding the nature of the role of lawyers for children. In that text, the authors attempted to define the legal concept "best interests of the child" for professionals in custody and child welfare proceedings. They emphasized the child's sense of time and need for continuity in relationships. With his book, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminancy, Robert Mnookin added to these basic concepts. Mnookin's view is that the legal standard of "best interests" must not contradict deeply held and widely shared social values and intervention should only occur in instances that immediately or substantially jeopardize the child's physical health. A child-directed approach towards child advocacy is achieved by certain "right practices" -- defined by these scholars as distinguishing between personal values and professional knowledge; remaining true to the role of counsel; and resisting taking on other professional roles in the case.
2007 Leslie Starr Heimov, et al., The Rise of the Organizational Practice of Child Welfare Laws, 78 U. Colo.
L. Rev. 1097 (2007).
This article summarizes the National Association of Counsel for Children's 2007 Children's Law Office Symposium. The goal of the Symposium was to gather information about children's law offices nationwide and to develop a best practices model for the delivery of child welfare legal services. The Symposium began with the premise that children are best represented by attorneys with adequate training, compensation, access to resources, and staff expertise, and these attorneys are almost exclusively housed within children's law offices. The Symposium ultimately produced the Child Welfare Law Office Guidebook, which provides thirty-three guidelines for a competent, efficient child welfare office.
2007 Colene Flynn Robinson, Child Welfare Law Office Guidebook, 78 U.Colo. L. Rev. 1119 (2007).
This Guidebook is the product of the Children's Law Office Project (CLOP), a program of the National Association of Counsel for Children. The CLOP aims to elevate the field of child welfare law by improving the operation of child welfare law offices. To this end, CLOP produced this Guidebook, which provides baseline recommendations for high-functioning, sustainable, and efficient organizations that serve children i abuse and neglect proceedings. The thirty-three guidelines are divided into the categories of administration, development, and program, and are presented as general propositions, followed by commentary.
2007 Margaret Graham Tebo, The Youngest Clients, 93 A.B.A.J. 56 (2007)
In this report, Tebo demonstrates the effects and limitations of client-directed representation of children in welfare proceedings. Children ought to have their voices heard in matters that directly affect them, but ascertaining what children want and what is best for them is rarely straight-forward. Furthermore, well-trained attorneys in this field are in short supply. Unfortunately, even when children are well-represented, their prognosis as graduates from the foster system are poor, with statistically lower rates of high school completion and higher rates of poverty, criminal involvement, and teen pregnancy.
2006 Nicholas Bala, Child Representation in Alberta: Role and Responsibilities of Counsel for the Child in Family
Proceedings, 42 Alberta L. Rev. 845 (2006)
In this article, Bala examines the current practice models for attorneys representing children in family law proceedings in Alberta, Canada. First, Bala overviews three different models: the traditional attorney-client model, the best interests model, and the friend of the court model. Because Alberta does not provide clear statutory guidance as to which model the attorney should take, Bala suggests that the model chosen should be dependent on the circumstances of each individual case. These circumstances include the child's capacity, whether the other parties are represented, the nature of the case, and the child's views. Ultimately, however, Bala argues for the adoption of clear statutory guidelines to direct attorneys in such cases.
2006 Theresa Hughes, The Neglect of Children and Culture, 44 Fam. Ct. Rev. 501 (2006).
In this article, Hughes reviews Child Abuse and Culture: Working with Diverse Families by Lisa Fontes and argues that increased attention must be paid to the role of families' race and culture in the context of child welfare proceedings. Attorneys in this field should receive appropriate threshold trainings in order to ensure adequate cross-cultural competence. Furthermore, state statutes should be amended in order to recognize the impact of race and culture on child welfare cases and to ensure the system accounts for this impact. By taking these steps, states can improve the efficacy of the child welfare system and reduce the disproportionate impact it has on minority families.
2006 Marvin Ventrell, The Practice of Law for Children, 28 Hamline J. Pub. L & Pol'y 75 (2006).
The selection of Children and the Law as the topic for the James R. Browning Symposium in 2004 says something powerful about the status of the practice of law for children and youth. Not so many years ago, this topic would not have been on the radar of symposium organizers, or had it been, it would not likely have been deemed worthy of such important academic attention. But children's law exists in 2004 as a recognized legal specialty with sufficient rigor to warrant law school symposium scrutiny. Similar to the development of pediatric medicine, the field of children's law has developed into a full academic and practice concentration. Through the development of social awareness, substantive law, law school curricula, standards of practice, and career paths, what was once a fringe professional interest and a cause of social progressives has become a legal specialty.
The importance of the development of children's law is more than academic. Children and youth represent a significant segment of the population in need of legal services, which has gone unmet for many years. In the juvenile delinquency arena, roughly 1.8 million cases are filed each year. There are even more child welfare cases in response to the approximate 4 million children who are reported abused and neglected annually. For many of these children, the legal proceedings in which they are involved determine the course of their lives and may be a matter of life and death. As lawyers who carry a special responsibility to promote justice, this is a worthy and noble focus of our attention.
We are moving from a legal system that valued children out of an occasional sense of benevolence to a system that recognizes the value of children as rights-based citizens. Precisely where this movement towards recognizing children as rights-based citizens will lead is not clear. This article attempts to trace the evolution of the practice of law for children and provide some guidance for the decision-making that lies ahead in the development of an emerging and important area of law.
2006 Howard Davidson, Children's Rights and American Law: A Response to What's Wrong with Children's Rights,
20 Emory Int'l L. Rev. 69 (2006).
Davidson argues that it is important for the United States to ratify the U.N. Convention on the Rights of the Child (CRC) in order to make the US a world leader in the protection of children and to promote the well-being of children generally. Despite what other legal scholars have argued, ratifying the CRC would not jeopardize parents' rights because "[t]he CRC simultaneously promotes the best interests of the child and gives great deference to parental decision-making prerogatives."
2006 Barry J. Berenberg, Comment, Attorneys for Children in Abuse and Neglect Proceedings: Implications for
Professional Ethics and Pending Cases, 36 N.M. L.Rev. 533 (2006).
In 2005 the New Mexico legislature required the appointment of a traditional lawyer, called a youth attorney, for children age fourteen years and older. Guardians ad litem and youth attorneys serve very different roles: the former represent the best interests of the child as determined by counsel, while the latter represent the expressed wishes of the child as directed by the child. The child advocacy community does not agree on which of these two methods-the advocate directed "best interests" model or the client directed "expressed wishes" model-best serves children, or even if either model is best in all situations. Now that the New Mexico legislature has chosen its side in the debate, though, the state should focus not on which approach is best, but rather on ensuring that the chosen model meets the needs of the children.
This Comment examines the impact of attorney representation on child protective proceedings, taking into account the effects of New Mexico statutes, court rules, and constitutional provisions. The Comment focuses on two issues. The first is an examination of the role of a child's attorney, as defined by the statutes and rules of professional conduct. The second issue discussed is the so-called "pending cases" clause, a constitutional provision unique to New Mexico that could have the effect of blocking application of the youth attorney rule for some children. A careful interpretation of children's common law rights to representation avoids any conflict between the pending cases clause and the youth attorney rule.
2006 Ann M. Haralambie, Recognizing the Expertise of Children and Families, 6 Nev. L.J. 1277 (2006).
Children and families within the child welfare system are arguably experts on their family's history, attachments, perspectives, and resources. According to Haralambie, children's attorneys should adopt methodologies from social work and other professions that honor this expertise and apply a strengths-based approach to case resolution. This approach includes family conferencing and client-directed representation.
2006 Ann M. Haralambie, Humility and Child Autonomy in Child Welfare and Custody Representation of Children,
28 Hamline J. Pub. L. & Pol'y 177 (2006).
In this article, Haralambie praises the growing consensus among children's attorneys that their role is to advocate for the child's expressed wishes in welfare and custody cases. She outlines the various standards governing this role, including those proposed by the American Academy of Matrimonial Lawyers, the American Bar Association, and the National Association of Counsel for Children. Next Haralambie lays out the developments from recent symposia and the detailed guidance provided by Yale Professor Jean Koh Peters, which includes an admonition to understand the child-client in-context and restrict the attorney's subjective discretion. Haralambie concludes by recommending that children's attorneys listen closely to their clients, provide independent counsel, attempt to settle disputes with other parties, and honestly present the child's viewpoint to the court.
2006 Kelly Browe Olson, The Importance of Using Alternative Dispute Resolution Techniques and Processes
in the Ethical and Informed Representation of Children, 6 Nev. L.J. 1333 (2006).
Olson critiques the UNLV Conference Recommendations for failing to adequately consider the value of alternative dispute resolution (ADR) in resolving child protection matters. ADR is a forward-looking process that can promote collaboration and provide valuable insight into a family's strengths and needs. Furthermore, ADR empowers families and avoids cultural, race, and class biases. A child's attorney should advocate for ADR because it will enhance her own ability to gather information about the case and develop insight about the child. A case study from Arkansas demonstrates that ADR is effective in reducing the time between a child's entry into care and the achievement of permanency.
2006 Erik Pitchal, Children's Constitutional Right to Counsel in Dependency Cases, 15 Temp. Pol. & Civ. Rts. L. Rev.
Part I of this Article summarizes the Kenny A. litigation and provides the background context for the District Court's decision. Part II presents the District Court's decision, summarizing the strengths of the Court's opinion and introducing some areas where it might have gone further. Part III adds to Kenny A. by presenting additional and alternative theories and arguments for why children have the right to a lawyer in dependency proceedings. This analysis is critical because advocates across the country have expressed interest in bringing litigation similar to Kenny A. in other jurisdictions, but the court's analysis may not be sufficient to prevail in future cases. Moreover, scholars who seek to make the theoretical case for a broader construction of children's right to counsel (or children's rights in general) may wish to go beyond the analysis contained in the Kenny A. decision. The Article closes with some strategic thoughts in Part IV for how children's advocates might construct their next right-to-counsel lawsuit.
2006 Rebecca E. Ellis, Comment, The Heartbeat of Texas Children: The Role of Court-Appointed Special
Advocates in the Wake of the 2005 Family Code Amendments, 38 Tex. Tech L. Rev. 1065 (2006).
This Comment evaluates the role of CASA volunteers in Texas court-ordered proceedings in light of the 2005 revisions. Part II presents a broad overview of the origins of child representation. Next, Part III discusses the history and current state of the National CASA Association (NCASAA) and the TCASAA.Then, Part IV addresses the Texas legislative movement, highlighting the former law and its problems, the new amendments and additions, and their impact on child representatives and the child protection system. Part V presents a review of the influence CASA and its volunteers have had in the court system and upon children nationwide. Finally, before concluding, Part VI explores the reasons why the Texas Legislature should not broaden CASA programs from Texas CPS cases to encompass private scenarios, including divorce, termination of parental rights, access, and paternity proceedings. Ultimately, the 2005 amendments provide Texas CASA and its volunteers with greater opportunities to mold the hearts of victimized children both in and out of the courtroom.
2006 Naomi Cahn, State Representation of Children's Interests, 40 Fam. L.Q. 109 (2006).
Who represents a child's interests? We generally believe that the parents have primary responsibility for a child and that, where parents are unable to assert responsibility, the state acts in parens patriae to protect the child's interests in a series of different contexts. But does the state always do this? What are the parameters of the state's role in representing and protecting children's interests? Although the role of attorneys and guardians ad litem in representing children has received a great deal of attention, the role of the state—outside of a few settings, such as the foster care system—has been more presumed than explored. The state, as the ultimate third party—and outsider—to the parent—child relationship, affects the very definition of the family, and shapes the rights and status of parents and children.
