Child Representation: Best Interest Model of Representation Vs. A Client-directed Model

Introduction

In 2012 I became involved in the organization known as CASA (Court Appointed Special Advocates). In Utah, a CASA’s duties are to be the eyes and ears of the guardian ad litem (“GAL”).  GALs in Utah are appointed to cases that involve a child faced with an impending abuse, neglect, or dependency actions in juvenile court.[1] Similar to many states, Utah’s GALs follow a type of best interest model of representation. As expressed in a seminal Utah case concerning, inter alia, duties of a GAL, the court stated  “It is the Guardian Ad Litem’s duty to stand in the shoes of the child and to weigh the factors as the child would weigh them if his judgment were mature and he was not of tender years.”[2]

At this time I knew nothing about the difference between a client-directed attorney relationship and the best-interest model of representation for children but I do remember the representation offered to the first child for which I was the appointed CASA. For the sake of confidentiality we will call this child Jimmy, and Jimmy had a rough life. Jimmy’s father died early in his life from a drug related suicide, and his mother and adult sister had been taking care of him ever since. Jimmy had gotten into quite a bit of trouble with drugs and crime in his early teenage years and had been placed in the foster care system due to his mother’s inability to provide a stable home ever since (he had been in care for three years already when I met him). There had also been a lot of neglect that led to his stay in foster care. Jimmy was appointed a guardian ad litem by the state, to represent his best interests. Jimmy and his mother believed that it was in his best interest for him to return home.

Two years after I met Jimmy, he was supposed to have been home. Under the classic best interest model of representation, which Utah imposes, his attorney had unilaterally decided that sending Jimmy home would be a mistake. Jimmy’s GAL could use his discretion to reach this outcome and during these years Jimmy was still running away from his placement in various groups homes, getting in fights and making bad decisions. Despite, or possible because of his issues, Jimmy’s voice was seldom heard by his advocate and for that matter, neither was mine.

The guardian ad litem/attorney, we’ll call him Bob, was not providing the type of zealous representation that you would expect and hope to see an attorney produce in defense of a child and his future. Then again, that was not his exact obligation, he was under the weigh the evidence and make the decision he felt would be best for Jimmy. Bob didn’t like to visit with Jimmy, in fact, the monthly reports that I provided to him were sometimes the only status updates that Bob had on Jimmy for months at a time. Jimmy constantly informed me during my weekly visits that Bob never returned phone calls, didn’t tell the judge what he (this now 17 year old) wanted him to hear and didn’t confer with Jimmy about any of the decisions that were made on his case, which a lot of the time were no decisions at all, sticking with the status quo of Jimmy in a placement facility on 24/7 lockdown.

The topic of representation for children is mired with different opinions and pros and cons of different approaches but in the end, the goal of those involved in protecting children’s rights should be to give them the best personal outcome possible. To give Bob some credit, there is not an easy answer to the question of how to give children quality representation. Jimmy is an important lesson to keep in mind as the various approaches and history of child representation is explored to determine how to go about this difficult task. Jimmy’s GAL failed him in his representation no matter what side of the argument you agree with most. As an attorney he failed to treat his client respectfully, failed to represent his wishes, and even failed to represent him at all at times. Jimmy is not alone in this experience and hopefully this paper can enlighten the reader as to the precarious position these children are in and how to best make the goal of a good and full life possible for the children in unfortunate circumstances.

Part I of this paper will explore the history of child representation and how that history has lead to the questions we have before us today. As part of this analysis the various ways representatives deal with representing children with be considered, focusing on the two base camps of thought; best interest model of representation vs. a client-directed model, along with several reform proposals created by various interested institutions.

Part II will examine what the social sciences add to the discussion of child representation, focusing on what the children themselves have to say.

Finally, Part III of the discussion will propose a dual model of representation for the reader’s consideration.

I. Representing Children

A. History

This discussion could begin at a time well before the United States existed but implications for the issues in today’s modern world begin with two landmark Supreme Court cases in the 1960’s.[3] In 1966, the Supreme Court ruled in Kent v. United States, that when a juvenile was in the process of being removed from a juvenile court and into an adult court setting, they were entitled to full due process rights.[4] Shortly after this holding, the Supreme Court went on to find in, In Re Gault, that children also had a constitutional right to counsel in criminal cases.[5] These holdings reversed long-standing historical ideals that held children as merely property without rights.[6] The court stated in Application of Gault, “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”[7] The court went on to say that past efforts attempting to rectify the systems and processes the children were afforded not satisfactory, “unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure… absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment.”[8]

The Supreme Court’s unprecedented decision in Application of Gault changed the legal world for children. Children were now recognized as individuals protected by the Constitution, and as such could demand the right to be represented. Not only winning the right of representation, but of representation in manner that any attorney would provide for any of their clients.[9] The Court reemphasized their position in regards to a child’s right to representation by stating, “Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person.”[10] Despite this enormous step forward, these rights only applied to children that were dealing with issues with the state, and not outside that context.[11] Children now had rights to representation when being prosecuted but inversely, when they were the victims, legal rights to counsel have yet to be obtained.[12]

