Now in Legal Rebels:
Posted Apr 01, 2007 12:14 pm CDT
Acting on the boy’s wishes, the lawyer argued to the juvenile court judge that the boy and his siblings should not be returned to their father. The judge allowed the children to continue living with a foster family, where they were safe and thriving, says Gail Chang Bohr, describing the dependency case handled by a volunteer attorney at the Children’s Law Center of Minnesota in St. Paul, where she is executive director.
By itself, the outcome of the case may not be particularly unusual. What is remarkable is the client lawyer relationship between the 9 year old boy and the lawyer who obtained the result the boy was looking for.
Just a few years ago, the boy wouldn’t have been asked to weigh in on one of the most important decisions affecting his life–whether he should remain in foster care or be returned to a father who had abused him and his siblings. But in this case, he did have his own lawyer. And because the lawyer presented the boy’s point of view in court, the judge had a better understanding of the potential consequences of his decision about where the boy and his siblings should live.
The St. Paul dependency case is part of a larger trend toward recognizing that children are entitled to direct legal representation in a variety of proceedings that affect them. Bruce A. Boyer, a law professor at Loyola University in Chicago, says the drive to give children direct legal representation truly is a youth movement.
There has been an awakening, says Boyer, “that if we’re going to call ourselves children’s advocates, we have to listen to what our clients are saying. They tell us they want their own lawyer, and they want that person to act like a lawyer–to represent their point of view. We’ve started to come around to realizing that a kid mature enough to have a point of view is mature enough to have their voice heard by the court.”
Giving children more direct involvement in judicial proceedings affecting them was a key recommendation coming out of a conference held in early 2006 to help develop the Youth at Risk Initiative that is a priority of ABA President Karen J. Mathis of Denver. The conference focused primarily on the legal needs of young people between the ages of 13 and 19.
(For more information on the ABA Youth at Risk Initiative, go to abanet.org/initiatives/youthatrisk.)
“Lawyers should examine how meaningful involvement of teenagers in all hearings affecting them can be promoted,” states a report issued after the conference, “so that court proceedings become a positive participatory experience for vulnerable youth–in dependency, custody, family violence and other cases.”
Recognizing Due Process
In recent years, efforts to provide direct representation to children have focused largely on dependency proceedings to determine whether children should stay with their parents, or be assigned to foster homes or some other guardianship arrangement.
Since 1980, federal law has required that children who are the subject of dependency proceedings have representation, but there has been little consistency from state to state–or even from one county to another–as to the role of the child’s representative. In some states, untrained volunteers served as guardians ad litem who made recommendations to the court based on any criteria they felt relevant. Other states mandated that only lawyers could serve as guardians.
In almost every jurisdiction, the guardian made recommendations to the court based on his or her perception of the child’s “best interests” and was treated as a witness, not the representative of a party to the proceedings. In many cases, the children themselves were never brought to court because of notions that their presence wasn’t necessary, that they would be bored or that they shouldn’t hear some of the testimony.
But the best-interest standard proved to be cumbersome because it can be so hard to define and apply. In recent years, lawyers and others who work in the child welfare system have advocated for children to have full party status and to be represented by lawyers who will advocate for them to the same extent as counsel for other parties.
The best-interest standard “is not as objective as it sounds,” says Bohr. “In a dependency proceeding, every party has a lawyer–except the kid. Children need lawyers who will be lawyers for them.”
Now, children in many jurisdictions are treated as parties in cases determining whether they will be returned to parents or other family members who are accused of abuse or neglect. Children’s views are being advocated by lawyers who give judges another perspective and more vital information in addition to what the court hears from parents and their attorneys on one hand, and social workers and lawyers for the state on the other.
“What happens in court will fundamentally alter the child’s life,” says Miriam A. Krinsky, special director of policy and reform initiatives at the Children’s Law Center in Los Angeles and a member of the ABA Commission on Youth at Risk. “Their future, where they will live and go to school, their relationship with siblings–everything is on the line for these kids.” (The two Children’s Law centers referred to in this story are not affiliated with each other.)
Krinsky recognizes that the judge retains ultimate authority to decide a case. “Nobody’s handing kids the right to decide for themselves,” she says. “But it’s critical to their well being and to the process that they be heard.”
Krinsky and Bohr say much of the impetus for this changing approach to representing children in dependency proceedings came from the U.S. Supreme Court’s landmark 1967 ruling in In re Gault, 387 U.S. 1, that children charged with committing crimes–delinquent acts in juvenile court terminology–are entitled to legal representation and other due process protections.