This paper explores how the interests of minors are represented in both national and international law in three contexts: first, in restricting the abortion rights of minors, the state claims to be protecting them; second, in allowing parents to decide who will act as caretaker for their children if both parents are dead, the state defers to parents' wishes; and third, in countries where the state cannot protect children and the exercise of rights in court is virtually meaningless, it is nongovernmental organizations who speak on behalf of minors.
There is already skepticism about the state's ability to represent children's interests in a variety of contexts. Many have challenged the state's implementation of the abuse and neglect system, with questions about race and class, and others have challenged conventional norms suggesting that the state is deferential to the nuclear family. In examining the state's role in speaking for children, this article serves as both a critique and a defense. This article briefly reviews the development of state intervention on behalf of children and possible legal and conceptual frameworks for examining the rights of, and representation of, children before turning to the three different contexts for examining the efficacy and parameters of the state's role.
2006 Martin Guggenheim, How Children's Lawyers Serve State Interests, 6 Nev. L.J. 805 (2006).
In this article, I will recount the history of child welfare practice in New York City. I do this because it is a history I know best, having practiced there since I graduated from law school in 1971. I also believe this history is pertinent to developments in many other parts of the United States. Part II will recount a history of children's representation in child welfare cases in New York City which will be compared with the history of parental representation in the same city in Part III. In Part IV, I will explore the roles that state officials expect from lawyers for children. The final two sections will analyze how "child welfare" has come to be defined in the United States and, in Part VI, I will discuss what the state has to gain from being able to publicly proclaim its commitment to ensuring legal representation for children in child welfare cases.
2006 Donald N. Duquette, Two Distinct Roles/Bright Line Test, 6 Nev. L.J. 1240 (2006).
It is a mistake to try to develop a single lawyer role for children in child welfare cases which tries to accommodate their developing capacities from infants to articulate teens. The older child needs a traditional attorney; the youngest child, incapable of directing counsel, needs a substitute to define and advocate for his or her best interests. We should adopt different standards for the different advocate roles. Trying to define a single lawyer role for children of all ages and all capacities is an impossible task. A better approach towards recognizing and accommodating the child's developing cognitive abilities and judgment would be to adopt a bright line age test, say at seven. At age seven (or eight or ten) and above the youth would receive a client directed advocate, that is, a child's attorney, and below the bright-line age a child gets a best interests (or substituted judgment) advocate. The court should appoint either one or the other, or both, under certain circumstances as set out in law. Both roles should be clearly established in law with duties that are aggressive and active.
We are accustomed to drawing these clear bright age lines for the various rights and responsibilities of living in our society. At sixteen a youngster is able to drive, at eighteen a person can vote, at twenty-one one can purchase alcohol, and at thirty-five a citizen is eligible to serve as President. Similarly, we all know people who, at the appointed age, are not able to handle the responsibility well and others who are ready years before the fixed age. Yet we have chosen, in these other aspects of our social contract, to use age as a proxy for maturity and judgment. We have determined that a case-by-case assessment of an individual's ability to handle the responsibility would result in a process that is too cumbersome and a result that is too idiosyncratic and inconsistent to be fair. Similar reasoning applies to determining what sort of legal advocate a child should be assigned. The following sections will demonstrate that the limitations of the bright line age test are far fewer than the perils of either a one size fits all approach to legal representation or an ad hoc, case by case determination as to whether a child receives a client-directed or substitute judgment legal advocate.
Part II discusses why neither the client-directed nor the best interest model of legal representation is adequate for all children at all stages of development. Part III describes the role of the client-directed attorney for the older child and addresses the older but immature or mentally handicapped children not fully capable of directing counsel. Part IV describes the role of the substituted judgment or best interests advocate and considers the younger child whose level of maturity and capacity might warrant greater autonomy. Part V addresses the concern that the presumptive bright line might be set too low at seven because children and youth of all ages, even fourteen and sixteen years old, might need a best interests advocate. And Part VI addresses the concern that the presumptive bright line might be set too high because the interests of all children require that their rights be protected by a client-directed attorney.
2006 Gerard F. Glynn, The Child's Representation under CAPTA: It is Time for Enforcement, 6 Nev. L.J. 1250 (2006).
The Child Abuse Prevention and Treatment Act ("CAPTA") has been recognized as very influential in the effort to provide children with advocates when they have been victims of abuse and neglect. Due to CAPTA's mandates, each state is required to provide advocates for children in dependency proceedings where decisions will be made about the most important things to children: whether and how often they will see their families; where they will live and attend school; whether they will have to leave their friends and homes; and whether they will be living with strangers.
The UNLV Conference recommends strengthening the role of the child's voice in CAPTA by mandating that CAPTA comply with the Convention on the Rights of the Child ("CRC"). The CRC requires a child be given the opportunity to be heard in any judicial proceeding affecting the child. The difference between CAPTA and the CRC is that CAPTA requires an advocate to recommend what is in the best interest of a child, whereas the CRC requires that a child be given the opportunity to be heard. While I support the Conference recommendation to strengthen CAPTA to bring it into compliance with the CRC, the recommendation, even if adopted by Congress, is meaningless unless the representation provision of CAPTA is enforced. Many states do not provide the child representation required by CAPTA. Thus, unless states are required to comply with the mandate of CAPTA (which is now over thirty years old) to provide representation to these children, changing the language regarding the nature of children's representation will not make a difference.
This Article will discuss CAPTA in Part II. Following this introduction of CAPTA, Part III will discuss how states are complying with CAPTA. Then, there will be a discussion of other child welfare enforcement mechanisms in Part IV. Part V will discuss whether the child representation provisions can be enforced through litigation. Finally, the article will recommend that, if CAPTA is to be revised, it provide for better oversight and enforcement of its child representation provisions, that the Department of Health and Human Services ("HHS") enforce CAPTA regardless of statutory changes, and that advocates use litigation to enforce the representation mandate of CAPTA.
2006 Robert F. Harris, A Response to the Recommendations of the UNLV Conference: Another Look at the
Attorney/Guardian ad Litem Model, 6 Nev. L.J. 1284 (2006).
The UNLV Conference provided the opportunity for child welfare advocates across the country to meet and discuss issues surrounding the representation of children in the child welfare system. Many thoughtful recommendations were made about raising the quality of representation that children are receiving. The Office of the Cook County Public Guardian strongly agrees that children should have an attorney in abuse, neglect, delinquency and other proceedings, however, we do not agree with the recommendation that the role of counsel be limited to a client-directed model. While the Recommendations recognize that younger children may not have the capacity to direct the course of the representation, the conference's finding that children older than seven would usually have the capacity to direct the litigation is not supported by the experience and knowledge that the Office of the Public Guardian has gained over the last twenty years. In our experience, the functions of the guardian ad litem are a crucial component of representing children, in order to ensure that the best interests of the child are advanced. Moreover, an absolute age rule does not recognize the uniqueness of every child and the uniqueness of each child's situation.
Representing children in child protection cases is as rewarding as it is difficult. The attorney-client relationship may last for years as the children's cases wind through the court system. Over the years, the children and the issues affecting their lives change. Because children's capacity changes with their age, their life experiences, their education, and the nature of the decisions that they are being asked to consider, the role of their attorney must also change. Every case is not only unique, but also constantly changing with the child, and lawyers must be able to adapt and serve accordingly. The attorney/guardian ad litem model allows the attorney the needed discretion to serve the individual needs of the child client. This article is a brief review of child developmental and legal bases for the model as well as a description of the model.
2006 Katherine R. Kruse, Standing in Babylon, Looking Toward Zion, 6 Nev. L.J. 1315 (2006).
This response paper will defend the triumph of vision at the UNLV Conference by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. I suggest that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. I thus affirm the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as they crafted recommendations for making the legal systems in which they practice, study, and teach--and about which they deeply care--better for children and their families.
2006 Mary Kay Kisthardt, Working in the Best Interest of Children: Facilitating the Collaboration of Lawyers and
Social Workers in Abuse and Neglect Cases, 30 Rutgers L. Rec. 1 (2006).
Working in the best interest of children in abuse and neglect cases is a daunting task for both lawyers and social workers. The legal system is inadequate to meet the myriad needs of children and families in crisis. Yet only under the authority of the legal system can social work and other mental health professions intervene in families on behalf of children. Collaboration is critical, but collaboration does not come easily. The juvenile court system is one that has been buffeted historically by the competing values and methods of social work and law. The institution and its rules are still evolving today, sometimes quite dramatically. This dynamic environment means that even if competition for "ownership" of the system can be set aside; collaboration will be challenged by ever-changing expectations.
The adversarial system's focus on "winning and losing" fails to adequately take into account the relationships that are at the heart of most child abuse and neglect matters. The American legal system often focuses on individual rights and responsibilities and is not very accommodating of a more inclusive view of a collective "family" right. The adversarial system's focus on the individual (bad parent, victim child) neglects the relationships among many individuals, a critical component of permanency. This is particularly troubling in the context of a system where the law itself focuses on reunification and families, rather than on individuals. Furthermore, the adversarial system's focus on individual rights has led some to conclude that when the focus is on an individual, the individual whose rights are protected are those of a parent as opposed to a child. Finally, in the area of child welfare, "rights" must be viewed within the context of child protection. The adversarial system distorts the focus by pitting one party's rights against another's.
Observers of the juvenile court system have long noted that the stakeholders in the system misunderstand or confuse their own roles and the roles of others. The source of these misunderstandings has been less thoroughly explored. Based in large part on a comprehensive study of social worker and attorney interaction undertaken by the author, in collaboration with a social worker, this article will highlight some of the problems encountered by professionals working in this truly interdisciplinary field and will suggest methods for improving collaboration. Studies of social worker-attorney interaction, including the author's own, reveal that the professionals involved often lack a shared basis in language, ethical precepts and world view which leads to an inability to resolve those misunderstandings. In Part I, the article will describe the study. Part II will examine the background, structure and history of the juvenile and family courts, emphasizing the tensions between social work and legal visions of the court. Part III will examine the different roles of lawyers within the child protection system, demonstrating the many ways that role confusion and ambiguity interfere with effective shared decision making. Part IV will examine the role conceptions held by both social workers and attorneys within the system and describe the difficulties both groups have in reconciling their competing views of the goals and methods for child protection. Finally, in Part V, the article will suggest a variety of reforms that could facilitate more effective interdisciplinary cooperation between social workers and lawyers within the child protection system, including a description of the cross-training program designed by the author and her social worker partner.
2006 Hollis R. Peterson, In Search of the Best Interests of the Child: The Efficacy of the Court Appointed
Special Advocate Model of Guardian ad Litem Representation, 13 Geo. Mason L. Rev. 1083 (2006).
In May 1995, after being removed from his biological family, Lucas's foster parents brought their seven-year-old foster son unconscious to Manatee Memorial Hospital, claiming he had self-inflicted the injuries that eventually killed him. The medical examiner did not believe that Lucas could have inflicted the more than two hundred injuries to his twenty-six pound body, including fractured ribs and scars on his penis or the final lethal blow to his head. It is difficult to imagine how Lucas, and hundreds of other abused children, must have felt-forced to stay in a situation he did not want to be in; one in which his very life was in danger; one which ultimately resulted in his death. But consider the converse, how a child would feel to be forced to leave his family against his wishes, to go live in a "better" situation. Guardians ad litem in juvenile abuse and neglect cases must make very difficult, complicated decisions having lifelong impact on the children they represent. Given the nature and importance of this role, it is disturbing that many guardians ad litem have very little training or education in children and families, receive little compensation for their work, and often are reported to provide substandard representation to their child clients. Many courts have appointed individuals as guardians ad litem without requiring prior training that adequately addresses the specific types of responsibilities they will undertake. In such situations, the legal system's protection of children may suffer.