Children at this time still lived in a precarious situation. Living in a system where you are devalued often times leads to systematic abuse. Around the era of Kent v. United States and Application of Gault, C. Henry Kempe was conducting studies about a new concept that he coined as the battered child syndrome.[13] After reviewing hundreds of cases of all over the United States, Kempe found that many of these children shared similar characteristics such as injuries, malnutrition, improper hygiene among a few.[14] This study brought child abuse into the light as a real issue and one that was worth paying attention to.[15] In 1974, Congress passed landmark legislation in the Child Abuse Prevention and Treatment Act (“CAPTA”).[16] CAPTA majorly overhauled the child welfare system through incentive based carrot and stick provisions, essentially by providing funding for child abuse cases so long as the state complied with certain requirements.[17] The divide in the type of representation children receive (best interests v. client-directed) can trace its roots to this statute. The incentive based approach of CAPTA grants funds to states so long as they appoint a representative who will look after the child’s “best interests”, further providing representative may or may not be an attorney at all.[18]

At this time in history, more than ever before, organizations, courts, legislators and people involved with child protection began preparing meeting and preparing standards and directives to guide various parties in their responsibility of representing and working with children involved in the legal system.[19] In 1980, The Department of Justice presented standards that suggested children should have a right to independent counsel whenever custody or being detained was a possibility.[20]

Similarly, the Juvenile Justice Standards Project suggested that independent counsel should be provided whenever the child was involved in a proceeding that would affect the custody rights.[21] Years later in 1989, the UN held the UN Convention on Rights of the Child, the US never ratified the convention but many important ideas were presented at the conference which undoubtedly influenced drafters of future standards.[22] Most notable was the stance that a child who is capable of forming his or her own views should have a right to express those views freely in any matter affecting the child and that the child should have the opportunity to be heard in any judicial proceeding that affected the child, whether through themselves or representation.[23]

Between 1989 and 1991 three large interdisciplinary conferences took place discussing children, their treatment in the judicial system, and the role of the advocate in representing the interests of that child.[24] Some of the standards issued by these groups regarding the representation of children were very encompassing, one example being the Family Law Section of the American Bar Association suggesting that guardian ad litems should be appointed in every child custody case that wasn’t settled by stipulation.[25]

In 1996, CAPTA was amended in an attempt to clarify the confusion surrounding the ever-present question of what type of representation is required for these children.[26] Congress stated in the reauthorized version of CAPTA that a an attorney may be provided for the child and the guardian at litems (whether attorney or not) duty was, “to obtain first-hand a clear understanding of the situation and needs of the child; and to make recommendations to the court concerning the best interests of the child.”[27] In 2003, CAPTA was again amended by Congress again, attempting to further clarify the role of representation, “a guardian ad litem, who has received training appropriate to the role, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role…”[28] In sum, Congress mandates that the child representative, whether as attorney, guardian ad litem (or both), or a CASA needs to have adequate training on how to pursue the best interests of the child.[29]

Some jurisdictions have gone beyond what has been asked from them in terms of CAPTA. The Court in In Re Kenny, found that not only do children have a constitutional right to counsel but a right to adequate legal counsel as well, an attorney that provides zealous representation.[30] Many organizations have promulgated standards which they believe will help solve the issue of how to represent a child, and these will be explored, but it is also essential to note that whatever direction is taken for child representation, all decisions concerning the best interests of the child will be subject to the discretion of the judge presiding over the case and he will make the final decision.[31]

B. TWO BASIC MODELS OF REPRESENTATION FOR CHILDREN

Examining the evolution of representation for children, it is apparent more attention is being paid to the status of children and the ways their rights are protected. Despite this ideological agreement that children deserve these protections, there has been no true consensus on how and when children should receive representation.[32] One of the biggest questions facing the legal system and child representatives, in its most basic form, is whether children should receive a client-directed attorney or a best interests advocate.[33] As will be outlines in section C below, various organizations have promulgated standards for representation, each of which unfolding around this issue of what type of representation model is the best in a given scenario. Section B’s purpose is to give a short overview of what each version of representation generally entails.

I. Best Interest Model

The best interest model of representation stems from a variety of concepts supported by advocates of the approach. The underlying theme is that children do not have the level of maturity necessary to make good life decisions and they do not understand where their best interests lie, presently and in the future.[34] This can be seen as a protectionist viewpoint, meaning that proponents of the approach want to see that children are insulated from their own decisions.[35] Researchers have identified various reasons children could possibly end up making a bad decisions in the judicial setting including fear, guilt, protecting parents and promises made to parents, and a lack of maturity and experience that would allow them to understand and deal with lawyers and judges.[36] Due to these influences, proponents of a best interest model would contend that asking children to direct an attorney would be a mistake and something they could not adequately handle.[37]

Critics have pointed out serious flaws of this model of representation. One critique centers on the idea that older, more mature children deserve to have their voices and opinions heard.[38] Possibly even more important, when a lawyer has discretion to make decisions on behalf of the child there is a large possibility of bias, a tendency for the lawyer to do what they think is right personally over what may actually be right for the child.[39]

