Introduction

The Group entitled “Ages and Stages of Development” had an appropriately wide-ranging discussion over the two days of the Conference. A nearly unlimited number of topics suggest themselves when considering the effects that children’s different ages and developmental stages might have on a lawyer’s representation. Moreover, once the salient topics are isolated, an analysis in terms of children’s chronological ages or of their stages of development may lead to very different results for each topic. In fact, the Group’s most vigorous discussion turned on that very distinction.

*This Working Group consisted of the following members: Anthony DeMarco (Primary
Report Preparer and Group Reporter), Christopher Wu (Group Moderator), Barbara Atwood,
Emily Buss, Michael Dale, Scott Friedman, Miriam Krinsky, Kimberly Mutcherson,
Rebecca Nathanson, Robert Schwartz, and Karen Worthington.

A. Age of Capability

Issue: Should the child/client’s age or stage of development determine whether the client is presumed to be capable of directing their attorney? If so, what are the criteria and who decides if they are met?

Group Recommendation: A statutory presumptive age test should be adopted in child welfare/dependency cases whereby:

• Attorneys should presumptively function as client-directed attorneys for children age seven and above.

• Attorneys in dependency cases representing children younger than seven should:

     ° Practice in a manner consistent with the principles set forth in the Fordham
       Recommendations;(1)

     ° Give due consideration to the view of the child in determining what position to
advocate, and present to the court the views of the child;

Conference Recommendation: There was not consensus on a presumptive age, but there seemed to be some support for including the following language: “Based on our experience, we would be surprised if lawyers faithful to these principles did not routinely treat children at least seven years of age as capable of directing their attorneys.”

     Discussion: Our Group tackled this subject early on and returned to it several times. One of the core concerns of children’s law has always been how to define the attorney-client relationship given that some clients are too young to speak, much less meaningfully understand the legal proceedings or the attorney’s role. Thus, trying to define a single role for lawyers in dependency cases representing children of all ages and all capacities is an impossible task. The ABA, the NACC, and the Fordham Conference adopted policies that are largely in agreement with each other and arguably lean toward a strong presumption of a client-directed relationship whenever possible. However, no state has adopted these standards on a universal basis. State by state approaches has resulted in
confusion as well as greatly divergent approaches to the role of children’s counsel.

Given general agreement with the Fordham/ABA/NACC principles in our Group, we had an interesting discussion about how to draw the policy lines so that the most attorneys would have a clear understanding of their role and hopefully so would their client. As it turned out, another Group (the “Role of Best Interests group) was weighing these same issues and came up with a different result.

The main questions we explored in some depth were:

• Should the determination of whether the client is capable of directing his or her attorney be based on a presumptive chronological age or whether he or she has reached some milestone(s) of development? Who should make that determination?

• What is the role of the attorney for those clients who are determined not capable of directing their attorney? Should an attorney be appointed at all?

In the course of our discussion of whether there should be an age test or developmental test, it became clear that much of the debate would focus on the discretion implied by the developmental test. Proponents of a presumptive age argued that the primary danger of a developmental test is that someone, presumably either the client’s attorney or the judge, must decide whether the test has been met. Setting a chronological age at which the client’s competence to direct the attorney is presumed considerably reduces the cases in which individual decisions must be made about the role of the attorney.

We had much discussion about the danger of placing substantial discretion in either the attorney or a judge to make a subjective determination of the child’s competence to direct their attorney. The fear was expressed that if the child and attorney disagreed about the best course of action, the attorney could too easily conclude that their client was too immature to make that decision.

Thus, even if the developmental bar was deliberately set high in order to give more children client-directed counsel, the subjective nature of any developmental test might have the opposite result. The majority of our Group members therefore concluded that a presumptive age test was preferable.

We did not reach this decision easily and, at the beginning of the discussion, the majority was probably against the concept of setting a chronological age. Although we never reached unanimity, most of us felt that the most important result of providing legal representation is empowering the client.

Some of us who began by arguing against an age test became persuaded by the argument that an age test might result in a greater empowerment of children in the attorney-client relationship. The question then naturally presented is what is the presumptive age? The Group seriously considered a wide range of possibilities. Some advocated setting a high age, focusing on older teenagers, on the ground that they are mostable to have a “normal” attorney-client relationship and the available resources for attorneys (for example, to maintain reasonable caseloads) will always be limited. One member of the Group provocatively proposed that perhaps only seventeen or eighteen year-olds should be routinely appointed attorneys. The discussion also included considerations of ages set by many states for allowing older children to make certain medical decisions privately and by recent studies related to children’s competence in the criminal and delinquency context.