"Guardian ad litem" ("GAL") has been defined as "a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party." The traditional guardian ad litem role requires counsel to represent the assigned juvenile throughout the proceedings and make a recommendation to the court after determining what is in the best interests of the child.
The models of guardian ad litem representation that this article will analyze are the private attorney model, the staff attorney model, and the Court Appointed Special Advocate ("CASA") model. Of these several different models, the one that stands out above the rest is that of the Court Appointed Special Advocate. The CASA model, in which trained lay volunteers provide advocacy for abused and neglected children, has been consistently evaluated as the most effective at advocating the best interests of the child and the most successful at procuring a safe and permanent home for the child in the shortest time possible. Whether acting in conjunction with a program attorney, in addition to an independent guardian ad litem attorney, or as the child's sole guardian ad litem, the CASA volunteer has raised the bar for acceptable standards in child representation and provided a solution to the nationwide problem of the often poor performance of court appointed legal counsel for children.
Part I of this article traces the history of the child advocacy movement, from the origins of children's rights through the most recent developments. Part II then discusses the various roles of the guardian ad litem in abuse and neglect cases and their use of the "best interests" standard in court recommendations. Part III reviews the effectiveness of the various models of guardian ad litem representation, discusses the problematic absence of quality legal representation in some of these models, and emphasizes the need for comprehensive adoption of the CASA model. Part IV then provides essential information to assist guardians ad litem without the benefit of a CASA in understanding and communicating with children and families and considering problems of confidentiality. Finally, Part V offers strategies to guardians ad litem to help mitigate the detrimental effects of the adversary system on children.
2006 Merril Sobie, The Child Client: Representing Children in Child Protective Proceedings, 22 Touro L. Rev. 745 (2006).
The representation of children in child protective proceedings, defined generally, as cases in which a parent or other person responsible for the care and custody of a child is charged with committing acts of child neglect or abuse, originated in the late 20th century. A few pioneering states enacted legislation in the 1960's, and the movement to provide legal counsel gained momentum through the enactment of the 1974 Federal Child Abuse and Treatment Act, and the subsequent implementation of the Act's mandate that children be afforded "representation" through the appointment of an attorney or lay "guardian ad litem." Today, the substantial majority of American children are represented by legal counsel, and the clear trend is toward universal attorney representation.
The development of children's representation, however, has been tempered by an unresolved controversy concerning the role and responsibilities of the child's counsel. Usually couched in terms of whether the lawyer should advocate the "child's wishes," or alternatively, the child's "best interests," both approaches unfortunately oversimplify the complex nature of representing children, who range in age from the newborn to the near adult. The competing models, frequently prescribed by state statute or appellate decisions and analyzed through multiple articles and commentaries, fail to meet most children's needs, and fail to appropriately guide the attorney through the complex adversarial course of child protective litigation.
The thesis of this Article is that the system should evolve beyond a "best interests" or a "child's wishes" paradigm and assume a traditional attorney-client model. That is not a new concept-the American Bar Association Standards on Representing Children in Child Protective Proceedings Act, several articles, and at least a few states have tentatively moved in that direction. To continue the progression, I believe we need a greater understanding of the child's right to representation, including the child's constitutional right to counsel, the child's role and interest in the proceedings (counsel is cast adrift in the absence of his client's defined rights), and the child's right to be involved as a participant in the litigation. I also believe we should cut a new path through the "thicket" of "child's wishes" versus "best interests" . The new path should reinforce the child's legal role, including his status as a full party to the proceedings; recognize the child's interests in protection, family integrity, and autonomy; and his right to legal representation akin to that of any other party to the litigation.
Part I outlines the historical context and address the child's right to legal representation. Part II discusses the child's legal status by defining the specific legal interests, her procedural rights as a party to the litigation, the right to choose counsel, and the child's right to be involved as a participant. The penultimate Part analyzes the role of the child's counsel, including an outline of the relevant statutes, the diametrically opposed positions of state legislatures and the organized bar, and the hopelessly conflicting contemporary case law. The final Part addresses the fundamental deficiencies of the "best interests" and "child's wishes" dichotomy, and suggests a hopefully better approach, one designed to respect and implement children's legal interests.
2006 Gail Chang Bohr, Ethics and the Standards of Practice for the Representation of Children in Abuse and
Neglect Proceedings, 32 Wm. Mitchell L. Rev. 989 (2006).
This symposium on the centenary of juvenile courts in Minnesota lends itself to a discussion on ethics and the standards of practice for the representation of children. While the landmark case, In re Gault gave children in juvenile court the constitutional right to an attorney for juvenile court proceedings where the loss of liberty for the child was a possibility, not every child has been afforded the right to a lawyer. Interestingly, Minnesota has accorded children the right to a lawyer by statute since 1959--but it is not clear how that right was implemented. One hopes it was not just another aspirational goal for protecting children with no possibility of fulfillment because the funding was not appropriated.
2006 Recommendations of the UNLV Conference on Representing Children in Families: Child Advocacy and
Justice Ten Years After Fordham, 6 Nev. L.J. 592 (2006).
These Recommendations of the UNLV Conference on Representing Children in Families ("UNLV Recommendations") embrace and address the complexities and contradictions of seeking justice for children in legal and policy settings. Affirming and building upon the Recommendations of the Fordham Children's Conference ("Fordham Recommendations"), the UNLV Recommendations aim to chart a course for children's attorneys to discern and amplify children's voices in all of their complexity and to confront the contradictions of client-directed, multi-disciplinary, holistic, and contextual representation: to cabin themselves to their role as legal experts and to consult children, their families and others with relevant knowledge and expertise regarding the social and material interests of their child clients; and, with the client's permission, not to confine legal assessment or services to the particular legal issue for which the attorney was retained or appointed. The working group reports that formed the basis for many of the recommendations provide additional context and discussion for these principles.
2006 Andrea J. Sedlak, et al., Child Protection and Justice Systems Processing of Serious Child Abuse and Neglect
Cases, 20 Child Abuse & Neglect, June 2006, at 657.
Objective: The aim of this study was to examine the trajectory of cases through four systems: child protection, law enforcement, the dependency courts, and the criminal courts. Method: This study focused on a county selected from a 41-county telephone survey conducted for the National Incidence Study of Child Abuse and Neglect (NIS-3). For this analysis prospective samples were drawn from law enforcement (n = 225) and the county child protection (CPS) agency (n = 225) and followed through in-depth case tracking across all agencies and through both the dependency and criminal court systems. Results: The percentage of CPS cases opened in dependency court was similar to prior studies (29%), but the acceptance and prosecution rates were much higher--92% of the cases referred from CPS, including many cases of physical abuse. Compared to referrals from CPS to law enforcement (93%), few cases were referred from law enforcement to CPS (17%). Anecdotally, case referral patterns appeared to be influenced by communication patterns and mutual positive regard, regardless of the collaborative protocols in place. One of the most instructive findings was the degree of difficulty in tracking cases across organizations and the types of obstacles that impeded success. Disorganization was not an issue, rather internal structures set up to facilitate intra-organizational processing were the same structures that actually impeded cross-organizational case finding. Conclusions: It is not sufficient to rely on the existence of multi-disciplinary teams or Child Advocacy Centers to ensure collaboration. More attention to daily tasks and activities as well as the nature and quality of communication is warranted. On the technical side, use of common case identifiers on cases that are cross-referred is strongly recommended. Future studies should broaden the scope of inquiry to include the consequences of all case trajectories, rather than solely focusing on the justice system.
2006 Patricia Kane, The Developing Role of the Guardian Ad Litem under the Children (NI) Order 1995, in 12 Child Care
in Practice, Apr. 2006, at 157.
The Northern Ireland Guardian Ad Litem Agency was established consequent upon the implementation of The Children (NI) Order 1995. The role of the guardian has developed and become embedded in a changing socio-legal context. This paper will review the key influences that have impacted on predominant social work thinking. Anticipated legislative change and the challenges of managing the service in a climate of productivity indices and efficiency savings will be explored.
2006 Jean Koh Peters, How Children are Heard in Child Protective Proceedings, in the United States and Around the
World in 2005, 6 Nev. L.J. 966 (2006).
Although the U.N. Convention on the Rights of the Child (CRC) mandates that, in all proceedings affecting children, the best interests of the child must take preeminence, only one-sixth of the world's children live in a country where they are entitled to be heard. The author surveys and compares varying legal regimes under the CRC, and finds that compliance with the CRC is haphazard and eclectic. In the United States, there are 56 separate legal regimes, each attempting to balance CAPTA's guardian ad litem requirement with growing academic consensus for traditional lawyerly roles for representatives of children.
2006 Jane M. Spinak, Simon Says Take Three Steps Backwards: The National Conference of Commissioners on
Uniform State Laws Recommendations on Child Representation, 6 Nev. L.J. 1385 (2006.
In 1996 and 2006 respectively, the UNLV and Fordham conferences each pushed for client-directed representation of children and therefore rejected the "best interests" model of child welfare practice. According to Spinak, the National Conference of Commissioners on Uniform State Laws threatens to undermine this progress with its proposed Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act. The proposal revives the dual roles for a child's attorney -- as legal representative and as evaluator of the child's "best interest" -- and therefore reinvigorates the confusion as to how one in this position is to proceed. Secondly, the proposal grants the courts discretion to define the relationship between attorney and child, which will interfere with the independent judgment of the lawyer. Finally, the proposal introduces a "Court-Appointed Advisor" to separately interview the parties, analyze the case, and determine the best interests of the child. This "Advisor" is wholly unnecessary and will only muddy the waters of child welfare proceedings.
2006 Christina A. Zawisza & Adela Beckerman, Two Heads Are Better Than One: The Case-Based Rationale for
Dual Disciplinary Teaching in Child Advocacy Clinics, 7 Fl. Coastal L. Rev. 631 (2006)
The authors, a lawyer and a social worker, each with extensive clinical teaching experience, advocate for an interdisciplinary approach to child welfare clinical education. The article discusses the evolution of clinical legal education and the recent movement towards an interdisciplinary approach, creative problem-solving, and therapeutic jurisprudence. It also argues for the integration of social work principles and practices into child advocacy clinics, and applies these to a case example. According to the authors, by taking this approach, both attorneys and social workers will better understand the common ground they share within the child welfare context.
2006 Manuela Stotzel & Jorg M. Fegert, The Representation of the Legal Interests of Children and Adolescents
in Germany, 20 Int'l J.L. Pol. & Fam. 201 (2006).
The Department of Children and Adolescent Psychiatry/Psychotherapy at the University of Ulm studied the experiences of children with "children's guardians" in family and guardianship court proceedings. The study found that children, for the most part, correctly identified their representative's role and described the relationship with their children's guardian in positive terms. Complaints frequently stated by children about their guardian included ineffectiveness, betrayal, and lack of dedication. Children were more likely to express satisfaction with their guardian when they had a clear understanding of the court proceeding, felt the guardian supported them during their personal hearing with the judge, and the children's opinion was clearly expressed to the judge.