II. Client-Directed Model

The general shift toward a more traditional role for the child’s attorney finds its basis in the idea that at the end of a proceeding; the judge will make a determination based on the evidence presented.[40] Since this is the reality of how custody and other proceedings are determined, why would the child not have a right, along with everyone else involved, to have their desires and positions protected and represented by a dedicated advocate.[41] Proponents of a client-directed model also understand that children often have quality and thoughtful desires along with the reasoning to back up why they desire a particular outcome.[42] Proponents would also point out that empowering parties to be heard in various proceedings is the purpose of court setting in the first place.[43] Finally, many proponents argue that allowing for lawyers without proper training and investment in a case to apply their discretion to decisions that will affect the life of a child forever is not a risk that the legal system should take.[44]

Strong critiques of the client-direct model of representation for children involve the idea that children, through various influences previously discussed, may make decisions that will bring them into harms way.[45] Essentially, the client-directed model could enable a child to make a decision that puts them back into the home of an abuser because of the child’s inability to distinguish what path is correct, or due to outside influences, or even because of the magnitude of the decision itself.[46] Another issue critics believe this model will raise is what to do when the child is non-verbal, too immature or unable to provide guidance for a decision that needs to be made on their behalf.[47] When the lawyer is unable to represent the child client’s goals due to them being unknown or otherwise unable to be deciphered, the client is not being represented in a sufficient manner and could have negative outcomes.[48]

C. Competing Standards

Despite the positive trend towards protecting children, fundamental disagreements remain about how this should be done in court and in the legal setting generally.[49] There is wide variation throughout the United States between what statutory provisions are in place and what rules lawyers must follow when representing children.[50] Below is a series of suggested guidelines proposed by some of the most prominent legal organizations that are dedicated to solving the issue of what it looks like to provide quality legal representation for children. As was discussed above, there are issues with a purely client-directed type of representation and a purely best interest type of representation, many of the organizations releasing suggested standards have attempted to rectify these issues by creating hybrid systems or by taking the stance that one type of representation is best.

I. ABA

In 1996, the ABA passed the Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, which included recommendations that children involved in any court proceeding involving allegations of abuse or neglect have legal counsel.[51] This model provides guidelines for how both the best interest attorney and the client-directed attorney should represent their clients.[52] Instead of a presumption that the child was unable to participate in the legal process, the lawyer can advocate for the legal interests of the child when they don’t have the ability to do so.[53] The reasoning behind this approach is the idea that a child’s “disability” from being young and immature is “contextual, incremental, and may be intermittent.”[54]

Depending on the circumstances and the issue facing the child, they may or may not be able to direct counsel but that determination should be made in on an issue to issue basis and not stemming from the age or an overall finding of inability to participate.[55] When the representative invariably comes across a situation where the child’s wishes would constitute a possibility of harm the abuse and neglect standards would allow the representative to request a guardian ad litem to step in and advocate for the best interests of the child while the representative can continue to advocate for the wishes of the child.[56]

Similarly, when the child doesn’t want to or can’t direct counsel on an issue the lawyer may represent the legal interest of the child while requesting a guardian ad litem to step in.[57] These legal interests would be defined strictly with objective material as to not allow the lawyer to much discretion about what decisions they can make for the child.[58] This approach recognizes the concern that the attorney could have too much personal bias and attempts to limit the amount of advocacy they provide for their client without totally eliminating the role altogether.[59]

Despite the ABA Abuse and Neglect standards leaning strongly towards a client driven approach there are standards outlined for a best interest type of representation as well.[60] These standards dictate that the lawyer in this role of a best interest guardian at litem can protect the child’s interest without being bound by what the child’s specific preferences are.[61] However, the standards strongly urge the use of the client-directed model of representation, the standards say that if a conflict between what the lawyer thinks is best for the child and what child wishes arises, the lawyer should defer to being the advocate for the child first.[62]

In 2003, the ABA Custody Standards were passed which brought into greater light the issue of a child’s attorney vs. a best interest attorney.[63] The custody standards also lean toward the use of traditional lawyer for the child.[64] However, the standards still outline two clear categories of lawyers for the child, non-traditional best interest representation and traditional client-directed representation, and under these standards the best interest attorney may provide legal services to protect the best interest of the child without being forced to follow the child’s directives.[65] The custody standards share several other virtues in common with the earlier abuse and neglect standards. Recognizing that a child may be able to provide guidance in some areas and not others, the custody standards state that the attorney should provide advocacy for the child’s position unless there is a chance of serious harm to the child due to the their wishes.[66] At this point, the lawyer would request a best interest lawyer while keeping the clients wishes confidential, unless the lawyer recognizes a substantial threat to injury or death, at which point the confidences can be disclosed.[67]

The biggest divergence the custody standards contain is the inclusion of a complete best interests attorney model.[68] This representative may advocate for the child without being bound by the wishes of the child and the standards attempt to constrain the lawyer’s biases by having objective criteria on which decisions are predicated.[69] This would look like the lawyer gathering evidence, making conclusions based on that evidence and applying the objective legal criteria to the those findings.[70]

In 2011 the ABA, after years of revising and discussing their standards, released the ABA Model Act Governing the Representation of Children in Abuse, Neglect and Dependency Proceedings (“ABA Model Act”).[71] This model went back to an approach leaning much more toward client-directed representation, stating that children’s lawyers deserve the same level of representation as adult’s lawyers and that they should be appointed in any abuse and neglect proceeding.[72] Despite this general lean toward client-directed, the ABA Model Act still contains provisions for lawyers to deal with children that impaired, allowing them to take protective action when necessary and even allowing the representative to pursue other matters unrelated to protective action to meet the needs of the child.[73]