Others argued for setting the age as low as four years old. By that age, most children are verbal and may express some preference to the attorney on one or more relevant issues. Obviously, the communication skills demanded of the client-directed attorney in working with a range of clients from preschool to teenager are enormous. Also, some Group members noted, client-directed lawyering can be a “hard sell” to legislatures and the public, particularly for younger children.

The Group ultimately settled on seven as the proposed presumptive age. Any specific number will be an arbitrary choice to some extent. Moreover, the idea of a presumptive age still leaves room for discretion in close cases. Seven is currently (and historically) the minimum age at which a person can be held criminally liable in most states. What about the children who are below age seven or are deemed not to be mature enough to be appointed client-directed counsel? Our Group had a serious discussion over whether such children should have attorneys at all. Arguments for that position included the lack of attorneys’ training and experience in evaluating “best interests” (or whatever other standard is used for determining the position to advocate), the danger of personal bias entering into the attorney’s position, and, again, the need to maintain reasonable caseloads in the face of limited resources. The provocative argument was even made that, since
many children’s attorneys are so deficient and/or overloaded, a policy that limits the number of attorneys appointed for children might reduce the overall harm done to children through bad attorney practice.

Proponents of attorneys for the younger children argued that part of the attorney’s job is to act as a watchdog on the system and hold it accountable. As one member put it, “when the stakes are high,” it is even more important that a lawyer for the child monitor the process through independent fact-finding and zealous advocacy. The point was made by several in the Group that the child’s attorney, even for a young client, was the only person in the courtroom with a duty of loyalty only to the child.

In the end, the Group felt that the discussion of the role of the attorney for the young child had already occurred over many years and in many different forums. We agreed that the guidelines issued in the Fordham Conference still provided a good template for regulating the practice of lawyers for children not deemed ready to direct their attorney and avoiding some of the pitfalls described above.

B. Juvenile Court Jurisdiction

Issue:

What policies regarding delinquency and criminal court jurisdic-
tion are developmentally appropriate?

Group Recommendations:

• Juvenile court delinquency jurisdiction should be invoked at an age no younger
than twelve at the time of the offense.

• No youth shall be tried as an adult for any crime committed prior to his or her
eighteenth birthday.

• Raising the maximum age for juvenile court delinquency jurisdiction should be
further studied.

• Trying youth in adult criminal courts should be eliminated or minimized. However, if state law provides for adult court jurisdiction the decision on whether to try a youth as an adult should be decided only by judges, in a manner consistent with the ABA/IJA standards on juvenile justice.

• No youth should be sentenced to a term of life in prison for any crime committed
prior to his or her eighteenth birthday.

Conference Recommendations: No changes

Discussion: There was broad consensus in our Group over this set of
recommendations in the juvenile justice field. Much concern was expressed
over the increasing tendency to try children as adults based on more types of
criminal acts and at lower ages. Many states have also streamlined the process
by allowing prosecutors to file directly into the adult court instead of having the
juvenile court judge decide after a hearing.

Children as young as nine have been reportedly tried in adult court despite an increasing body of literature suggesting that many children do not reach a legal level of competency to stand trial until age fifteen or later. Rather than propose an age for adult court jurisdiction, the Group decided to express its general disapproval of subjecting children to adult criminal jurisdiction. If the state nevertheless adopts a system for trying children as adults, only a judge should make the final decision after a hearing to determine if the child can be appropriately treated juvenile court.

The discussion about the minimum age for delinquency jurisdiction arose out of many of the same concerns as the adult criminal jurisdiction issue. Most states do not have a specified minimum age for delinquency jurisdiction. Of those that do, the age may be as low as six. Yet, the recent literature on children’s competence implicates their ability to understand their actions, the proceedings and to assist in their own defense. Many in the Group felt that younger children and their families should be dealt with in dependency court or in the community rather than in the juvenile delinquency system. The Group briefly considered that, on the other hand, consideration should perhaps be given to raising the maximum age at which juvenile court jurisdiction is allowed. Again, studies of competency are beginning to indicate that a significant proportion of young adults should not be held accountable in the adult criminal justice system and would more appropriately be dealt with in juvenile court. We agreed, however, that this issue should be tabled for further study.