2005 Barbara Ann Atwood, Representing Children: The Ongoing Search for Clear and Workable Standards,
19 J. Am. Acad. Matrim. Law 183 (2005).
Children's representatives appear in a variety of settings, including child custody disputes, abuse and neglect proceedings, contested adoptions, civil commitment, procedures for obtaining judicial consent for abortion, and, of course, juvenile delinquency cases. This article will describe the most prominent approaches to child representation within the United States, with a focus on the legal representation of children in abuse and neglect proceedings and private custody disputes. To illustrate the range of approaches currently in place across the United States, Part I highlights differences in the laws of several states regarding children's attorneys and guardians ad litem. In some states, legislatures have codified guidelines for children's representatives in an effort to bring clarity and predictability to this area of the law. In other states, courts have announced principles governing lawyers and guardians ad litem on an ad hoc basis. The various approaches, while often contrasting markedly one from another, generally reflect policy choices about what best protects children. Part II analyzes a few of the key ethical issues that can arise in the course of a lawyer's representation of a child client. Ethical tensions have driven many of the proposals regarding children's attorneys, and courts have resolved these tensions differently. Part III summarizes the competing proposals governing children's representatives that have emerged within the United States, with particular attention to the American Academy of Matrimonial Lawyers' ("AAML") guidelines for lawyers representing children in custody disputes and the contrasting American Bar Association ("ABA") proposed standards of practice for children's attorneys.
Throughout this analysis, I offer reflections on the relative merits of the competing models of children's representatives, emphasizing the points of agreement as well as the points of contention. The passion with which children's advocates defend their positions has convinced me that universal consensus is unlikely to be achieved soon. On the other hand, the very existence of the debate can be seen as a positive development. As we move into the twenty-first century, I find hope and promise in the fact that child advocates, professional associations, legislatures, and courts are engaged in a conversation about how best to speak for our most vulnerable population.
2005 Andy Bilson & Sue White, Representing Children's Views and Best Interests in Court: An International Comparison,
14 Child Abuse Rev., Jul.-Aug. 2005, at 220.
This paper provides a comparison of a number of alternative models of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. The paper notes that, in their attempts to address the need for children to have representation in matters affecting their welfare, English-speaking countries have tended to conflate the two salient Articles of the United Nations Convention on the Rights of the Child, that is, Article 3, which deals with the child's best interests, and Article 12, which deals with their right to express their wishes and feelings. Where systems other than `stand alone' legal representation have been put in place, the child's representative is charged with both assessing their best interests and, often as a secondary duty, communicating their views. The paper concludes that for some groups of children in public or private law proceedings, an advocate (rather than a best interest oriented guardian, and where necessary in addition to a legal representative) may enable better representation of the child in the courts and greater participation by children in legal proceedings, an increased role for children as citizens and a fuller implementation of their rights.
2005 Bernie Sue Newman, Paul L Dannenfelser, & Derek Pendleton, Child Abuse Investigations: Reasons for using
Child Advocacy Centers and Suggestions for Improvement, 22 Child & Adolescent Soc. Work J., Apr. 2005, at 165.
Child protective service (CPS) and child abuse law enforcement (LE) investigators have been required by the majority of states to work together when investigating criminal cases of child abuse. Child Advocacy Centers (CACs) and other. multidisciplinary models of collaboration have developed across the United States to meet these requirements. This study surveyed 290 CPS and LE investigators who use a CAC in their investigations of criminal cases of child abuse. Reasons given for using, centers, include legal or administrative mandate and protocol, child appropriate environment, support, referrals, capacity for medical exams, expertise of center interviewers and access to video and audio technology. Respondents also identified ways that centers could be more helpful.
2005 Leonard Edwards, et al., The Judicial Role in Creating and Supporting CASA/GAL Programs, in 14 Juv. and Fam.
Justice Today (Issue 1) at 16 (2005).
Court Appointed Special Advocates (CASA) and guardian ad litem (GAL) programs provide critical support for abused and neglected children who are under the protection of the juvenile or family court. This article describes how judges can create, support, and sustain CASA programs in their own jurisdictions so that these children will be better served. It presents suggestions about how judges can make their CASA programs as effective as possible. Such programs will bring great benefits to the judge, but most importantly to the children for whom the judge has legal responsibility.
2005 Melissa J. Maguire, Depriving Children of a Voice is Not Harmless Error, 38 Suffolk U.L. Rev. 661 (2005)
In this article, Maguire advocates for reform of Massachusetts' child welfare law. The traditional attorney-client model, which is currently employed in Massachusetts, is problematic because it fails to account for instances in which the child's judgment is poor. Massachusetts should instead adopt the two-lawyer system of representation in which a second attorney acting as a guardian ad litem may be appointed when the traditional attorney believes the child may be harmed by the client-directed approach.
2005 Shari Shink, Justice for Our Children: Justice for a Change, 82 Denv. U.L. Rev. 629 (2005)
In this article, Shink argues that the child welfare is currently designed to protect the legal interests of adults, and as a result cannot adequately protect the rights of children. To support this argument, Shink presents three case studies that demonstrate how children can be harmed by the current abuse and neglect system. She then highlights the inherent injustices of a legal system that views children as impaired adults and discounts the value of childhood for its own sake. Shink concludes by suggesting reforms to children's rights to counsel and fundamental fairness within the child welfare system.
2005 Marvin Ventrell, The Practice of Law for Children, 66 Mont. L. Rev. 1 (2005)
Ventrell traces the history of children's law from the pre-sixteenth century, when children were viewed as property, to today, when children are viewed as rights-bearing citizens. The article surveys major legal and social developments in Europe and the United States that led to our current child welfare system. Ventrell concludes that children's law is now considered a legitimate field of practice, albeit one in the nascent stages of development.
2005 Protecting Children: An Annotated Bibliography, 19 J. Am. Acad. Matrimonial Law 401 (2005)
This annotated bibliography lists books and articles from the mid-1990s to 2005 on legal issues that affect children. Topics include international and same-sex adoption, child custody, abuse and neglect, domestic violence, education, health care, and the representation of children.
2004 Davin Youngclarke, et al., A Systematic Review of the Impact of Court Appointed Special Advocates, 5 J. Center
for Families, Child & Cts. 109 (2004).
We have celebrated the 100th anniversary of California's juvenile court, and yet we continue to struggle with our system of intervention on behalf of abused and neglected children who have been removed from their homes. For the past 27 years, volunteers working in Court Appointed Special Advocate (CASA) programs have played an important role in helping abused and neglected children get through the dependency process. This article summarizes the findings of 20 studies assessing the impact of CASA programs on (1) the activities of child representatives, (2) the dependency process, and (3) case outcomes and reentry into foster care. It combines and interprets statistical information in an effort to make the information easily accessible to judges, lawyers, social workers, policy-makers, child welfare professionals, social scientists, and the general public.
2004 Andrew Hoffman, The Role of Child's Counsel in State Intervention Proceedings, 3 Conn. Pub. Int. L.J.
Hoffman advocates that the "appropriate model for child's counsel in state intervention cases is to presume the child's position in litigation is reunification with her family," and unless this presumption is rebutted, counsel should argue for reunification on the child's behalf. This presumption would diffuse the long-standing debate between the best interests and expressed wishes models, neither of which, according to Hoffman, is adequate. Hoffman's proposed presumption would comport with the basic tenet of public policy that children belong with their parents. It would also lessen the harmful effects of racism and classism that are prevalent in the child welfare system.
2004 Beth Locker and Melissa Dorris, A Child's Right to Legal Representation in Georgia Abuse and Neglect
Proceedings, 10 Ga. St. B.J., 12 (2004).
In Georgia there are nearly 14,000 children currently involved with the child welfare system,1 and each of these children has been involved in at least one hearing in Georgia's juvenile courts. For the children and families involved, these hearing are of momentous importance. Whether it is a probable cause hearing, a termination of parental rights hearing or any of the possible steps in between, these hearings change children's lives forever. Despite the critical nature of these hearings, not all of Georgia's children receive legal representation in deprivation cases, leaving children's interests vulnerable to an overburdened and frequently inattentive system.
2004 John Meyers, et al, Symposium, Session 3: Children's Rights in the Context of Welfare, Dependency, and the Juvenile
Court, 8 U.C. Davis J. Juv. L. & Pol'y 267 (2004).
Meyers argues that Gault has done more harm than good in protective proceedings because it has made proceedings more formal, and thus less flexible to myriad family needs and more adversarial in general. He recommends a rejuvenation of alternative dispute resolution models in order to resolve this. He also draws a bright-line at age fourteen; children under that age should be represented by "best interests" attorneys and those older should have their wishes directly represented by their attorney.
Karen Grace-Kaho outlines the history of the child welfare system in the United States. She also discusses the purpose and value of the Foster Care Ombudsman Office in the state of California.
Alice Bussiere argues for the need for expediency in tandem with well-considered reform to the child welfare system in California. She touches on three areas in particular need of attention: community care licensing requirements, child welfare review standards, and permanency for older foster youth.
Jennifer Rodriguez discusses the challenges faced by children aging out of the foster care system. She argues that youth empowerment and teaching youth decision-making skills are critical in preparing these children for a successful exit from foster care. Furthermore, educating these youth about their rights while in foster care can go a long way toward ensuring their effective representation throughout the legal process.
2004 Thomas M. O'Brien, CHILD WELFARE IN THE LEGAL SETTING (2004)
This book is intended for social workers who practice in the child welfare field. In chapter 6, the author discusses the natural conflict between social workers and attorneys in protective proceedings, and argues that this conflict harms efficiency, injures the clients, impairs work environments, and affects trust throughout the system. This chapter also discusses how the increasing focus on children's rights, as opposed to child welfare, has widened the chasm between social workers and attorneys. Chapter 7 of the text discusses stereotypes and differing worldviews of attorneys and social workers, and how these generate conflict, which is magnified within the adversarial system. According to O'Brien, attorneys and social workers define "facts" differently, and have marked differences in language, communication styles, values, and focus level (individual vs. systemic).
2004 Jennifer L. Renne, Center on Children and the Law, LEGAL ETHICS IN CHILD WELFARE CASES (Claire Sandt Ed.
This book identifies ethical issues, lays out attorneys' ethical obligations, and provides practical guidance to child welfare attorneys. The author applies three ethical responsibilities -- competence, diligence, and communication -- to this field of practice. She also explains the delicate balance between maintaining client confidences while advocating for her needs and working with other parties to provide necessary services. The book also includes a discussion of conflicts of interest, interaction with other parties, and diminished capacity and its effect on the attorney-client relationship.