Critics of the ABA Custody Standards stoutly reject the idea of a best interest attorney that can make decisions for the child without heeding their wishes.[74] Another costly dilemma with ABA’s standards is that now instead of just one attorney for the child, which can raise the costs of litigation quite a bit, there is a possibility of a client direct attorney and a best interests attorney raising the costs even higher.[75] Finally, there could be problems that stem from having two different advocates, the best interests attorney and the client-directed attorney could vying for different conclusions for the same child.[76]

II. NACC

Around the time that the ABA proposed its 1996 Abuse and Neglect Standards, Fordham University School of Law held a conference to discuss the appropriate manner of representation for children.[77] Conclusions from the conference were of the position that an attorney for a child should not exercise too much discretion on behalf of the client in determining their best interests.[78]  The Fordham conference recommendations at a basic level state that the representative of the child should represent the express wish’s of the child rather than the what the attorney views as what is in the best interest of the child.[79] The recommendations expressed concern about lawyers applying too much discretion and supported the ABA Custody Standards proposition that a lawyer should only represent the objectively defined legal interests of the child if they were too impaired to participate.[80]

In 2001, NAAC released their “Recommendations for Representation of Children in Abuse and Neglect Cases”.[81] These recommendations were a result of the adoption of the 1996 ABA Abuse and Neglect standards along with recommendations from the Fordham conference, modified with expressed reservations towards the sections dealing with advocating of the child preferences.[82] The main ideology of the NACC stance was that every single child in a child protection setting must be provided competent and zealous attorney that is trained in the representation of children.[83] NACC, while leaning strongly in the direction of client-direct representation, modified Standard B-4 of the ABA Custody Standards to state that children’s attorneys don’t owe a “robotic allegiance” to the wishes of the child but must exercise a some judgment towards the child’s best interests when they cannot participate at a high enough level.[84] The NACC recommendations drew ideology from the Fordham conference to strike a balance between being a total advocate for the child and trying to reach the best possible outcome for the child.[85]

III. NCCUSL

In 2007, NCCUSL or the Uniform Law Commission, after a series of revisions released the Uniform Representation of Children in Abuse, Neglect and Custody Proceedings Act (“URCANCPA”), which encompasses many of the standards promulgated by the ABA Custody Standards.[86] The act calls for the appointment of an attorney not only in any case where allegations of abuse and neglect are a factor, but for a broad range of situations such as custody, divorce and adoptions.[87] The act also calls for representation in either a client-directed or best-interest model.[88] Under the URCANCPA, with client-direct representation, the lawyer is bound to the roles of a traditional attorney.[89] When a child does not or cannot give direction on an issue, the lawyer may step in and advocate as long is it is not against the express wishes of the child.[90]

Conversely to the ABA custody standards, the lawyer may not step in an advocate for a position against the child’s wishes nor request a best interests attorney be appointed.[91] If the lawyer simply disagrees with the child’s wishes on an issue then he or she cannot refuse to advocate that position unless the lawyer determines that that position will seriously risk endangerment of the child at which point protective action can be taken.[92] In this scenario, the lawyer can ask for a best interest attorney or advocate to be provided and continue representation of the child’s wishes or they may withdraw and ask for the appointment of a best interests attorney without needing to disclose the confidentiality of the child.[93]

URCANCAP’s best interest attorney will advocate for the best interests of the child based on circumstances, facts and the objective criteria of the law.[94] Rather than just ignoring the interests of the child, the best interests attorney must give them appropriate weight to her determinations based on the maturity and developmental level of the child.[95] A distinguishing factor of the best interests attorney under this model is that the representative may use confidential information such as a child’s divulgence that one of their parents’ drinks, to undermine the goals of the child. The attorney may use, without disclosing, the communications with the child to build a case for a certain outcome so long as the child is not revealed as the source of the information.[96]

URCANCAP provides a final category of an appropriate representative, a best interest advocate. This advocate is not an attorney and their role is to determine the best interests of the child and assisting the court in making determinations for the child.[97] These advocates would include persons such as a CASA and other volunteers that would meet with the child, investigate the circumstances that child is in, and find out what the child wishes and needs.[98] The advocate would be required to present the child’s expressed choices, without being bound by them, to be weighed with the other evidence just like both the client-directed attorney and the best interest attorney must do under URCANCPA.[99]

Strong criticism of URCANCPA (and consequently the ABA Custody Standards) stem from the ideas that any best interest attorney model diverges from the Model Rules of Professional Conduct, Rule 1.14.[100] This rule explains how lawyers should deal with clients of diminished capacity; specifically stating that age is not disabling per se, and even if it were, the lawyer must still maintain the client-direct model as much as possible.[101] Furthermore, the attorney may only treat the client as if they have a diminished capacity only if there is also a finding of some type of serious harm that may come to the client as a result of their choices, the client cannot act in their own interest and the client cannot maintain a regular attorney-client relationship.[102] Critics state the idea that the URCANCPA standards are at odds with these professional rules by allowing the child’s attorney the discretion to step in and make decisions for the child when no guidance is given.[103]