C. Child Development Training

Issue:

Many judges, lawyers, lawmakers and social service providers are
poorly informed about child development and how it bears on decisions madein the child welfare, juvenile justice and domestic relations systems and lack
the skills to make and engage children in the decision-making process.

Group Recommendations: Any lawyer or judge involved in child welfare, juvenile justice or domestic relations cases should be required to participate in formal training on child and adolescent development and family systems theory before taking any such cases.

• All court based or ordered evaluations shall be conducted by qualified professionals.

• Law Schools should include interdisciplinary education as part of their curriculum.

Conference Recommendations: No changes

Discussion: The Group did not spend a lot of time discussing these recommendations and felt that they would likely not be controversial among children’s law “insiders,” such as the symposium participants. However, the Group felt that they were principles that should be expressed and expanded upon and that they may not be as obvious to others considering policy in children’s law, such as legislators.

D. Enhancing Youth Participation in Dependency and Juvenile Justice Proceedings

Issue:

When should children be present in court and how should they participate in the proceedings when they come to court?

Group Recommendations:

• Establish and promote policies and practices that would advance the objective of
ensuring that children are present in all dependency proceedings. In particular,
ensure that efforts are made to include children in their own proceedings unless
the child chooses not to participate or the court finds that presence in court would
be detrimental the child.

• In all juvenile proceedings, attorneys should ensure that their child clients are
informed, supported and empowered to be an engaged participant.

• Attorneys should engage in system change to create child-centered and child-
friendly court processes and organizational structures. In the conduct of individual cases, attorneys should engage in practices that ensure the child client is able to understand the court proceeding, including avoidance of the use of legal jargon,
explaining the process and individual decisions both prior to and during court, and
encouraging the court to actively engage the child in the court proceeding.

• Attorneys should engage in system change to promote the development of organizations that support the engagement of youth in the juvenile justice and dependency processes both in individual cases as well as on a systemic level.

• Judges should receive training that will allow them to appropriately engage children as full participants in juvenile court proceedings and attorneys should receive training to promote these practices.

• Attorneys should seek to identify and engage those with whom the child is connected and who can support the child’s ability to participate in the juvenile court
process.

Conference Recommendations: Consider whether participation issues apply to other areas aside from delinquency and dependency. A specific suggestion was submitted to add at least “other family custody cases.”Discussion: There was not any major controversy in this area. The Group generally supported efforts to meaningfully include children as participants inthe court process. The analysis differed somewhat, depending on the nature ofthe proceedings.

For example, some members observed that dependency proceedings and the child welfare system in general do not tend to be inclusive of child participants. However, the quality of decision-making may be enhanced, not simply by the child’s having legal representation, but also by children’s direct participation and input into the process. The child’s participation enhances his or her view of the integrity of process, ability to accept and come to terms with decisions that were made, and may increase stability in all areas of his/her life. The child’s participation and presence in court assures that the judge and other participants have a human face to associate with the decision-making and increases the likelihood that child well-being concerns will be considered through the process. This last point argues for even the youngest children appearing in court.

Although the Group did not spend much time defining specific elements, it is of course important that the court facilities and all personnel create as childfriendly and family-friendly an environment as possible. In the juvenile justice context, while children are routinely included in the proceedings, enhanced efforts need to be made to ensure child is informed, engaged and supported in a way that ensures the child will be a full participant in the process. Attorneys, judges and probation officers, among others, must take the time and care to explain the proceedings in a manner that is respectful and understandable to the child.

While the issue arose of whether the principle of child inclusion also would apply in private custody actions, the Group did not spend much time on the topic or come to any conclusions. One member thought that the family law context might lead to a different result because, in most instances, the parties to the dispute are two parents who are legally presumed to be competent.

E. Juvenile Proceedings Delays

Issue:

How should policies regarding continuances and other delays take account of children’s development and well-being?

Group Recommendations:

• Delays for the administrative convenience of courts, lawyers and agencies should
be eliminated. In all child welfare and juvenile justice cases that are appealed, the
appellate decision shall be issued within two months.
• It is an obligation of children’s attorneys to object to destructive delays and put on the record the harm to the child and family caused by the delay.
• Judges should be educated on the harms to children and families caused by delays in judicial decision-making.
• Record keeping mechanisms should be instituted to track the number and reasons for continuances and the duration of trial court proceedings and appeals.

