States urged to appoint lawyers for children

NEW YORK – Fifteen states, including Maine, get failing grades on a first-of-its-kind report card assessing the legal representation provided to abused and neglected children as courts make potentially fateful decisions about whether to separate them from their families.

The report, being released at a Capitol Hill briefing Tuesday by the Washington-based child advocacy group First Star, is sharply critical of states which do not require all children in these proceedings to be represented by their own attorneys.

It also says more states should join the 17 that require lawyers in these cases to represent the child’s expressed wishes and ensure that those preferences are heard in court.

“In these proceedings the family of a child can be created and or destroyed based on the determination by the court,” the report says. “And too often, the child, although most impacted by the court, has the least amount of input.”

Since 1974, Congress has required states to appoint a representative – often known as a guardian ad litem – for any child involved in abuse and neglect proceedings. However, states have interpreted the federal law in varying ways. The First Star report said 16 do not have statutes requiring that these children be represented by their own attorneys in all child-protection proceedings.

“If you or I have a traffic accident, we can hire an attorney to represent our interests,” said First Star’s chief executive, Deborah Sams. “If a child has been the victim of abuse and neglect, they deserve the same right.”

The report assigned grades based on several criteria, most importantly whether legal counsel for children is mandatory and whether that attorney is required to advocate for the child’s expressed wishes. Other criteria included requiring specialized training in child-advocacy law, the attorneys’ ethical responsibilities, and the child’s right to attend key court hearings.

Only five states earned A grades: Connecticut, Louisiana, Mississippi, New York and West Virginia.

The 15 states receiving an F were Alaska, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Maine, Missouri, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota and Washington.

Whytni Frederick, a First Star lawyer who was principal investigator for the report, stressed that the grades were based on analyzing state laws, not on day-to-day practices by state courts and agencies.

For example, Rhode Island got a low grade in part because its relevant statute does not specify that the child’s representative must be an attorney. But Family Court Chief Judge Jeremiah S. Jeremiah Jr. said the court’s ongoing policy is to appoint attorneys.

In several other states, however, children are routinely represented by nonattorneys, often volunteers from a nationwide program called Court Appointed Special Advocates. These advocates are widely praised for their dedication and frequently spend more hours with a child than an attorney could spare, but they often lack legal expertise.

“The court system has become increasingly complex,” said Paul D’Agostino, executive director of the Child Abuse Council, a private nonprofit in Tampa, Fla. “With the adversarial process, it’s important the child has representation that is very knowledgeable and sophisticated.”

The ideal solution, according to D’Agostino and Howard Davidson of the American Bar Association, would be for each child to have both an attorney and a nonlawyer advocate.

“Child-advocate lawyers have nothing against the concept of citizen guardians ad litems,” Davidson said. “But there are various federal and state laws that apply to these children, and you need a lawyer who can make sure those protections are enforced and hold public agencies accountable.”

Davidson acknowledged that mandatory use of lawyers can raise costs.

“But one has to look at the financial impact on all of us,” he said. “If these young people don’t get the services they need, they’re more likely to go into the juvenile justice and prison systems, or on public assistance.”

In Maine, New Hampshire and Washington, officials spoke highly of the work done by the volunteer advocates.

The Maine Department of Health and Human Services contends its court-appointed special advocates, or CASA, are well-trained and passionate about their work.

“We don’t share that criticism that some may have of using nonattorney guardian ad litems,” said Linda Brissette, a children services program specialist with DHHS.

But Casey Trupin, an attorney with Columbia Legal Services in Seattle, said many children in Washington are going through abuse and neglect proceedings with no representation at all – lawyer or nonlawyer – under a waiver process that he says flouts federal law.