2004 Jonathan Whybrow, Children, Guardians and Rule 9.5, in 34 Fam. L., July 2004, at 504.
The President of the Family Division issued a Direction on the appointment of guardians ad litem for children in private law cases, Representation of Children in Family Proceedings Pursuant to r 9.5 of the Family Proceedings Rules 1991 [2004] Fam Law 459.This article examines party status issues, previous guidance, the 2004 President's Direction, and 10 examples that try to distinguish the cases in which a child may be made a party. It then discusses exception cases. The President's Direction and the Practice Note helpfully separate the issues of making the child a party and the internal allocation of work within CAFCASS. However, neither document assists in identifying the purpose of making the child a party of the choice of guardian made. As indicated above, the primary reason for using the vehicle of r 9.5 seems to be to enable the CAFCASS officer to obtain legal advice and assistance. The need to consult children in making decisions about their welfare is commonly accepted and understood. The way in which this can best be achieved is probably for there to be a range of interventions. In most cases, a CAFCASS officer will remain the best way to achieve this. In some cases, the child will need to be seen by the judge and, conceivably, will need to attend some court hearings, for example, concerning secure accommodation. In some cases (most public law cases for example) the CAFCASS officer will be assisted by legal advice and representation. The current approach of the court is based largely on historical construction (the need to identify 'the parties' to a case and the need for a 'minor' to be represented by an adult guardian ad litem in the High Court and county courts). It would be more efficient and more child-centered to start from a different perspective. The parties and the court should consider how best to ascertain the child's wishes and feelings and how best to consult the child throughout the court process. This would accord with the duty in Art 12 of the UN Convention. Secondly, the needs of the CAFCASS officer for advice and assistance also requires separate consideration. The court should have the power to appoint a child's guardian, a term that most accurately describes the responsibilities of the CAFCASS officer appointed by the court, and the officer should have the 'power to seek legal representation according to the needs of the case.'
2003 Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for
Custody Cases, 37 Fam. L.Q. 105 (2003).
This article describes the ten years of work that produced the Standards of Practice for Lawyers Representing Children in Custody Cases. Ultimately, the American Bar Association Committee agreed that lawyers should be appointed as lawyers and act as the child's representative, regardless of the child's age or maturity. If the attorney disagrees with the child's wishes, then the attorney can ask the court to appoint a "best interests" attorney, but should not attempt to take on this role herself. Children's attorneys should be appointed by the court in any of the enumerated circumstances and all children's attorneys ought to receive specialized training in this field.
2003 Subha Lembach, Representing Children in New York State: An Ethical Exploration of the Role of the Child's Lawyer
in Abuse and Neglect Proceedings, 24 Whittier L.Rev. 619 (2003).
In New York, representatives for children play an ambiguous role as both the child's zealous advocate and guardian. This ambiguity makes the traditional negligence standard for legal malpractice inappropriate. Instead, Lembach argues that children's representatives should be liable for legal malpractice when they fail to act in good faith in exercising discretion or fail to exercise any discretion at all. To avoid liability, attorneys should take into account their client's age, mental capacity, emotional well-being, and ability to make decisions about his future when deciding how much weight to give to the child's wishes. Lembach acknowledges, however, that this guidance has little utility.
2003 Jacob Ethan Smiles, A Child's Due Process Right to Legal Counsel in Abuse and Neglect Dependence Proceedings,
37 Fam. L.Q. 485 (2003).
This article argues that children are constitutionally-entitled under the Due Process Clause to representation in protection proceedings. Such proceedings impact the liberty interests of children, there is a high risk of erroneous deprivation of this liberty if procedures are insufficient, and providing representation will further the state's goal of promoting the best interests of the child. The provision of a guardian ad litem is insufficient to satisfy this due process entitlement because GALs do not necessarily represent the child's views.
2003 Robert E. Emery, Children's Voices: Listening -- and Deciding -- Is An Adult Responsibility, 45 Ariz. L.Rev. 621
The author questions the prudency of asking for children's opinions in disputes regarding their custody in divorce proceedings. Such an approach can burden children with too many decisions that are more appropriately left to adults. The increase in children's responsibility is unfitting for children, who have not psychologically developed sufficiently to handle the burden and ramifications of this decision-making power. Instead, Emery argues, adults should take children's views into account before making the final decision themselves.
2003 Michelle Markowitz, Is a Lawyer Who Represents the "Best Interests" Really the Best for Pennsylvania's
Children?, 64 U. Pitt. L. Rev. 615 (2003)
According to recent statute, all attorneys for children in abuse and neglect proceedings in Pennsylvania are to serve guardians ad litem and represent the child's best interests to the court. This article analyzes that legislation and concludes that, although this is the wrong approach from a theoretical standpoint, it was the only possible approach due to practical constraints. The statute falls short because it fails to define "best interests," leaving this determination to untrained attorneys, and does not account for different levels of decision-making capacity that children have.
2003 Margaret Graham Tebo, The Most Vulnerable Clients, 89 A.B.A.J. 48 (2003)
In this article, Tebo surveys unique considerations for attorneys who represent children. First, she discusses the long-standing debate between best interest and traditional attorneys. Second, Tebo demonstrates the importance of vocabulary and personal rapport when using a child as a witness during trial. Finally, Tebo presents the interdisciplinary aspects of the practice of juvenile delinquency law and advocates for specialized training for all attorneys who represent children.
2002 Ann M. Haralambie & Kari L. Nysse-Carris, Children's Legal Representation in Civil Litigation, in CHILDREN,
SOCIAL SCIENCE, AND THE LAW (Bette L. Bottoms Ed. 2002).
In this article, the authors explain the historical development of legal representation of children. They lay out the various attorney models of representation (traditional, GAL, attorney for the GAL, etc.), as well as non-attorney models of representation, such as the CASA program. For each model discussed, the authors present the potential ethical dilemmas and practical implications.
2002 Subha Lembach, The Right to Legal Representation at Service Plan Reviews in New York State, 6 U.C.
Davis J. Juv. L & Pol'y 141 (2002).
In New York, although parents are entitled to representation in child welfare proceedings, they are frequently unrepresented at service plan reviews. At these meetings, critical decisions are made about the family, including what steps the parent must take in order to achieve reunification. If these steps are not taken, the parent risks termination of her rights to the child. The presence of counsel at service plan reviews can help parents to understand their rights and the implications of any proposed service plan. According to Lembach, failure to provide counsel at service plan reviews violates parents' due process rights.
2002 Melinda G. Schmidt & N. Dickon Reppucci, Children's Rights and Capacities, in CHILDREN, SOCIAL SCIENCE AND
THE LAW (Bette L. Bottoms Ed. 2002).
This article provides historical context for the emergence of children's legal rights and summarizes major U.S. Supreme Court cases, including Gault, Yoder, and Tinker. The authors highlight recent areas of growth in children's rights (e.g., due process for juvenile delinquents, medical and abortion rights, rights surrounding mental health treatment, school rights, and participating and protection) and note the inconsistent development of these rights. Finally, the authors discuss social science research regarding children's understanding of legal rights and their competence to make legal decisions.
2001 Annette Appell, Boyd School of Law Child Welfare Clinic, 9 Nevada Lawyer 23 (2001).
In 2000, the William S. Boyd School of Law *UNLV) launched its first live-client clinical programs. The Child Welfare and Juvenile Justice clinics utilize the traditional client representation model as they advocate for children in the dependency and delinquency systems. When a child is non- or pre-verbal, the clinic works to protect the child's legal rights to safety and to be raised by her family.
2001 Tania M. Culley, What Does it Mean to Represent Delaware's Abused, Neglected, and Dependent Children?,
4 Del. L. Rev. 77 (2001)
Although CAPTA requires representation for children in the welfare system, Delaware did not meet this mandate until 2000, when it passed a law to appoint lawyers to fulfill this role. Until this law was passed, CASAs inadequately fulfilled this role because there were insufficient numbers of CASAs available. As a result of the Delaware law, the state created the Office of the Child Advocate to coordinate and represent children in child welfare proceedings from a best interests perspective. The law also requires all GALs to participate in specialized training.
2001 Michael J. Dale, Providing Counsel to Children in Dependency Proceedings in Florida, 25 Nova L. Rev. 769 (2001).
The Florida child welfare system guarantees representation for parents and the state, but representation of children only occurs by volunteer guardians ad litem on an ad hoc basis. The author argues that independent representation should be guaranteed to children in dependency proceedings, and that this will ameliorate some of the negative effects of Florida's notoriously broken child welfare system. Legal support for this argument is grounded in both federal and state statutory law.
2001 Susan A. Snyder, Juvenile Law Center, Promises Kept, Promises Broken: An Analysis of Children's Right to counsel
in Dependency Proceedings in Pennsylvania (2001)
The author conducted a state-wide survey to determine the nature and quality of child representation in Pennsylvania; this article is the result. In Pennsylvania, attorneys are appointed to represent the best interests of children in all child protection proceedings. The survey found that frequently these attorneys failed to meet with their clients prior to court proceedings, inadequately investigated their clients' cases, and failed to fully participate in proceedings. Confounding these issues was a lack of understanding regarding the attorney's role, lack of training, large caseloads, and wide variation in the levels of compensation received. The author concludes by recommending stricter adherence to state law on child representation, increased training opportunities, reduced caseloads, increased compensation, and appointment of attorneys early in the lifetime of each case. Judges and courts can improve the representation of children by setting high expectations and applying funding to this field.
2000 Melissa Breger, et al., Building Pediatric Law Careers: The University of Michigan Law School Experience,
The authors, faculty and staff at the University of Michigan Law School, describe the components of the pediatric law career program at that institution. Centered around the Child Advocacy Law Clinic, the program aims to train young attorneys in the broad field of pediatric law, defined as any legal proceeding serving the needs of children (protection, delinquency, education, etc.). Through the clinic, students gain experience in abuse and neglect proceedings and begin to develop a fluency in this area. The Interdisciplinary Seminar in Child Abuse and Neglect emphasizes the multi-disciplinary nature of this practice. By participating in the Bergstrom Summer Child Welfare Law Fellowship, students may develop the basic skills and knowledge needed for this field, while networking with other advocates from throughout the United States. Finally the Child Welfare Law Resource Center serves practicing attorneys and judges by providing them with specialized continuing legal education in the field.
2000 Donald N Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles
are Required, 34 Fam. L.Q. 441 (2000).
The child welfare community is split between advocates of a "best interests" model and those who believe the child's representative should take on a traditional lawyerly role. In the midst of this debate, Duquette takes a third stance by arguing that both positions should be better defined and utilized. According to Duquette, each approach has its deficiencies that may make it inappropriate under the circumstances of an individual case. Therefore, the court in a child protection proceeding should appoint the child's representative to take on one of the two prevailing roles. The author provides arguments in support of a bright line age rule, above which the attorney for the child is presumed to be client directed and below which the attorney is assumed to adopt a best interest role. Regardless of which approach is utilized, the child's representative should provide zealous advocacy on behalf of the child.
2000 Katherine Hunt Federle, Children's Rights and the Need for Protection, 34 Fam. L.Q. 421 (2000).
Federle discusses the nature of representation in the context of children's rights theory. She notes that prevalent modes of child representation in abuse and neglect proceedings perpetuate views of children as vulnerable, thereby disempowering them. Giving children a voice through appointing legal counsel for them better fits the theory that children are rights-holders.
2000 Randi Mandelbaum, Revisiting the Questions of Whether Young Children in Child Protection Proceedings Should
be Represented by Lawyers, 32 Loy. U. Chi. L.J. 1 (2000).
Too often children's attorneys in child protection cases exercise too much discretion, resulting in legal determinations that are excessively based on the attorney's own views and background. To solve this issue, the author argues that attorneys representing children should take on a traditional attorney role and take proactive steps to understand the lives of their clients. To support these goals, enhancements must be made in the roles that social workers and CASAs play within the child welfare field.
2000 David R. Katner, Coming to Praise, Not to Bury, the New ABA Standards of Practice for Lawyers who Represent
Children in Abuse and Neglect Cases, 14 Geo. J. Legal Ethics 103 (2000).
This article argues for adoption of the ABA standards for lawyers who represent children for three reasons: (1) "there must be greater clarity in separating the role of counsel for children from the role of guardian ad litem for children"; (2) current ethics standards are ambiguous; (3) adopting clear standards holds child representatives accountable for malpractice liability.