Conference Recommendations: No changes

Discussion: There was little debate within the Group over the value of minimizing delays in legal proceedings to children’s and families’ well-being. There was also broad agreement that delays often plague juvenile and familyproceedings. The importance of understanding a child’s sense of time and incorporating that understanding into policy and practice has been advocated consistently in the literature on children’s law. In particular, routine, significant delays in trial and appellate proceedings based on administrative convenience should be addressed on a policy level. Unnecessary delay often impairs healthy child development and family functioning.

F. Extension of Jurisdiction in Child Welfare Cases

Issue:

Should dependency court jurisdiction and child welfare services be
extended into young adulthood? If so, under what conditions?

Group Recommendations:

• State and federal law should allow foster youth to remain in care at their request
until age twenty-one. The juvenile court shall continue to have jurisdiction over
their case. The youth shall continue to have the right to counsel.
• If youths choose to leave care anytime after their eighteenth birthday, they should have the right to return to dependency care anytime before age twenty-one. In that event, the juvenile court case shall be reopened and the youth again shall
have a right to counsel.
• These rights should not be conditioned on a youth being in school or in treatment.
• Lawyers for children should have the skills necessary to represent this population.
In particular, these lawyers should be knowledgeable of the youth’s rights to edu-
cation, housing, health care, and employment.(2)

Conference Recommendations: No changes

Discussion: Youth in the child welfare system are often dropped from the system or choose to leave it at age eighteen, even though they may lack adequate education, housing, or support systems. Much attention has been focused recently on the difficulties youth have in transitioning out of foster care, especially when they “age out” rather than exit to a permanent home.

Our Group supported policies that would allow foster youth to remain in care and receive services until at least age twenty-one. In addition, youth who chose to leave the system would have a “right of return” until age twenty-one under which they would be able to reopen the dependency case, receive services, and again receive appointed counsel in the juvenile court.

(2)For additional discussion of this recommendation, see Report of the Working Group on Representing Children as Members of Communities, 6 NEV. L.J. 670 (2006).

G. Representation Beyond Dependency and Juvenile Justice Proceedings

Issue:

How broad should the scope of representation be defined for court
appointed counsel for children in dependency and delinquency cases?

Group Recommendations:
• Counsel for children, with client consent, should assume a broader role in the
representation of their child clients, not limiting representation to the courtroom
or the original petition.
• Within the juvenile justice context, attorneys should provide representation for the child clients, such that they will identify all legal needs of the child through all
stages of the case, including post-disposition, and ensure the child receives appropriate, quality representation. Court rules and models of practice should be
crafted to support this recommendation.
• Attorneys for children should engage in age- and developmentally-appropriate
holistic representation that includes consideration of the needs of the child that
extend beyond the presenting legal proceedings, including but not limited to
mental health, education, health, and other aspects of child well-being, and should
ensure that any identified needs are appropriately met.
• Attorneys should have adequate training, caseloads, access to interdisciplinary
staff, and appropriate compensation to enable them to provide holistic
representation.

Conference Recommendations: No changes

Discussion: The Group strongly believes in a holistic model of lawyering for children. Juvenile courts and the agencies supervising children’s placements and case plans are responsible for meeting a broad range of children’s and families’ needs. Therefore, children’s attorneys must meet the challenge of understanding and advocating for a broad range of services for their clients. The Group wished to emphasize, however, that the lawyer’s assistance must still be consistent with all ethical mandates, including the client’s knowledge and consent.

The notion of representation outside the scope of the immediate proceeding is less prevalent in the delinquency arena. The Group consequently decided to include specific recommendations directed at counsel in juvenile justice cases. We hope that a trend toward holistic representation develops in delinquency policy and practice.

Note:  The remaining recommendations from our Group arguably fall less directly under the subject “Ages and Stages of Development.” However, the topics fell naturally out of our discussions of representing children and we wanted to be sure they were captured somewhere in the proposed recommendations of the symposium.

H. Quality Representation for Parents

Issue:

How is representation for children in dependency cases (“in families” as the symposium title directs) affected, if at all, by the representation afforded to other parties, especially parents?