“In re Gault really did open up thinking that kids have a right to lawyers,” Bohr says. The case supports the proposition that due process protections should apply to children who may be removed from their homes, she says.
Nevertheless, at least one recent study suggests that the apparent support for giving children direct representation has not necessarily changed how cases actually are handled in court.
Some 95 percent of child welfare professionals–among them lawyers, judges and social workers–who participated in a 2006 study by the Pew Commission on Children in Foster Care (part of the nonpartisan Pew Charitable Trusts) said children in foster care should be allowed to attend at least some of the court proceedings on their cases. But some 30 percent of children in foster care who took part in the study reported that they had never been to court for a hearing on their cases.
Boyer says courts should take children’s schedules into account, just as they accommodate the schedules of grown ups.
“Juvenile courts, like most courts, are entrenched in tradition,” says Boyer. “If you have a history that doesn’t value kids’ participation, it’s easy to just perpetuate that. But it is possible to hold these hearings in the late afternoon after school and to provide transportation. It’s a matter of will to a large extent.”
Bohr says children often have better instincts about what might be best for them than the adults deciding their fate.
“Kids know who loves them,” she says. “Sometimes that’s the parent, and sometimes it’s someone else that they really are better off living with, be that with some other relative or another foster situation.”
Sometimes, Boyer says, the child will want a result that the lawyer thinks is a bad idea. “That’s when you need to be a persuader. You ask questions, you probe. You try to show them why you disagree,” says Boyer. “At the end of the day, like any case, you make choices about how far you’ll go with advocacy. But you also remember that it’s the judge’s job, not yours, to decide.”
Boyer also says judges have adequate authority to accommodate kids’ desire to be heard in court while protecting them from some of the harshest elements of the case, such as testimony by social workers about parents’ shortcomings.
“That’s what judges do. They exercise discretion,” Boyer says. “In some cases, it may be wise to hold certain hearings outside the presence of the child. But there is also room to make sure the kids’ voices are heard.”
Lawyers In Short Supply
Meanwhile, the legal profession is struggling with a logistical barrier to adequately representing the interests of children in dependency proceedings and other cases: finding enough well trained attorneys to do the work.
Boyer says more well-trained lawyers–both pro bono and paid–are needed to help the juvenile justice system work effectively. He cautions against “dabblers”–lawyers who think handling a juvenile case or two on a pro bono basis will be easy, but who may end up doing more harm than good. Boyer notes that bar associations, children’s law centers, law schools, public guardians’ offices and similar organizations often provide thorough training to interested, committed lawyers.
Part of the problem is a matter of finances for lawyers in the field.
In 2005, the ABA, the Children’s Law Center of Los Angeles and the National Association of Counsel for Children conducted a survey of more than 300 juvenile dependency attorneys in 43 states to find out why so many of them leave their public interest jobs after only a few years. The most common response was that the lawyers could not afford to repay law school loans on their public interest salaries. The study found that more than 30 percent of the lawyers had at least $75,000 in student loan debt when they graduated from law school. Another 20 percent had between $50,000 and $75,000 in school debt.
In 2006, a bill was introduced in the U.S. House by Rep. Adam Schiff, D Calif., that provided for up to $6,000 in loan forgiveness per year to juvenile dependency attorneys who agree to remain in their jobs for at least three years.
The bill, called the Fostering Our Future Act, also would give grants to states to help pay for legal representation for children in foster care and require the Government Accountability Office to track how the money is spent and measure results. Schiff’s bill stalled, but his office says he intends to reintroduce it at some point during the current 110th Congress.
Boyer says efforts to measure the success of providing legal representation to children in dependency cases would be valuable. “There’s a direct line between finding ways to engage kids in cases about their futures and positive outcomes in those cases,” he says.
Caught In the Web
Child advocacy experts say dependency matters are just one element in a web of interrelated issues that put young people at risk.
Even if a child preferred a foster home placement to returning home, for instance, the foster system may not be a cure all. Studies suggest that youths coming out of a foster background may be at a higher risk for winding up in delinquency proceedings than other children, and may face upheaval in what schools they attend and other aspects of their lives.
Dwight L. Smith of Tulsa, Okla., who chairs the ABA Commission on Youth at Risk, acknowledged these concerns at a program held in February during the association’s midyear meeting.
Smith said two of the commission’s key “assertions” are that too many children are being needlessly pushed into the criminal justice system when other alternatives exist for addressing their needs, and that more emphasis should be given to preventive programs that assist troubled youths.