IV. AAML

The American Academy of Matrimonial Lawyers guidelines for representation of children falls closely along the lines of a client-directed model of lawyering.[104] In fact, the only times that a representative should not pursue the clients goals are when they are seen a repugnant, at which point the representative should remove themselves from the case.[105] Distinguished from a classic best interests model, the representative does not substitute their judgment in the place of the child.[106] The lawyer first discerns whether the child is impaired or unimpaired along with an understanding of what they may be capable of based on their age.[107] If the child is unimpaired, based on the lawyers determination, they will represent the child objectives and follow the attorney-client standards of any ordinary lawyer.[108]

On the other hand, if it is an impaired child, they should not advocate a position on the outcome but rather develop the facts for the judge to consider.[109] AAML wants to have rules in place that stop an adult from advocating his or her own desires in the name of the child and what they think is best for them.[110] Finally, the AAML standards explain that appointments of attorneys for children should be rare due to the tendency to increase litigation expenses and the adversarial nature of child protection and custody disputes.[111] The court should make a determination on the outset of the proceedings as to why the child should be appointed an attorney in that specific case.[112]

AAML standards have been criticized as not being a realistic approach.[113] Critics note that trying to do away with the lawyer’s ability to be subjective in their representation fails in the AAML standards because when representing an impaired child, deciding what evidence to present to the judge gives lawyers discretion as to what way the case should go.[114] Furthermore, critics have stated that the AAML standards add to the issue of the younger child being without an advocate, when deemed “impaired” the high level of advocacy for the wishes of the child are virtually gone.[115]

II. Social Science

Various proposed standards have been introduced, critiqued, applied or forgotten without a consensus on which type or types of representation will work best for the nations youth. The question of what type or what model of representation is the best option can be further understood through the lens of social science.

A. What the attorney should be whatever style is chosen

Although several studies have been done trying to access the status of child representation in America, one study was launched to gather quality empirical evidence of what type of representation works best in the field.[116] The team heading up the QIC- ChildRep project, in preparation for the research, spoke with judges, lawyers, caseworkers, CASAs, and the children themselves and pointed out a pattern of areas of improvement for child representatives in general.[117] Although it is opinion-based evidence, it is worth considering beginning our understanding of what is happening in the real world outside of theory.

The QIC-ChildRep team produced the following preliminary findings to supplement the empirical evidence they would be gathering for the next three years. The basic pattern of the comments and interviews collected found that those associated with child representation felt that attorneys must develop a bond with the child and be actively engaged with them in meaningful contact in and out of court.[118] The attorney must thoroughly investigate and understand the case, and search for solutions in and out of the legal system.[119] Attorneys must be qualified and trained to work with children and meet ongoing qualifications to meet the complexity of dealing with children.[120] Attorneys must have the support social workers, assistants etc. to meet the many demands of successful representation of children which includes have a manageable caseload.[121]

B. QIC-ChildRep

The QIC-ChildRep study gathered a sample of almost 300 children’s attorneys in the Washington and Georgia areas.[122] Critical to understanding this analysis is that at the time the study was done, Washington attorneys had a role of advocating for the “express wishes” of the child while Georgia attorneys had a dual “substitute judgment” and “express wishes” role of representation.[123] In Georgia, when there was a conflict of the best interests determination and the child’s wishes, the attorney was obligated to inform the court of the conflict and request an “express wishes” attorney be appointed.[124] Georgia attorneys reported that they assumed a lower amount of responsibilities on a child dependency case than the Washington attorneys did.[125]

Authors of the study hypothesize that the role of representation could effect how broadly these attorneys viewed their role toward the child.[126] Meaning in essence, that attorneys associated with the client-directed model had more broad and assertive stance toward the representation.[127] The attorney’s reports on the importance of child’s input on decision making and communicating with the child also drew stark differences. Washingtonian attorneys reported in much higher percentages, that taking the child clients input into consideration and attempting to communicate effectively with the child, was very important.[128] Researchers note that the Washington attorneys, working under a client-directed model, were required to take these actions while the Georgia GAL model gave significantly more leeway to these assignments.[129] Additionally, the research notes that the client directed model created more determined efforts by the representative to help the child understand the intricacies of the case, resulting in more informed involvement by the child.[130]

C. Survey of Youth Satisfaction

In this research project conducted by Theresa Hughes, 78 different youths that had been involved in the New York family court system were surveyed.[131] The results of the survey, while somewhat positive, generally tell the story of dissatisfaction.[132] The first main theme emerging from these interviews was that the children wanted their lawyers to be more involved in calling, listening, giving explanations and making more of an effort to be client-oriented.[133]

Hughes points out that this theme may have emerged due to the lawyers misunderstanding what youth clients want and need.[134] The study indicates that the child client’s often don’t feel empowered and without quality representation when the attorney is not explaining the processes, options and obtaining regular input on decisions.[135] These are duties that is well associated with a client-directed method of representation. Not only does this level of involvement with the client help them feel empowered, regardless of the outcome, but assures the lawyer is meeting his or her ethical duties of representation.[136]