Group Recommendations: There should be increased training and resources to promote high quality representation for parents. All parents shouldbe provided high quality legal counsel.

• There should be further study of whether appointed counsel should be encouraged or required to provide representation to both parents and children (in separate cases) and, if so, whether there should be an exception for specialized law offices.

Conference Recommendations: No changes

Discussion: Our Group believes that the system for attorney representation in dependency cases must be seen as a whole. Parent representation in child welfare cases is vital to the rights of the child and affects the role of the child’s attorney. All parties must be afforded competent legal counsel in a well-functioning court system.

We recognized that there are few analogs for parents’ counsel to the activity that has focused on representation of children, such as the Fordham Conference and the UNLV Conference. There is no independent membership organization, like the National Association of Counsel for Children (“NACC”) for parents’ attorneys. We felt that in many jurisdictions obtaining high quality representation for parents is an even more pressing systemic need than improving children’s representation.
Some in the Group advocated for guidelines or rules that would require attorneys to represent both parents and children, although not in the same case, of course. This would give parents’ and children’s attorneys a common understanding of available resources for families and deepen the appreciation for family dynamics and their clients’ treatment in the system.

We did not reach consensus on this point, however, especially with regard to those offices that have been created and funded specifically to specialize in the representation of one party, such as children’s law offices and some law school clinical programs.

I. Lawyering for Families in the Community

Issues:

1. How can lawyers help families before they become involved in the juvenile
dependency or delinquency courts? Is there a role for attorneys in prevention of
court involvement?
2. Weak, reactive counsel for parents in child welfare systems are the “norm”; chil- dren’s interest in staying in their families and out of the child welfare system are
disserved as a result. Families have a need for a range of supportive accessible services to function successfully.

Group Recommendations: The costs and benefits of returning to some form of neighborhood legal service office models should be explored and the following should be considered:

• Lawyers should be accessible, community-based and close to other community
resources.
• Lawyers should be generalists and prepared to assist in solving a range of
problems identified by families.
• Lawyers should collaborate with other disciplines and community resources.
• The lawyer’s role should include community education on rights and avenues of
advocacy.

Conference Recommendations: No changes

Discussion: More than twenty-five years ago, the predominant model of federally funded legal aid offices was neighborhood offices. Legal assistance was one of the community supports for families that could assist them in solving problems before law enforcement or other government agencies (such as child welfare) intervened authoritatively. Our Group discussed the possible benefits of comprehensive family lawyering within the context of an office in the community and connected with other community resources. We believe that accessibility to that type of legal service could benefit children, families and society and should be evaluated.

J. Dual Jurisdiction

Issue:

Youth often appear in both the child welfare and juvenile justice systems at the same time. Should the same attorney represent the child in both arenas?

Group Recommendations:
• Jurisdictions should permit lawyers to represent youth in more than one system.
There should be no prohibitions on concurrent or dual representation, particularly
for public defenders and legal services agencies.
• Lawyers who represent children in more than one system should have access to
interdisciplinary support, and have the skills to represent children in more than
one system.
• Lawyers should either provide continuity of representation across systems, or
develop a close working relationship with counsel for the child in the other sys-
tem. Training, compensation, and caseload should be accommodated so this rec-
ommendation can be implemented.

Conference Recommendations:  No changes

Discussion: In many jurisdictions, when children are subject to both the
dependency and delinquency sides of the juvenile court, attorneys are limited to
representing youth in only one of those systems. Consistent with the discussion of holistic lawyering above, our Group recommends that the same attorney represent the child in both aspects of the case whenever possible. Such dual representation may not, however, be possible when state law defines the attorney-client relationship differently for those types of cases. For example, if the law requires the lawyer to represent the child’s “best interests” regardless of the child’s wishes but the attorney’s role in delinquency cases was client directed, the conflict in roles would likely prevent the dual representation recommended by the Group.

This recommendation obviously raises significant issues of training, caseload and professional support, all of which must be adequately provided to enable the attorney to provide competent representation in multiple types of cases.
 

K. Data and Evaluation of Courts

Issue:

Evaluating whether courts and agencies are meeting timelines designed to account for children’s and families’ needs for speedy resolution requires access to relevant data. Many jurisdictions are currently unable to generate such data.