Smith said the commission also holds the view that “children need champions. Lawyers can do that.”
The report from the 2006 Youth at Risk Initiative Planning Conference also emphasizes greater efforts by the legal profession to provide effective representation for children charged with status offenses (acts that are illegal because of the offender’s age) and delinquent acts (crimes if committed by adults). More legal representation also is needed for “crossover” youths involved in both the dependency system and delinquency courts and those who are “aging out” of foster care as they reach the age of 18, states the report.
“Youth in trouble are entitled to high quality legal representation that can address competently the full gamut of issues affecting them,” the report states. “There is a need for significant expansion in the number of well trained lawyers representing youth in court.”
One of the reasons for concern about status offenses is that many studies, including a report issued by the U.S. Department of Justice in 2005, indicate that children who repeatedly commit them in the pre teen and early teen years are more likely to commit delinquent acts later on. Typical status offenses include truancy, curfew violations, underage drinking, and running away from home.
According to the Justice Department, some 400,000 minors were arrested across the United States for status offenses in 2004, the most recent year for which information is available. That figure represents about 18 percent of all juvenile arrests.
“That’s 400,000 opportunities to put families back together, 400,000 cries for help from kids and families,” said ABA President Mathis in January at a conference on status offenders that was co sponsored by the association, the Justice Department and the U.S. Department of Health and Human Services.
One of the key issues addressed at the conference is the tendency of some jurisdictions to routinely place kids picked up for status offenses in secure facilities designed for delinquent youths. The U.S. Juvenile Justice and Delinquency Prevention Act of 2002 generally prohibits states seeking federal grants for status offender programs from holding status offenders in secure facilities, but it still happens because many jurisdictions simply don’t have alternatives, Mathis said.
“Juvenile status offenders live in the twilight world of the juvenile justice system,” said Mathis. “They aren’t a fit for the abuse and neglect system or the delinquency system.”
A Holistic Approach
Many states allow all social services to be suspended for a child once he or she enters the delinquency system because the child is now under the jurisdiction of a different branch of juvenile court. In many cases, there is little continuity of information about the child’s background and prior services since youths charged with delinquencies often are represented by public defenders and appear before different judges than the ones who may have presided over their dependency and status offense matters.
“Kids in child welfare who get in trouble need advocates to pull together the agencies responsible for providing services in a holistic way,” says Pat Arthur, a senior attorney at the National Center for Youth Law in Oakland, Calif.
California and some other states are making efforts to better integrate dependency and delinquency courts with an eye toward rehabilitation of juvenile offenders. A bill pending in the California General Assembly would mandate sharing of information between child welfare authorities and delinquency defense attorneys, and give delinquency court judges access to child welfare system records.
Krinsky of the Los Angeles Children’s Law Center says a key provision of the bill would allow youths to continue receiving such services as mental health counseling without fear that information provided to counselors could be used against them in delinquency proceedings.
In Washington, a program called TeamChild assigns a lawyer, a social worker and other professionals to each child with the mandate to advocate for the services necessary to support the child, Arthur says.
“It’s about getting the kids the help to address the underlying causes of delinquent behavior, such as mental health issues, special education needs and substance abuse rehabilitation,” she adds.
Other states approach the crossover issue more informally. In Minnesota, a delinquency defense attorney who learns that a client is a ward of the state and is represented by the Children’s Law Center often will call the center to let the child’s dependency attorney know about the arrest, says the center’s Bohr. In those cases, the defense attorney and the dependency lawyer are able to compare notes about the child, says Bohr, and the result is that judges have a fuller picture and can make informed decisions about how best to pursue rehabilitation for the child.
Children’s advocates say a proposed amendment to the McKinney Act, a federal law that outlines the rights of homeless and transitory youths, also would benefit foster children. A provision of the act provides that a homeless student, once enrolled in a particular district, has the right to continue to attend that school even if no longer a resident of the district, so long as he or she does not have a permanent home. Under the act, those children are entitled to free transportation to the school for at least the remainder of the school year.
Under the proposed amendment, the McKinney Act protections would be extended to foster children who move from one foster placement to another.
The amendments represent another piece in the broader effort among lawyers and other child advocates to bolster services for youth at risk, says Arthur.
Without such efforts, Arthur says, “We’re all going to pay the price for kids who are not only neglected by their families, but neglected by a system that’s supposed to help them deal with the hand they’ve been dealt by life.”