Further findings showed that when children did not understand the role of their representative, it hampered their participation in the litigation.[137] Without knowing that their lawyer was there to give them zealous representation, children were even more incentivized to withhold information relevant to the case.[138] A lawyer that is actively involved in the child’s case, asking for input and explaining the law not only gains the trust of the child client to present a better case but can help the child feel like their voice was in fact heard.[139]

The youth interviewed in this survey gave a list of attributes or processes they wished to see in their lawyer or see their lawyer incorporate into their practice, and the list seems to show the positive duties of a client-directed lawyer. The lawyer should return phone calls in a timely manner, visit and make regular calls, encourage client participation in preparing and attending court, listen and be responsive to concerns, engage and be familiar with the clients, investigate and be truthful.[140] The report concludes by pleading the importance of not underestimating and overlooking the needs and wants of the children being represented, as this will lead to inefficient advocacy and violations of ethical legal relationships.[141]

D. National Report Card

First Star and the Children’s Advocacy Institute prepared the National Report Card on Legal Representation for Abused & Neglected Children (“Report Card”) because, like my friend Jimmy, children can be mistreated by the system and be left to languish in foster care, lose their families and miss out on their life goals.[142] The report centered on the idea that children know what happened at home that brought them into court and they have opinions that must be heard.[143] The Report Card has as one of it’s grading criteria the necessity of a client-directed approach to representation of children.[144]

This criterion was viewed as the second most important aspect in child representation, finding that when a child was not given this option, their voice was effectively silenced.[145] Points were allotted for this category of grading, if the state had client-directed laws for representing children. The stats could receive mark downs for minor exceptions to this rule, even larger markdowns for major exceptions to the client-directed system and total to almost total deduction of points when the state gave the attorney discretion to heeding the child’s wishes.[146]

Utah obtained a C grade for representation of children, and if the only category were client-directed representation, they would have failed the survey.[147] Utah code states that a GAL will represent the best interest of the child, and if the minor’s wishes depart from what the GAL has determined as the best interests, he or she should present those wishes to the court.[148] Meaning simply, that the GAL must articulate but not advocate for the child’s express wishes.[149] On the opposite end of the spectrum, Massachusetts law requires that when the attorney determines the child can make decisions toward the matter on hand, they must represent those wishes even if the advocate feels like it is the wrong move or not in the child’s best interests.[150] This position was rated as a perfect score.

III. Trends and the Push

As the standards for representing children have evolved over the years the trend clearly is toward some type of model that focuses on a client-directed attorney.[151] History has shown that children are have changed from the status of property, to constitutionally protected with rights to representation. ABA models went from allowing a very specific distinction of client-directed and best interest approaches in 2003 to an approach much more focused on client-directed representation in 2011.[152] In the United States, only 51% of states mandate that a child’s attorney must serve in a client-directed capacity, and this alone shows the lack of uniformity among the states for applying standards for children.[153]

Some manner of a client-directed approach for every child in every state should become the norm. The next step in advancing this type of quality representation is a mandatory adoption of agreed upon standards by every state, meaning those standards are federal law. Uniform models of representation and professional practice standards that have emerged have enlightened the discussion, shown the positives and negatives of the various ways of representing children but have not reached the end goal of providing a quality representative for every child faced with life altering legal battles.[154] CAPTA provided that funds would be approved to states that provided a guardian ad litem to child in abuse and neglect cases.[155] Consequently, every state now has some version of a GAL.[156] Amendments made to CAPTA to require an actual attorney along with specific adopted standards for them to follow that focusing on a client-directed scheme, could be the answer to the children that are slipping through the cracks of our system.

Determining the exact standards to use will be a very hard sell. As was discussed in this paper, each of the proposed standards has positive and negative aspects. Further research must be done to empirically study how to determine when a child can participate fully in a case, when they can participate partially with the attorneys deferring to another source for left over decisions, and when and how client-directed representation must be provided in a manner without the child’s input on decisions.  Congress has the resources to have a complete, thorough and expansive survey done to curtail CAPTA in this manner. Making an expansive study of this issue in the United states along with the history of representation for children, the contemplation of the various models previously prepared, what those involved in the child representation system say and an understanding of what children (as constitutionally protected individuals) have to say, Congress could make the changes necessary to give consistent and quality representation to every child that needs an advocate.

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[1] See, Office of Guardian Ad Litem. https://www.utcourts.gov/specproj/galcasa.htm (last visited March 17, 2018).

[2] J.W.F v. Schoolcraft, 763 P.2d 1217, 1222 (Utah Ct. App. 1988).

[3] See e.g., Marvin Ventrell, The Practice of Law For Children. 66 Mont. L. Rev. 1 (2005).

[4] Kent v. U.S., 383 U.S. 541, 577 (1966).

[5] Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, 40 O.O.2d 378 (1967).

[6] See Marvin Ventrell, The Practice of Law For Children. 66 Mont. L. Rev. 1, 12 (2005).

[7] Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527, 40 O.O.2d 378 (1967).

[8] Id. at 1439.

[9] See Marvin Ventrell, The Practice of Law For Children. 66 Mont. L. Rev. 1, 14 (2005).

[10] Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

[11] Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 40 O.O.2d 378 (1967).