Group Recommendation: Case management and tracking systems are required to monitor timelines of juvenile dockets and track the movement of children through the juvenile dependency and delinquency systems.

Conference Recommendations: No changes

Discussion: Our Group’s final two recommendations met with no debate in the Group and admittedly do not fall squarely within the scope of the Group’s title. We nevertheless felt strongly that we should create a “placeholder” for them and make sure that they were covered in the final symposium recommendations. Many courts lack adequate case management systems that can generate the data necessary to evaluate juvenile and family court processes. Historically, juvenile and family courts are often the last to receive technological and other upgrades and the may not be consulted regarding the specific needs of their cases.

L. Financing of Child Welfare Services

Issue:

Current financing of child welfare encourages overuse of foster care and provides few resources for prevention and early intervention.

Group Recommendation: Congress should implement the federal financing recommendations of the Pew Commission on Children in Foster Care, thereby resulting in more flexible funding for services to assist families and reduce the number of families entering the dependency and juvenile justicesystems.

Conference Recommendations: No changes

Discussion: Consistent with our recommendation to consider funding of community legal services and other resources that might prevent the need for court involvement; we agree with the Pew Commission that Congress should implement flexible funding policies in child welfare to achieve prevention goals.

The Report of the Working Group on the role of Race, Ethnicity and Class

This Working Group considered the role of race, ethnicity, and class (hereinafter “REC”) in the attorney-client relationship. Participants recognize that, in American society, children in the child welfare and juvenile justice systems are disproportionately poor and of color while the lawyers for those children and the decision makers are overwhelmingly white and middle class. This racial disparity may affect attorney client communication, perpetuate stereotypes, foster distrust of the legal system and contribute to bad outcomes for the affected children and families. Issues related to REC, which often are ignored both in the attorney client relationship and more generally in the administration of justice, must be identified, confronted, and resolved. Increasing the racial and ethnic diversity of the child advocacy and justice professional community (i.e. attorneys, judges, legal academics and clinicians, policy analysts, institutions, and public interest organizations, etc.) is a step in the right direction. As important, some would argue even more important, is training and education regarding the impact of REC on all those engaged in the policy and decision-making processes. Including more people with personal experience with the child advocacy community can help in understanding how

REC affects advocacy. Finally, children’s advocates, concurrent with individual representation, must also be engaged in the struggle to eliminate povertyand racism and broaden their advocacy to support youth in their efforts tobecome educated and productive citizens. The following recommendations areoffered in the spirit of enabling all poor youth and youth of color to receivefairness and equity in the fullest sense of those words.(1)

*This Working Group consisted of the following members: Lauren Adams (Primary
Report Preparer and Group Reporter), Randolph Stone (Group Moderator), Ann Barker, James Bell, Gail Chang Bohr, Ina Dorman, Robert Garcia, Dan Grunfeld, Zelda Harris, Theresa Hughes, Linda Rio Reichmann, and Joe Scantlebury.

(1) The included commentary summarizes the Group’s discussions and reasoning regarding these recommendations.

I. INTRODUCTION

In considering the role of REC in the attorney-client relationship, participants first identified those areas that must be addressed in order to eliminate, or at least to ameliorate, the existence of REC bias in the child welfare and juvenile delinquency systems. Several themes emerged during the course of this session, including the following: the impact on advocacy of systemic inequalities in public resources based on REC; the importance of developing a relationship with the child, not just with his/her particular case; the need for children’s advocates to be fully involved in educational transformation issues to improve schools, education and employment prospects for children of color and children living in poverty; and the goal that every children’s advocate be trained and competent in the area of REC so that every child, regardless of his or her REC, receives just and fair treatment in our child welfare and juvenile justice systems.

In addition to these themes, participants posited several questions for further discussion, including: whether technical legal competence is sufficient, or whether a child’s attorney should also be competent with respect to REC issues; whether the system considers the child’s preference differently based on REC; whether the legal profession is doing enough to assist advocates with too many cases and too few resources; whether it is important to distinguish between race and class in the context of representing children; whether we know how to work competently with under-resourced families to empower them to advocate for their children so that they do not feel as though their children have to get locked up to get services; and whether we know how to change the criminalization of adolescence, to change the sense among poor youth and youth of color that simply by living their everyday lives contact with law enforcement is inevitable.

