Transcript WHAT SHOULD REPRESENTATION FOR CHILDREN LOOK LIKE?

WHAT SHOULD
REPRESENTATION FOR
CHILDREN LOOK LIKE?
Child as a Party in Deprivation Proceedings
Discussion
Emory University School of Law
Hosted by:
The Child Placement Project
Office of the Child Advocate
THE COMPETING MODELS:
THE BEST INTEREST MODEL
Or
THE ATTORNEY-CLIENT MODEL
HISTORICAL CONTEXT
The Concept of Child Protection Laws is
Relatively New and Still Evolving
Or
Just Because We Do It That Way Now Does
Not Make It Right
PRE-GAULT
(1870-1967)
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Child Savers Movement
Child Protection Acts
Informal Inquiry into Parental Guilt
Judge Assumes Role of Parens Patriae
Summary Commitment Power
No Due Process
Child not a Party & Not Represented
No reviews by Court
Creation of Juvenile Courts
POST-GAULT
(1967 to Present)
Recognized Child as a Party and Right to
Counsel in Delinquency Proceedings
 Dispositional Hearings
 Review Hearings
 Continuing Jurisdiction to Modify Orders
 Promoting Family Preservation, Reasonable
Efforts, & Kinship Foster Care
 Opened Door for Discussion of Legal Rights
of Children in Abuse & Neglect Cases
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THE BEST INTEREST GENERATION
1974 Federal Child Abuse & Treatment
Protection Act (CAPTA)
 Court Appointed Special Advocates (CASA)
 CAPTA promoted by CASA
 CASA & GAL Represent Best Interest of
Child
 So Who Represents Legal Interests of
Child?
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WHAT IS GAL/CASA
Appointed by and works for the Court
 Independent Voice
 Not bound by confidentiality
 Makes recommendation to court using
best interest model
 May be called as witness and crossexamined by the parties
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THE NEXT GENERATION:
The Child as a Party to the Case
PARTY DEFINED
All persons who are directly or
consequentially interested in the event of
the suit should be parties.
Gormley v. Wilson, 176 Ga. 711, (168 S.E. 568)
See also Berry v.Slappey et al. 229 Ga. 109 (189 S.E. 2d 394)
HOW IS THE CHILD INTERESTED?
The child has an interest in her own life
and its care and well-being;
 The child has an interest in liberty and not
to be removed from his or her parents
without showing by competent evidence
and proper standards of proof that such
removal is warranted;
 The child may be bound by a court’s
judgment.
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RIGHTS OF A CHILD PARTY
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Represented by Counsel
Present evidence
Present in court (with limitations by natural state
& development), or at least made available to
counsel during proceedings.
Cross-examine adverse witnesses
Consent
Appeal
Wilkins v. Ga. DHR, 255 Ga. 230, 337 SE2d 20 (1985), which
defines the rights of a party as used in 15-11-6 (b)
WHAT DOES GEORGIA
LAW SAY?
O.C.G.A. 15-11-6 (b)
Counsel must be provided for a child not
represented by the child´s parent, guardian,
or custodian. If the interests of two or more
parties conflict, separate counsel shall be
provided for each of them.
OCGA 15-11-9 (b)
The court at any stage of a proceeding under
this article, on application of a party or on its
own motion, shall appoint a guardian ad litem
for a child who is a party to the proceeding if
the child has no parent, guardian, or custodian
appearing on the child́s behalf or if the interests
of the parent, guardian, or custodian appearing
on the child́s behalf conflict with the child́s
interests or in any other case in which the
interests of the child require a guardian.
OCGA 15-11-98 (a)
In any proceeding for terminating
parental rights or any rehearing or
appeal thereon, the court shall
appoint an attorney to represent
the child as the child´s counsel and
may appoint a separate guardian ad
litem or a guardian ad litem who may be
the same person as the child´s counsel.
Where the interest of the child is adverse to
that of the parent there can be no waiver of
counsel by the parent. Under our juvenile
code, all parties, including the child,
should be represented by an attorney.
McBurrough v. Department of Human
Resources, 150 Ga. App. 130; 257 S.E. 2d 35
(1979)
CONSTITUTIONAL
INTERESTS
Assuming arguendo that children do not
possess a statutory right to counsel, do they
nonetheless possess a liberty interest
sufficient to guarantee protection under the
due process clauses of the Georgia and
United States Constitutions?
KENNY A. v. SONNY PERDUE, et al.
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Child’s interest in his or her own safety, health,
and well being;
Child’s interest in maintaining the integrity of the
family unit & having a relationship with the
parents;
Child’s interest to be protected from abusing and
neglectful parents;
Child’s interest to be protected from an
erroneous decision to terminate parental rights;
Child’s interest in his or her treatment by the
state while in their custody.
CHILDREN’S INTEREST ARE AT
RISK & REQUIRE COUNSEL
Children at risk of state custody are subject to
placement in residential and institutional
facilities that significantly restrict physical liberty.
 The procedures are not adequate to protect the
children from the erroneous decisions of a judge
or DFCS that can adversely affect the safety and
welfare of foster children.
 The state’s interest as parens patriae supports
the child’s right to counsel to protect the health
& welfare of the child.
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WHAT ARE CLIENT-DIRECTED
ATTORNEYS
Provides legal services to the child;
 Gives undivided loyalty to the child;
 Is bound by attorney-client privilege;
 Must be a zealous advocate for the child;
 Advocates the child’s position regardless of
best interest concerns;
 Bound by Rules of Ethics of the State Bar
of Georgia.
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BEST INTEREST MODEL IS
NONSENSICAL
Best Interest is the standard which
controls every party’s argument regardless
of how different the position between the
parties;
 The Bar does not need to be reminded of
the best interest standard in deprivation
proceedings;
 The judge decides what is in the best
interest, not the Guardian Ad litem.
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DELINQUENCY LAW COMPARED
If we have concluded by legislative
enactments to permit children at age 13
to be incarcerated for life, are they not
capable of assisting their counsel in
deprivation proceedings and being seated
at counsel table?
CUSTODY LAW COMPARED
Suppose Sue is neglected by her mother. Sue’s
grandmother may pursue a private custody action in
the Superior Court. Georgia law mandates that a
Superior Court judge shall consider the desires of a
child at age 11. On the other hand, if Sue was
removed by DFCS, the likelihood of Sue’s position
being heard in Juvenile Court is lessened under a
GAL/CASA model. Therefore, how does one reconcile
a different level of child participation in a case
involving the same child, same contestants, same
facts?
RECOMMENDATIONS FOR
DISCUSSION
Change the juvenile code to reflect the differing
roles of GAL and Client Directed Attorneys in
incapacitated adult proceedings. OCGA 29-4-11
(c)
 All children shall be appointed legal counsel, or in
the alternative for children 13 years of age and
older.
 Promote CASA in all courts and to serve as an aid
to the court to promote reasonable efforts,
monitor parental and state compliance with court
orders and case plans, and conduct social studies
to expedite the placement of children in the most
family like setting.
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