[12] See Marvin Ventrell, The Practice of Law For Children. 66 Mont. L. Rev. 1, 14 (2005).

[13] See Kempe, et al., The Battered Child Syndrome, 181 JAMA 17, 17 (1962).

[14] See Catherine Erin Naughton. The Cry of a Child Left Unanswered: Pennsylvania’s Treatment of Battered Children Who Kill Their Parents.98 Dick. L. Rev. 85, 87 (1993).

[15] See Marvin Ventrell, The Practice of Law For Children. 66 Mont. L. Rev. 1, 15 (2005).

[16] Child Abuse Prevention and Treatment Act, 42 U.S.C. §§5101-5106 (1974).

[17] Id. at §5106a.

[18] Id.

[19] See, 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, 63 (2008).

[20] See, United States Dept. of Justice National Advisory Committee for Juvenile Justice and Delinquency Prevention Standards for the Administration of Juvenile Justice 3.34 (1980).

[21] See generally, IJA-ABA Joint Commission on Juvenile Justice Standards, Counsel for Private Parties (1980).

[22] See, G.A. Res. 44/25 Annex, UN Doc A/44/736, Article 12, UN Convention on the Rights of the Child (1989).

[23] Id.

[24] See generally, American Bar Association, Child Custody Disputes: Searching for Solomon 89–98, 329, 334–335 (1989); Families in Court (1990); Best Interest of the Child, Ripon Conference, (1991).

[25] See, ABA Family Law Section Council Minutes (Aug. 10, 1991).

[26] See, Donald N. Duquette and Julian Darwall, Child Representation in America: Progress Report From the National Quality Improvement Center, 46 Fam. L.Q. 87, 88 (2012).

[27] Id. at 89.

[28] Child Abuse Prevention and Treatment Act, 42 U.S.C. §5106a(b)(2)(A)(xiii) (2003).

[29] See, Donald N. Duquette and Julian Darwall, Child Representation in America: Progress Report From the National Quality Improvement Center, 46 Fam. L.Q. 87, 89 (2012).

[30] Kenny A. V. Perdue, 356 F. Supp. 2d 1353, 1361 (N.D. Ga. 2005).

[31] J.R. v. T.L.W., 2016 WY 45, 371 P.3d 570 (2016).

[32] See, 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, 64 (2008).

[33] Id.

[34] See, Emily Buss, “You’re My What?” The Problem of Children’s Misconcpetions of Their Lawyers Roles. 64 Fordham L. Rev. 1699, 1702 (1996).

[35] Id.

[36] See, Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375 – 86 (1984 – 85).

[37] See, Emily Buss, “You’re My What?” The Problem of Children’s Misconcpetions of Their Lawyers Roles. 64 Fordham L. Rev. 1699, 1703 (1996).

[38] See, Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required. 34 Fam. L.Q. 441, 447 (2000).

[39] Id.

[40] See, Emily Buss, “You’re My What?” The Problem of Children’s Misconcpetions of Their Lawyers Roles. 64 Fordham L. Rev. 1699, 1703-1704 (1996).

[41] Id.

[42] Id.

[43] Id. at 1704.

[44] Id.

[45] See, Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required. 34 Fam. L.Q. 441, 448 (2000).

[46] Id.

[47] Id.

[48] Id.

[49] See, 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, 64-65 (2008).

[50] Id. at 65.

[51] See generally, Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375 (1996).  [hereinafter ABA Abuse and Neglect Standards]

[52] See, Amy C. Harfeld. The Right to Counsel Landscape After Passage of the ABA Model Act- Implications for Reform, 36 Nova L. Rev. 325, 327 (2012).

[53] See, 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, 78-79 (2008).

[54] See, ABA Abuse and Neglect Standards, 29 Fam. L.Q. 375, 379 at Standard B-3, Comment (1996).

[55] See, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 213 (2005).

[56] See, ABA Abuse and Neglect Standards, 29 Fam. L.Q. 375, 381 at Standard B-4(3) (1996).

[57] Id. at 381, Standard B-4(1)-(2).

[58] Id. at 384, Standard B-5.

[59] See, 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, 78-79 (2008).

[60] See, ABA Abuse and Neglect Standards, 29 Fam. L.Q. 375, 376-377 at Standard A-2 (1996).

[61] Id.

[62] Id. at 379, Standard B-2(1).

[63] See generally, American Bar Association Section of Family Law Standards of Practice For Lawyers Representing Children In Custody Cases, 37 Fam L.Q. 131 (2003). [hereinafter ABA Custody Standards]

[64] Id. at 152-153, Standard VI. 2., and Commentary.

[65] See, 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, 79 (2008).

[66] See, ABA Custody Standards, 37 Fam L.Q. 131, 138, Standard III. G., Commentary.

[67] Id. at 144, Standard V. B., Commentary.

[68] Id. at 150, Standard V. F.

[69] Id.

[70] Id. at Commentary.

[71] See, Donald Duquette, Julian Darwall, Child Representation in America: Progress Report From the National Quality Improvement Center, 46 Fam. L.Q. 87, 105 (2012).

[72] Id.

[73] Id. at 105-106.

[74] See, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 218 (2005).

[75] Id.