II. RECOMMENDATIONSFOR CHANGESIN LAWAND POLICY

Preface: The ABA Standards of Practice for Lawyers Representing Children in Abuse and Neglect Proceedings provide a minimum standard of representation for children. Understanding the REC of the client will enhance the Standards of Practice and quality of representation.

Recommendation One: The rules of professional responsibility should be revised to create a model rule that attorneys shall consider the REC of the client in the attorney client relationship and representation.

     Commentary: As attorneys, we need to be better informed and be in touch with the lives of our clients. The attorney, with the client’s consent, should meet with the client in the client’s environment, and talk to appropriate individuals in the client’s school, place of worship, and neighborhood in order to get a better understanding of the child’s world and the role of REC in it. The attorney should understand the client’s REC background and reality so that she can help guide the client to make appropriate decisions in both dependency and delinquency cases. Just as criminal defense attorneys are required to investigate the scene of a crime, a child’s attorney should be required to investigate the child’s world. If the attorney does not meet this minimum level of professional responsibility, and does not address REC issues, the attorney is not carrying out competent representation.

Recommendation Two: The rules of professional conduct should be revised to require a finding on the record that the court has considered the child’s REC and environment prior to imposing any conditions on that child.

     Commentary: This Working Group was concerned about the disconnect between the conditions imposed on children by courts and the reality that children face on a daily basis. Too often, courts order children to complete specific programs that are culturally and/or economically impossible for the child toattend. For example, a judge in a delinquency case may require a child to receive counseling at a particular location without knowing that in order to get to this location, the child would have to cross into rival gang territory and put his life at risk. In civil cases, judges should be required to hear and consider the child’s preference. In juvenile delinquency cases, the judge should be required to ask specific questions that get to the heart of who the child is, including, but not limited to, how things are for the child at home, whether he/she is having any problems at school or with people in the neighborhood, whether there are issues at school that keep the child from fully engaging, what type of services the child thinks he/she needs to rehabilitate, and what the child’s educational and other goals are.

Recommendation Three: There should be a mandatory CLE requirement for all lawyers involved in children’s advocacy and justice to identify and eliminate REC bias in the legal profession.

     Commentary: Attorneys involved in children’s advocacy and justice should be mindful of the bias in the legal profession with respect to REC and work toward the elimination of such bias. At a minimum, lawyers for children should be trained to identify REC bias, and provided with information and tools to address and combat any REC bias that arises during their representation of the child.

Recommendation Four: The legal profession shall encourage that judges, prosecutors, public defenders, and children’s lawyers are REC diverse and knowledgeable about REC. Where there are gaps in the knowledge about REC, the court shall employ the appropriate resource to address those issues.

     Commentary: The Working Group recognized the evolving gap between lawyers and the children they represent. It is not always possible to pair a client with an advocate who shares the client’s REC. Nor is it desirable to engage in tokenism for the purpose of pairing a client with an attorney of the same race. The Working Group acknowledged that because of the expense of law school, there is an economic gap between lawyers who represent poor people and people of color and that the clients know it and feel it; and that toooften, the experience for these clients is that the decision-makers can be so removed from understanding the client’s REC that it presents a problem. The Working Group debated whether truly understanding a client’s REC is necessary to the representation of the child, or whether competency in the courtroom is sufficient. The Group agreed that, in order to represent the child competently, the attorney need not be of the same REC as the client. However, the attorney must, at a minimum, actively consider REC, work to understand REC from the client’s perspective, and strive to eliminate any REC barriers for the client throughout the course of the representation. Children’s attorneys who are well informed and genuine can help clients make the best decisions for themselves. Some would argue that the attorney’s own REC is not as important tothe representation as whether the attorney lets the child talk, whether the attorney really listens, and whether the attorney understands the client’s life story and the significance of the decisions that the child must make.

Recommendation Five: Law school curricula should include courses focused on children’s law as well as an appropriate number of credits that are earmarked to identify and understand the role that race, ethnicity, and class play in the lawyer’s relationship with and advocacy for the client.

     Commentary: As noted above, it may not be possible or necessarily desirable to pair every child with an attorney who is the same REC as the child. As a result, it is imperative that all individuals who are going to work withchildren be thoroughly trained in this area while in law school, as well as in practice.

Recommendation Six: In consideration of the issues of REC, and to help lawyers in the trenches, the organized bar and the judiciary should take the lead in addressing the lack of resources commensurate with caseload demands in the area of children’s law consistent with existing ABA Standards.