2000 Judith Masson, Representation of Children in England: Protecting Children in Child Protection Proceedings, 34
Fam. L.Q. 467 (2000).
Masson gives an overview of "care proceedings" in England and its method of dual representation: courts appoint both a guardian ad litem and a specialist solicitor. She notes that the current "practice of representation reflects concern with children's welfare, not their rights" and advocates for a system that more uniformly involves child participation.
2000 Debra H. Lehrmann, Who Are We Protecting? An Analysis of the Law Regarding the Duties of Attorneys and Guardians
ad Litem, 63 Tex. B.J. 122 (2000)
This article posits that the client-centered approach to representing children can be detrimental to the legal process because it can prevent necessary information from reaching the judge, which in turn harms the child's best interests. Non-lawyers are not a preferable substitute for attorneys in these instances because they are unable to place items into evidence and initiate discovery, and because there simply aren't sufficient numbers of individuals to fill this role in most states.
Attorneys who are appointed as ad litem by the court may be subject to judicial immunity from malpractice suits, but this doctrine is unclear and thus practitioners in this field must be wary. Much of this liability and confusion could be prevented if courts, in appointing children's representatives, provided clear instruction as to the representative's role and duties. In Texas, the attorney ad litem's duty is to protect the child's interest; this is to be further clarified and defined by the appointment in each individual case.
2000 Sarah H. Ramsey, New Perspectives on Child Protection, 34 Fam. L.Q. 301 (2000).
This article serves as an introduction to subsequently published articles on the issue of legal reform for the child welfare system. Ramsey briefly summarizes each of the articles, each written by a leader in the field of child welfare. She notes the consensus that the child welfare system is currently inadequate to serve vulnerable children and families across the nation.
2000 Jane M. Spinak, The Role of Strategic Management Planning in Improving the Representation of Clients: A Child
Advocacy Example, 34 Fam. L.Q. 497 (2000).
In this article, Spinak discusses her experience managing a child welfare organization and argues that organizational management can enhance the quality of child representation. She begins with an overview of the changes to child welfare practice in New York State over the past few decades. She then discusses the specific changes she enacted at the Juvenile Rights Division of New York in order to adjust to the evolving nature of child welfare work. These changes occurred after careful assessment of the current organizational structure, an open dialogue about desired change, the utilization of external opportunities, and the integration of internal evaluations into the organizational structure. Changes included redistribution of more case responsibilities to paralegals, the division of practice into three distinct areas (juvenile delinquency, child protective cases, and permanency planning), and the placement of new attorneys exclusively in the less-demanding permanency planning division.
1999 Jesica Matthews Eames, Seen But Not Heard, 48 Emory L.J. 1431 (1999).
Eames advocates for the adoption of Jean Koh Peters' "child-in-context" model for the representation of children in the State of Georgia. After surveying varying models of representation and recent developments in this legal field, Eames argues that an attorney's role should generally be to advocate for the child's counseled expressed wishes. Georgia's child welfare statutes are currently vague about the attorney's role, and therefore Eames supports the adoption of the ABA Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases into Georgia law. Under these standards, attorneys will take on the traditional attorney-client role, and a separate guardian ad litem can be appointed when necessary.
1999 Jennifer Walter, Representation of Children: Averting Revictimization of Children, 1 J. Center Children & Cts. 45 (1999)
In California in the late 1990s, children in protective proceedings were represented, if at all, by counsel that also served as representatives of the state. Walter examines this system and argues that children in protective proceedings should be entitled to independent court-appointed counsel who are both adequately trained and funded. Without such counsel, children face revictimization by the welfare system and their due process rights are violated. Walter argues that the cost of this service should be borne by the state, rather than by individual counties, and that clear guidelines should establish what is expected of children's representatives. This would ensure more uniform application of the law, improve services to families in the system, and reduce disparity in the quality of representation seen across county lines.
1998 Jennifer R. Gavin, Child Welfare Law Curricula in Legal Education: Massachusetts' Untried Opportunity, 7
B.U. Pub. Int. L.J. 9 (1998).
Gavin highlights the need for child welfare curriculum in law schools in Massachusetts. The state is in dire need of effective lawyers in this field, and law students can benefit from interdisciplinary, hands-on experience while under the guidance of law professors. Students can learn both concrete skills (research, negotiation, case planning, etc.) and achieve more ephemeral clinical goals (imparting the obligation of service, understanding the impact of doctrine on peoples' lives, etc.) through participating in a legal clinic. Student attorneys could serve as counsel for children or parents in protective proceedings, counsel for foster parents attempting to adopt foster children, or representation of children in collateral matters (e.g., special education). Legal education can be structured as a direct services clinic within the law school walls, an externship program, or as a research center for practicing attorneys. The state and families in the child welfare system would ultimately benefit from the production of effective, enthusiastic, and dynamic attorneys from such programs.
1998 Martin Guggenheim, Reconsidering the Need for Counsel for Children in Custody, Visitation and Child Protection
Proceedings, 29 Loy. U. Chi. L.J. 299 (1998).
Guggenheim explores the basic principles behind providing lawyers for children and argues for a reconsideration of the necessity for and wisdom of providing lawyers for children. According to Guggenheim, representation of children is haphazard and amorphous, with little consistency seen across state, county, or even case lines. Some consistency has emerged only recently in the form of a majority belief that, whenever possible, a child's representative should play a traditional lawyerly role and refrain from interjecting his or her own judgment. When a child is unable or unwilling to express her wishes, the attorney should remain neutral, evaluate the child's interests from a set of objective criteria, or present multiple options to the court. Guggenheim also questions the advisability of appointing counsel to represent children in each of these cases, stating that allowing children to set the legal objectives may undermine the substantive law in family and child welfare fields.
1998 Kathi Grasso, A JUDGE'S GUIDE TO IMPROVING LEGAL REPRESENTATION OF CHILDREN, ABA Center
on Children and the Law, 1998.
This publication advocates for judges to act as leaders in improving child representation and specifies in what activities judges can and should participate. The guide establishes a judicial role in "identifying, educating and retaining effective children's attorneys," holding opportunities for continuing legal education, demanding adequate representation, and working to increase funding for system reforms. The guide also gives an overview of the importance of lawyers' roles in representing children as guardians ad litem, provides program models from different law offices and law school clinics around the country and points to further resources.
1997 Donald N. Duquette, Developing a Child Advocacy Law Clinic: A Law School Clinical Legal Education Opportunity,
This article serves as a general "how to" with regard to the formation and design of a law school child advocacy clinic. Duquette, founder of the University of Michigan Child Advocacy Law Clinic, discusses the rationale for such a clinical program, its educational objectives, and provides detailed advice for law schools contemplating the addition of a child advocacy clinic to their institution.
1997 John Gibeaut, Nobody's Child, 83 A.B.A.J. 44 (1997).
Gibeaut provides anecdotes from Chicago and Sarasota's child welfare systems, which have historically experienced large caseloads, incompetence from all sides, and poor outcomes for children. However, the murders of children in the mid-1990s provided a much needed wake up call to these systems. As a result, new judges have been appointed, attorneys received better training, and cases move through the judicial system with greater efficiency.
1997 Albert E. Hartmann, Note, Crafting an Advocate for a Child: In Support of Legislation Redefining the Role of
Guardian ad Litem in Michigan Child Abuse and Neglect Cases, 31 U. Mich. J.L. Reform 237 (1997).
In this note, the author advocates for reform within Michigan's child welfare system. He argues that the current state statutory scheme is ambiguous as to the role of the child's attorney, with directives that the attorney act simultaneously as the child's representative and as an advocate for his best interests. Hartmann supports a legislative proposal that would require children's attorneys both to represent their best interests and to make the child's wishes known to the court. When the attorney's determination of best interests is contrary to the child's wishes, the court has the discretion to appoint independent counsel for the child. To ensure the quality of representation that children receive, Hartmann argues that children's attorneys should receive additional training and be held to additional ethical standards, and encourages increased communication among child welfare professionals and further studies of the child welfare system.
1997 Suellyn Scarnecchia, An Interdisciplinary Seminar in Child Abuse and Neglect with a Focus on Child
Protection Practice, 31 U. Mich. L. J. Reform 33 (1997).
"Given the myriad...professionals involved in protecting children from abuse and neglect, legal practice in the field of child protection requires an understanding of the various disciplines these professionals represent." Professor Scarnecchia argues that such an understanding is necessary in order for the attorney to serve as a zealous advocate for her client. In hopes of creating this understanding in students at the University of Michigan, an interdisciplinary seminar in child abuse and neglect has been created. Professor Scarnecchia details the substantive content of the seminar, discussing specific issues that arise in protecting children. She explains that by using actual cases to illustrate how these issues appear in child protection cases, and how they are addressed by the various disciplines, the seminar has been able to maintain an emphasis on practice and practical skills. Choices of class materials, assignments, enrollment, and faculty are also detailed to encourage the development of such a program at other institutions.
1997 Lois A. Weinberg, Carl Weinberg, and Carol M. Shea, Advocacy's Role in Identifying Dysfunctions in Agencies
Serving Abused and Neglected Children, in 2 Child Maltreatment, Aug. 1997, at 212.
Weinberg, et al. performed a qualitative study which addressed how the various agencies that are responsible for providing services to abused or neglected children or children with disabilities fulfill their responsibilities to a population of foster children with disabilities.
1997 Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of Children and the Adversary
System, 52 U. Miami L. Rev. 79 (1997).
Family relationships underlie every child custody and child abuse proceeding. Our adversarial system is ill-equipped to respect, and is often detrimental to, these relationships. Instead of focusing on the child's best interests, the adversarial system inhibits access to information, alienates parties, and delays outcomes. For this reason, Weinstein argues for a mediation-based approach to these disputes. A collaborative approach will more effectively determine the child's best interests while healing and promoting relationships between all parties.
1996 Susan L. Brooks, A Family Systems Paradigm for Legal Decision Making Affecting Child Custody,
6 Cornell J.L. & Pub. Pol'y 1 (1996).
This article presents the "family systems" theory from field of mental health and analyzes the extent to which it is compatible with the existing framework for child welfare law practice. The family systems theory emphasizes the dynamics of interpersonal relationships and their contexts within the intimate space of the family. Appropriately applied to this field, the family systems theory would require all legal decisions in a child welfare case to be those least destructive to the continuity of family relationships. Currently, most child welfare paradigms maintain an "individual" approach in the form of the "best interest" standard, which is detrimental to the well-being of the child and family because it heightens conflict and inhibits dialogue. To apply the family systems approach, five guidelines should be adopted by practitioners in this field: (1) identify the members of the family system; (2) consider the mutual interests of all members; (3) maintain family ties and continuity wherever possible; (4) emphasize current status; and (5) focus on family strengths.
1996 Emily Buss, "You're My What?" The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham
L. Rev 1699 (1996).
Whether child advocates take on a "best interest" or "expressed interests" role, their clients, younger and older, are nevertheless frequently confused about the attorney's role in legal proceedings. This confusion stems from the child's lack of experience with the legal system, misinformation provided by other players in the system, the power disparity between adults and children, and the invasion of privacy inherent in the lawyer's participation in the case. It is this confusion that distinguishes representing children from representing adults, and therefore child advocates have an ethical duty to effectively communicate their role to their clients. This communication must allay the child's fears, clarify the attorney's role and obligations, and establish a relationship between client and counsel. The author argues that attorneys in either role must put honesty before effectiveness, and recognizes that an honest account of a "best interests" attorney's role may impair the information the attorney will receive from the child. To help a child better understand the attorney's role, it may be helpful for the child to attend court and view the attorney in action. Attending court can also help to alleviate some of the child's anxiety surrounding the legal proceedings.