[76] Id.

[77] See, Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required, 34 Fam. L.Q. 441, 442 (2000).

[78] Id. at 443.

[79] See, Amy C. Harfeld. The Right to Counsel Landscape After Passage of the ABA Model Act- Implications for Reform, 36 Nova L. Rev. 325, 328 (2012).

[80] See, Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required, 34 Fam. L.Q. 441, 443 (2000).

[81] Id.

[82] See, Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required, 34 Fam. L.Q. 441, 442 (2000).

[83] Id. at 443.

[84] Id. at 450.

[85] See, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 215 (2005).

[86] See, 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, 79 (2008).

[87] See, Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, §2(1)-(5) (2007). [hereinafter URCANCPA] available at https://www.cga.ct.gov/jud/tfs%5C20131001_Task%20Force%20to%20Study%20Legal%20Disputes%20Involving%20the%20Care%20and%20Custody%20of%20Minor%20Children%5C20131126/Uniform%20Laws%202007.pdf (last visited March 17, 2018).

[88] Id.

[89] Id. at § 12

[90] Id. at Alt. A, §12(d)(1).

[91] Id. at Alt. A, §12(d)(2), (3).

[92] Id. at Alt. A, §12(e).

[93] Id.

[94] Id. at §13(b).

[95] Id. at Alt. A, §13(e).

[96] Id. at Alt. A, §13(f).

[97] See, URCANCPA §2(2).

[98] Id. at §14(1).

[99] Id. at § 14(3), (4).

[100] Model Rules of Prof’l Conduct R. 1.14 (2002).

[101] Id.

[102] Id. at 1.14(b).

[103] Katherine Federle. Righting Wrongs: A Reply to the Uniform Commission’s Uniform Representation of Children in Abuse Neglect and Custody Proceedings Act. 42 Fam. L.Q. 103, 105 (2008).

[104] See, Representing Children: Standards for Attorneys and Guardians Ad Litem In Custody or Visitation Proceedings, 13 J. Am. Acad. Matrim. Law. 1. [hereinafter AAML Standards]

[105] Id. at Standard 1.1.

[106] See, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 186 (2005).

[107] AAML Standards, 13 J. Am. Acad. Matrim. Law. 1, 8-9, Standard 2.1.

[108] Id. at 15, Standard 2.3.

[109] Id. at 21, Standard 2.8.

[110] Id. at 20, Standard 2.7.

[111] Id. at 1, Standard 1.1.

[112] Id.

[113] See, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 212 (2005).

[114] Id.

[115] Id.

[116] See generally, Donald Duquette, Julian Darwall, Child Representation in America: Progress Report From the National Quality Improvement Center, 46 Fam. L.Q. 87 (2012).

[117] Id. at 120.

[118] Id.

[119] Id. at 121.

[120] Id.

[121] Id.

[122] See, Britany Orlebeke , Andrew Zinn , Donald N. Duquette , Xiaomeng Zhou, Characteristics of Attorney’s Representing Children in Child Welfare Cases, 49 Fam. L.Q. 477, 481 (2015).

[123] Id. at 484.

[124] Id.

[125] Id. at 503.

[126] Id. at 504.

[127] Id.

[128] Id.

[129] Id. at 505.

[130] Id.

[131] See, Theresa Hughes, A Paradigm of Youth Client Satisfaction: Heightening Professional Responsibility for Children’s Advocates, 40 Colum. J.L. & Soc. Probs. 551, 556 (2007).

[132] Id. at 559-559.

[133] Id. at 559.

[134] Id.

[135] Id.

[136] Id. at 560-561.

[137] Id. at 569.

[138] Id.

[139] Id. at 570.

[140] Id. at 572.

[141] Id. at 579.

[142] See, First Star, the Children’s Advocacy Institute, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children, 4 (Children’s Advocacy Institute of the University of San Diego School of Law, 2^nd ed. 2009).

[143] Id. at 6.

[144] Id. at 9.

[145] Id. at 17.

[146] Id.

[147] Id. at 120.

[148] Utah Code Ann. § 78A-6-902(8).

[149] See, First Star, the Children’s Advocacy Institute, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children, 120 (Children’s Advocacy Institute of the University of San Diego School of Law, 2^nd ed. 2009).

[150] MA CFLP, Stds. Gov. Rep. of Children 1.3.

[151] See generally, Donald Duquette, Julian Darwall, Child Representation in America: Progress Report From the National Quality Improvement Center, 46 Fam. L.Q. 87, 105 (2012).

[152] Id., see also, ABA Custody Standards, 37 Fam L.Q. 131 (2003).

[153] See, First Star, the Children’s Advocacy Institute, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children, 8 (Children’s Advocacy Institute of the University of San Diego School of Law, 2^nd ed. 2009).

[154] See generally, Barbara Ann Atwood. Representing Children: The Ongoing Search For Clear and Workable Standards, 19 J. Am. Acad. Matrim. Law. 183, 212 (2005).

[155] Child Abuse Prevention and Treatment Act, 42 U.S.C. §§5106a (1974).

[156] See, First Star, the Children’s Advocacy Institute, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children, (Children’s Advocacy Institute of the University of San Diego School of Law, 2^nd ed. 2009).