Sunday, July 15, 2007

Legal representation for young people in the child welfare system

The United States spends one hundred billion dollars each year on the protection of children. There are six million allegations of abuse and neglect annually, leading to approximately 1500 deaths each year.

An estimated 70% of children who enter the child welfare system wind up in long-term foster care until they are legally emancipated. Their childhood is largely spent going in and out of various placements, depending upon what court proceedings determine is in their “best interests.”

The American Bar Association defines a child’s attorney as: "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due to an adult client."

Children in the child welfare system have a vested interest in their personal safety, as well as a right to be provided with safe living conditions --- and these fundamental liberty interests are separate and distinct from the interests of parents, guardians or the state.

Unfortunately, children in abuse and neglect hearings often do not receive quality legal representation that allows them equal access to justice so that their voices are heard in a court of law.

- In 1967, the Supreme Court first recognized children’s right to counsel during legal proceedings.

- In 1974, Congress passed the Child Abuse and Neglect Prevention and Treatment Act (CAPTA), mandating that states appoint a guardian ad litem for children who are subject to abuse and neglect proceedings.

Court-appointed special advocates (CASA) and lay Guardians Ad Litem (GAL) can be valuable sources of support for young people, but they cannot substitute for independent counsel for the child.

- In 2006, First Star conducted a nationwide analysis of child representation laws, which revealed glaring anomalies in the legal representation provided for children.

According to First Star’s National Report Card on Legal Representation for Children, there are glaring anomalies in the legal representation provided for children.

While some locations do a good job, most do not, and the quality of assistance provided for children depends largely upon the zip code in which the child happens to live. In some cases, economically disadvantaged states do a better job than more affluent ones.

Meanwhile, because “Best Practices” are not shared with the vast majority of the country, it is as if they did not exist. Due to a lack of oversight and shared expertise, individual jurisdictions do not learn from the successes and failures of their peers.

Minimal direction by federal statutes has allowed states to interpret the law and construct their own models of practice. The duties and responsibilities of attorneys for children are not clearly defined. States don’t even use the same statutory language.

I agree with the authors of this study, who believe that each state should:
1.) Provide a competent, independent attorney for every child in child welfare proceedings.

2.) Mandate child advocacy training and hold child attorneys accountable
3.) Require that this attorney advocate for the child in a client-directed manner
4.) Give the child notice and allow the child to be present at legal proceedings
5.) Specify that juveniles have the right to continuous counsel by the same lawyer at all proceedings

I share their hope to initiate a national Call to Action, promoting laws to require consistency in providing trained, qualified, client-directed legal counsel to child victims throughout the nation.

We need to identify and highlight Best Practices across the nation regarding legislative, professional, judicial, sociological and governmental behavior towards abused and neglected children.

For more information, and to see how your state measures up, please visit: 

First Star’s National Report Card on Legal Representation for Children, 2006.
Bob Fellmeth, Child Rights and Remedies, 2002.

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So sad, but not suprising, to see my state gets an F.
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