1996 Linda D. Elrod, Response to the Conference: An Analysis of the Proposed Standards of Practice for Lawyers
Representing Children in Abuse and Neglect Cases, 64 Fordham L. Rev. 1999 (1996).
This article analyzes the relevance of the ABA Family Law Section's Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases to the Fordham Law School Conference on Ethical Issues in the Representation of Children. The Standards and Conference both advocate for the appointment of a child's representative in a traditional lawyerly role, which includes following the expressed wishes of the child and maintaining client confidentiality. The two groups also agreed that there is no set age for decision-making capacity, and children should be presumed to have capacity until otherwise proven. With regard to confidentiality, however, the Standards argue that the client is owed absolute confidentiality, while the Conference would permit a breach of confidentiality when the child is at risk of imminent death or substantial bodily harm. With regard to the role of judges in the appointment of child advocates, the groups agreed that judges should ensure that advocates are selected based on a set of objective criteria, are adequately trained and sufficiently compensated.
1996 Robert E. Shepherd, Jr. & Sharon S. England, "I Know the Child is My Client, But Who Am I?", 64 Fordham L. Rev.
1917 (1996).
After first surveying the history of children's representation, the authors attempt to define the varying roles that attorneys play in custody disputes and offer suggestions on how attorneys can effectively perform these roles. In doing so, the authors reference various state and national standards, as well as the Model Rules of Professional Conduct, for guidance. The article also discusses the varied methods of ensuring compliance with these standards, from malpractice litigation to the court's ability to reject the attorney's recommendations.
1996 Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64
Fordham L. Rev. 1857 (1996).
In this article, Wu addresses the conflicts of interest that commonly arise in the representation of a child during a child welfare case. First, Wu discusses how attorney-client privilege can be jeopardized when representing a child. He then demonstrates how representing multiple siblings, representing the child welfare agency while simultaneously representing the child, or representing both parents and their children creates an inherent conflict of interest. If the attorney is serving as a guardian ad litem, any of these conflicts can be resolved under the rubric of the child's best interests. However, Wu ultimately concludes that the most appropriate role for a child's attorney in welfare cases is that of the traditional attorney, including the rules of attorney-client loyalty and privilege.
1995 Leonard P. Edwards & Inger J. Sagatun, Who Speaks for the Child?, 2 U. Chi,. L. Sch. Roundtable 67 (1995).
This article is a survey of the expanding role of child advocates, which is defined as anyone who speaks on behalf of a child in a legal proceeding. The authors discuss the different types of advocates, varying roles they play, and the efforts to improve the quality of representation. In any proceeding where the child's significant legal interests are at stake, the child advocate should have full party status, and she must be permitted to address issues that affect the entire system. Advocates should be interested, well-trained, and have reasonable caseloads and access to investigative resources.
1995 Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and
Counseling the Child Client, 64 Fordham L.Rev. 1655 (1995).
The author argues that the power disparity between child-client and attorney is significant, and therefore the attorney's role must focus on the empowerment of the child. This will serve to protect the child's rights. Furthermore, "ethical issues in the representation of children [should] be resolved by considering the child client's need for empowerment." Under this model, paternalistic representation should be seen not only as inappropriate but also unethical, as it has a disempowering effect on the client. Instead, attorneys in child welfare proceedings should advocate only for the expressed wishes of the child,regardless of the child's capacity and maturity.
1995 American Academy of Matrimonial Lawyers, Representing Children: Standards for Attorneys and Guardians
ad Litem in Custody or Visitation Proceedings, 13 J. Am. Acad. Matrimonial Law. 1 (1995).
This article is a set of standards for attorneys and guardians ad litem who represent children in custody and visitation proceedings. These standards take the view that representatives should only be appointed on a case-by-case basis after such representatives have been requested or the court has determined that they are necessary. All attorneys and GALs in these proceedings should have specialized training in the representation of children. In appointing the attorney or GAL, the court should specifically enumerate the representative's duties.
The standards also take the position that it is the attorney or GAL's role to determine whether or not the child is capable of directing the representation, with a presumption that children over the age of twelve are capable. Where the child is incapable of directing the representation, an attorney is to take no position as to the preferred outcome for the case. A GAL should never make a recommendation to this effect.
1994 Katherine Hunt Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce
Proceedings, 15 Cardozo L. Rev. 1523 (1994).
Federle critiques the prevailing "children's rights" paradigm, which she sees as too focused on the incapacities of children and paternalistic in nature. Instead, the author argues, children should be viewed as having rights in such a way that commands respect for their views and values their independent worth as human beings. In the context of divorce proceedings, an adequate view of children's rights would abolish the "best interests" standard and mandate the appointment of a legal representative for the child.
1994 Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children's Perspectives and the Law, 36 Ariz. L. Rev. 11
Fitzgerald argues that vesting children with fewer rights than adults denies the personhood of children, impairs their welfare, and is arbitrary, at best. "Instead of dismissing children's perspectives as immature and hence inferior," the author argues, "the law should respect and appreciate children's perspectives as simply different." In part, this could be accomplished by granting standing and counsel to children in cases affecting their support and custody. Furthermore, the system as a whole could be radically improved by replacing the "best interests" fiction with an analysis of the child's interests, which should not be equated with either the parents' or state's interests.
1994 Robert V. Rodatus, Legal, Ethical, and Professional Concerns When Representing Children in Abuse Cases in
Juvenile Court, 45 Juv. & Fam. Ct. J. 39 (1994).
The author, a judge in a suburban Atlanta court, discusses the instances under which lawyer guardians ad litem are appointed, on either a mandatory or discretionary basis, in Georgia. GALs are most likely to be appointed in cases where there are allegations of physical and sexual abuse. GALs serve both as investigator and advocate to the court while working in the best interests of the child. The GAL must "stand in the shoes of the child and. . . weigh the factors as the child would weigh them if the child's judgment were mature and the child was not of tender years." In addition to the traditional attorney's duties, the GAL must also provide the court with a recommendation for a dispositional plan that is in the child's best interests.
1994 Marvin R. Ventrell, Rights & Duties: An Overview of the Attorney-Child Client Relationship, 26 Loy. U. Chi. L.J. 259
Ventrell provides a general overview of children's rights, as well as the legal and ethical duties of their representatives. To effectively represent children, an attorney in this role must act as a zealous advocate in much the same way she would for an adult client. The Model Rules of Professional Conduct, while applicable, need to be interpreted and adopted to particular concerns related to representing the child-client.
1994 CSR Incorporated, FINAL REPORT ON THE VALIDATION AND EFFECTIVENESS STUDY OF LEGAL
REPRESENTATION THROUGH GUARDIAN AD LITEM; Released by the National Center on Child Abuse and Neglect
in August 1994.
In the 1988 reauthorization of CAPTA, the U.S. Congress mandated that the National Center on Child Abuse and Neglect conduct a study of "the effectiveness of legal representation through the use of guardians ad litem and court appointed special advocates [CASAs]." The study documented three major program models-- 1) the private attorney model; 2) the staff attorney model; and 3) a CASA model. The effectiveness of the GALs was measured against five major roles proposed by Duquette in Advocating for the Child in Protection Proceedings (1990). Those roles are 1) fact finder and investigator, 2) legal representative, 3) case monitor, 4) mediator and negotiator, and 5) resource broker. The Executive Summary is available here. The full report is extensive and not yet available electronically. Anyone interested in the full report should contact QIC directly (qic-childrep@umich.edu).
1993 Leonard P. Edwards, A Comprehensive Approach to the Representation of Children, 27 Fam. L.Q. 417 (1993).
Judge Edwards acknowledges key obstacles to adequate legal representation for children, including deficient and inadequately compensated attorneys, inconsistent appointment of counsel, high caseloads, budgetary constraints, legal norms, and prevailing attitudes. To address these issues, Edwards recommends the creation of a child advocacy coordinating council (CACC) to promote the "development of comprehensive and coordinated system of representation for children." The CACC would comprise of bar associations, judges, volunteer child advocates, attorneys, and victim-witness support specialists. The organization would screen cases to determine the child's needs and assign appropriate representation, as well as coordinate between the legal system, those who represent children and the children and families who come before the courts. As a successful model, Edwards refers to the CACC in Santa Clara County, California, to show that, with commitment and resolve, measurable improvement can be achieved.
1993 Jonathan O. Hafen, Children's Rights and Legal Representation: The Proper Roles of Children, Parents, and
Attorneys, 7 Notre Dame J.L. Ethics & Pub Pol'y 423 (1993).
This article takes on a classical ethical dilemma in the representation of children: whose views should hold the most weight - the parent's, child's, or attorney's– in deciding what is best for the child? Hafen argues that the Model Rules of Professional Conduct should be revised to emphasize the parents' constitutional right to make decisions for their children, unless that right is forfeited through abandonment, abuse, or neglect of the child. Hafen pushes back against "children's liberation" and argues that children are generally not capable of determining what is in their long-term best interests.
1993 Shannan L. Wilber, Independent Counsel for Children, 27 Fam. L.Q. 349 (1993).
This article takes the position that appointment of separate counsel for children is a positive and necessary development. Under ideal circumstances, independent counsel should be appointed to represent children in any proceeding affecting their custody, placement or treatment. As a general rule, the attorney should advocate the wishes of the child--even if the attorney questions the correctness of the child's view. Only when the child is unable to articulate a reasoned preference should the attorney substitute a judgment for that of the client. The attorney should then advocate the position which she determines her client would take if the client were able to direct the litigation.
1990 Donald N. Duquette, ADVOCATING FOR THE CHILD IN PROTECTION PROCEEDINGS: A HANDBOOK
FOR LAWYERS AND COURT APPOINTED SPECIAL ADVOCATES, Lexington Books (D.C. Heath and Company)
Lexington, MA 1990.
Speaking to lawyers representing children, CASAs and policy makers seeking to establish organized offices in their locate, Duquette sets out five roles and tasks of the child advocate -- to function as a fact-finder, legal representative, case monitor, mediator and information/resource broker. He identifies ten dimensions of child advocacy that should guide the advocate at each stage of the child protection process. Using a case example he applies the ten dimensions to each procedure stage. The ten dimensions are: Investigation, Consultation, Assessment, Identifying the Child's Interests, Permanency Planning, Client Counseling, Decision making, Problem Solving and Mediation, Identifying Action Steps and Following up on court ordered or agreed actions.
This book formed the conceptual framework for the first national evaluation of child representation as mandated by Congress and implemented by CSR Associates in coordination with the U.S. Children's Bureau, "Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian ad Litem, distributed by the National Clearinghouse on Child Abuse and Neglect Information, Washington, D.C. 1995. (Available also in this QIC Literature collection.)
1989 Kerin S. Bischoff, The Voice of a Child, Independent Legal Representation of Children in Private Custody
Disputes When Sexual Abuse is Alleged, 138 U. Pa. L. Rev. 1383 (1989).
Bischoff's thesis is that "allegations of sexual abuse made during custody disputes raise a particular need for independent legal representation of children." She explains that, to date, most states provide for such independent representation in disputes between the state and parents, but leave the child's independent representation in private custody disputes to judicial discretion. However, allegations of sexual abuse should evoke the "special concern" necessary under a discretionary standard to compel the appointment of a vigorous, independent representation of the child to present the full facts of the case and the child's interest to the judge. This is because the child's welfare is potentially in jeopardy depending on his placement and since the child's interests are not necessarily aligned with his parents'. This representative should be an advocate who advances the child's position, rather than imposing independent judgment or incorporating the parents' concern into his case.
1989 Donald N. Duquette, Independent Representation of Children in Protection Proceedings, in Hudson & Gallaway,
Eds., STATE AS A PARENT, Kluwer Academic Publishers, The Netherlands (1989).
This article summarizes the research (to date) on the independent representation of children. The author describes five studies (in Florida, North Carolina, New York, Michigan and a National HHS study) demonstrating factors that affect the effectiveness of child advocates, including training, experience, juvenile law knowledge, racial matching, recognition of the child's voice in choices in defining the role of child advocates and suggests approaches to develop "meaningful empirical measures of advocacy." Duquette explains that "best interests" is too subjective of a standard and therefore recommends more tangible measures, such as the protection from physical and emotional harm; the provision of food, clothing, shelter, guidance and supervision; continuing to live with parents if possible; an expedient resolution of the case; familiar placement; and continuing contact with family.
1987 Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical
Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Reform 341 (1987).
The authors studied the effects of child representatives -- attorneys, law students, and lay volunteers -- who had been trained in zealous advocacy that served the child's legal and non-legal interests, and who provided continuous representation throughout the dependency proceedings. The case outcomes under these representatives were compared with those of a control group of attorneys who had no special training and did not serve for the duration of the case. Results showed that the trained representatives of all three types utilized a different approach in their work, which resulted in faster case closure after fewer court hearings and with fewer removals.
1987 Robert F. Kelly & Sarah H. Ramsey, Monitoring Atttorney Performance and Evaluating Program Outcomes: A Case
Study of Attorneys for Abused and Neglected Children, 40 Rutgers L. Rev. 1217 (1987).
Attorney performance in child abuse and neglect proceedings is notoriously deficient. The low profile of these cases and powerlessness of the clientele, along with low expectations put forth by the ABA, contribute to a lack of review of attorney performance. Effective monitoring can only occur when detailed standards for the profession have been established. Evaluation of child welfare attorneys will be difficult because "desirable outcomes" are not clear and randomization of the study will be challenging. To promote effective evaluation, review should be impartial and not rely on reporting from others. Finally, incentives should be established to encourage compliance and self-monitoring among practitioners in this field.
1986 Joseph Goldstein, Anna Freud and Albert J. Solnit, IN THE BEST INTERESTS OF THE CHILD (1986)
The third and final book in the trilogy provides guidance to lawyers appointed to children in child welfare proceedings. Children should not be represented by separate counsel until the court determines that the child was maltreated and even then, the child's lawyer should be limited to representing a child's wishes and needs in the context of the child's current situation within legal and professional boundaries. In the Best Interests of the Child discusses "cultural competence," which is defined as recognizing personal biases, eliminating personal values and experiences from professional judgment, and refraining from deciding what is best for the child generally. Collaboration with experts in other fields is encouraged to determine the true interests of a specific child-client.
1984 Martin Guggenheim, The Right to Be Represented But Not Heard: Reflections on Legal Representation for
Children, 59 N.Y.U. L. Rev. 76 (1984).
The author notes that attorneys for very young children (those too young to control their attorney or express their wishes) generally play one of two roles in the representation of their clients: as an advocate for the child's best interests or as a neutral investigator. According to Guggenheim, neither of these roles is appropriate or beneficial i the adversary process. Best interests attorneys inevitably insert their personal views into the proceedings; investigatory attorneys interest with the parents' right to privacy. Though Guggenheim acknowledges that the value of a child's attorney varies upon the type of legal matter, he argues that, on the whole, the appointment of a child's attorney is not generally necessary and should be reconsidered in the majority of cases.
1984 Robert F. Kelly & Sarah H. Ramsey, Legal Representation of Parents and Children in Child Protection Proceedings:
Two Empirical Models of Acquisitorial Processes and a Proposal for Reform, 89 Dick. L. Rev. 605 (1984).
To improve the quality of representation of children, the link between the process by which legal representation is acquired and the subsequent impact of that representation is examined. In a case analysis of the child welfare system in North Carolina, the authors found that representation of children followed the "therapeutic" model, and representation generally had a negative or no impact on the results achieved for the child. Conversely, representation of parents followed the "market" model, and this model was significantly more effective in producing favorable results for the client. The authors conclude that the therapeutic model of representation is deficient. They suggest that child attorneys receive higher financial compensation for their services, spend more hours on each case, and receive better training regarding their unique role in the child welfare system. To facilitate these reforms, an independent agency should be developed and charged with the provision and monitoring of legal services to children.
1983 Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making
Capacity, 17 Fam. L.Q. 287 (1983).
In both state and federal statutes, definitions of the guardian ad litem's role are ambiguous and murky. Ramsey argues that, in child protective proceedings, the attorney's role is to represent the child's wishes. This model of representation best guards against the imposition of cultural, class, and race bias, and ensures that the child's views are heard. A child is capable of making decisions, says Ramsey, "[i]f the child has the mental and emotional abilities needed to make a decision which has a reasonable possibility of accuracy…." There should be a rebuttable presumption that children aged seven and older are capable of making reasoned decisions.
1982 Robert Kelly & Sarah Ramsey, Do Attorneys for Children in Protection Proceedings Make a Difference?,
21 J. Fam. L. 405 (1982)
This article is a case study of guardians ad litem in North Carolina. Using an empirical analysis, the authors tracked whether or not the use of a guardian ad litem had an impact on the outcome of child welfare cases. "Success" was measured by the attorney's ability to prevent removal and facilitate the child's return home.
Overall, the study found that the use of guardians ad litem had no effect on the initial removal decision. Favorable outcomes were, however, directly tied to the amount of time the attorney spent on each case. Additionally, in instances where the child and the attorney were of the same race, removal was less likely to occur. Where the attorney had relatively little experience in child welfare law or was of a young age, the child-client was more likely to remain in the home. Further, the study found that the use of a guardian ad litem tended to delay the child's return home by 35%. Additional time devoted to attorney negotiation was directly correlated with a decreased likelihood of parent and child reunion. The article concludes by recommending increased compensation, training, and professional recognition for attorneys working in this field.
1979 Joseph Goldstein, Anna Freud and Albert J. Solnit, BEFORE THE BEST INTERESTS OF THE CHILD (1979)
The second book in the trilogy responds to concerns arising from the controversial positions adopted in Beyond. In addition, it addresses "why and under what circumstances should the state be authorized to invade family privacy and to overcome the presumption of parental autonomy."
The authors begin by building on Beyond's convictions and favoring a policy of minimum state intervention: "[A] child's need for continuity of care by autonomous parents requires acknowledging that parents should generally be entitled to raise their children as they think best, free of state interference." The authors focus on preserving three fundamental elements of family integrity: privacy, parental autonomy, and a child's right to have autonomous parents.
First, child placement legislation must be precise enough to provide fair warning for parents and children and to restrict the power of state officials to project their personal child-rearing preferences and prejudices. Second, the authors discuss the need for guidelines specifying what constitutes probable cause for state inquiry and sufficient cause for the state to seek modification or termination of a parent-child relationship. Nothing but "the clearest provable examples of child maltreatment" will suffice; the authors thus discourage intervention based on emotional neglect, which they believe is frequently misinterpreted. Despite the possibility of risk to children falling outside this scope, Before calls on the state to err on the side of non-intrusion. The third step refers back to Beyond for guidelines for determining which of the available alternative placements is the least detrimental to the child.
1976 Brian G. Fraser, Representation for the Abused and Neglected Child: The Guardian Ad Litem, 13 California
Western Law Review 16, (1976)
This seminal and influential article on child representation was one of the first on the subject after President Gerald R. Ford signed the Child Abuse Prevention and Treatment Act of 1974 into law on January 31, 1974, an act that marks the beginning of the modern period of child welfare law and child representation. Fraser outlines the context of rising social awareness about child abuse and neglect and the evolving legal responses. He says that, in every child abuse case that results in a juvenile court proceeding, children need independent representation because their interests are not adequately represented by the other parties to the case. Fraser argues that the guardian ad litem is the most effective form of independent representation for children in protection proceedings and that the GAL should be a lawyer. "If the purpose of an appointment is to protect the child's interests, then it would seem axiomatic that such an appointment be made to one who understands the 'system' and how it can be used most effectively for the child's interests." The GAL is to protect the needs and interests of the child in a situation in which the parents and the state may have other interests. To fulfill his obligations to the child, the guardian ad litem must actually assume four separate roles - that of an investigator, an advocate, a counsel, and a guardian.
1973 Joseph Goldstein, Anna Freud and Albert J. Solnit, BEYOND THE BEST INTERESTS OF THE CHILD (1973);
(First in a trilogy by these authors, republished as one volume in 1996.)
A trilogy of books by Goldstein, Freud and Solnit took the child advocacy community by storm in the mid-seventies to mid-eighties and had an enormous impact on child welfare policy throughout the united states and abroad. Jane Spinak aptly characterizes this period as the "gestational period of lawyering for children", but observes that some of the important lessons of those terrific books are still to be learned. (Jane M. Spinak, "When did lawyers for children stop reading Goldstein, Freud and Solnit? Lessons from the twentieth century on best interests and the role of the child advocate." 41 Family Law Quarterly 393 (Summer 2007). These three books are foundational for child welfare law and for legal representation of children. They are a must-read for any serious scholar in the field.
The first book, Beyond the Best Interests of the Child, focuses on contested child placement. After a brief overview of the psychology and development of children's early attachments to parental figures, the book introduces different types of parent-child relationships (common law adoption, adoption, foster care, biological parents), contending that the identity of the psychological parent matters more than that individual's label. Psychological parents love and meet the needs of the child, and become the object of the child's deepest feelings and attachment.
The child's well-being, i.e. the best interests of the child, must be determinative over parents' rights and desires or state agency objectives in contested placement matters. The book introduces the central concept of "a child's sense of time". What is paramount in decision-making is expediency, not necessarily certainty. Permanent placement should be determined with "no more delay than that required for reasoned judgment." Equally important is maintaining consistency for the child, so that she does not become attached and removed from psychological parents after the initial state intrusion. In light of these priorities, the authors argue, noncustodial parents should have no legally enforceable right to visit their children, based on the theory that children become disoriented by the breakup of their family and need the opportunity to settle down with one person in authority upon whom they can rely for answers to questions and protection from external interference. It is then up to the custodial parent to decide when and how often visits with the noncustodial parent occur, according to the child's needs and desires, without the threat of facing contempt of court.
The authors warned decision makers in child protection proceedings that they lacked the ability to make long-term predictions on what is best for the child and, to the contrary, were really only able to determine the least detrimental alternative for the child. Beyond establishes the principle that specific legal guidelines, rooted in psychological evidence, must exist to promote not "the best interests of the child," but "the least detrimental available alternative for safeguarding the child's growth and development… in accord with the child's sense of time and on the basis of short-term predictions given the limitations of knowledge, his or her opportunity for being wanted and for maintaining on a continuous basis a relationship with at least one adult who is or will become his psychological parent.
A collaboration between the U.S. Children's Bureau and the University of Michigan Law School.

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