     Commentary: REC heightens the importance of the ABA Standards of Practice. Not only lawyers but also all those involved in the child advocacy and justice  system should be trained with respect to these standards. In addition, children’s advocates should refuse to take on unrealistic caseloads. Instead, children’s advocates should be active in fighting for reasonable caseloads so that they can effectively assist their clients.

Recommendation Seven: The ABA and state bar associations should honor practitioners and educators who have made significant steps in the study and practice of the elimination of REC bias in the field of child law.

III. RECOMMENDATIONS FOR PRACTICE

Preface: Race, ethnicity, and class have implications that go beyond the attorney
client relationship and must be dealt with to address the quality of justice available to children, particularly children of color and children living in poverty. Children’s
advocates should recognize that traditional litigation and advocacy in court will not
by themselves be adequate to achieve significant improvement in the quality of justice afforded to children. Advocates should strive to make concrete improvements in children’s lives, and give families a sense of their own power.

Recommendation One: In addition to using traditional litigation tools, children’s advocates should, where possible:

1. Engage in broad-based coalition building, including reaching out to stakeholders who traditionally have not taken part in the child advocacy and justice arena;  

2. Utilize creative, multi-disciplinary research and analyses, including financial
analyses, demographic analyses, and historical patterns of discrimination;

3. Undertake advocacy outside the courts, including through legislative reform, the planning and administrative process, and community organizing; and

4. Engage in strategic media campaigns.

Commentary: Participants acknowledge that it is optimal to resolve the issues facing the client prior to the child ever stepping inside a courtroom. To that end, children’s advocates should be knowledgeable about and seek out front-end alternatives and engage the community in problem solving.

Recommendation Two: In order to close the gap between the professional class and clients they are serving, advocates, with the consent of their clients, must learn what is important to their clients as it relates to the client’s REC, including:

1. Interviewing the client before appearing in court and reserving at least an hour to get to know the client;

2. Meeting the client in the client’s environment;

3. Interviewing significant individuals in the client’s school and community;

4. Becoming familiar with the client’s cultural environment;

5. Understanding the court-imposed conditions on the child and whether the conditions can be fairly and safely imposed consistent with REC;

6. Engaging competent interpreters to facilitate communication; and

7. Collaborating with people whom can help the advocates learn how to build relationships, build trust, interpret body language, and communicate effectively with respect to REC issues.

Commentary: As noted above in the section on Recommendations for Changes in Law and Policy,2 the Group discussed the issue of conditions imposed on children, particularly in the juvenile justice system. Too often, courts impose conditions that are impossible for the client to meet. For example, the court might require the child to attend a counseling session that is held in a rival gang territory, or require the child to attend a particular school when the child has been expelled from that school. The advocate must be aware of the barriers for the child, and the resources, if any, that are available to the child
so that the advocate can inform the court when certain conditions cannot be met through no fault of the child. The advocate must also recognize his/her own limitations and, where possible, partner with other professionals such as social
workers, educators, community leaders, and health care professionals, to educate the court about the child’s REC, and to ensure that any court-imposed
conditions are appropriate for the particular child.

Recommendation Three: Developing a relationship with the individual client is an integral part of carrying out the representation. Advocates should integrate other disciplines such as social work, education, and mental health into their representation of the client in order to illuminate the impact of REC on the individual client.

Commentary: Competent representation requires the attorney to advocate for her child client both in and out of the courtroom. Attorneys must be knowledgeable about and advocate for the client with respect to the client’s school status, mental health status, and other related issues. To the extent the attorney lacks expertise in these areas, the attorney should reach out to other professionals in the child advocacy and justice community for assistance. Key to holistic representation is the belief that the attorney should develop a relationship with the client, not just handle a case. To do so requires a multidisciplinary approach, including understanding the child’s genealogy and social history, assessing the child’s educational status, and obtaining information about the child’s mental health history.

Recommendation Four: In order to represent their clients effectively, advocates must listen to the child about the role of REC in the child’s world.(3) This includes actively engaging in training, developing culturally competent child interviewing skills, and, when possible, engaging the entire family to help them understand what to do, how to do it, and what to expect from the justice system.(4)

Recommendation Five: Practitioners shall become competent in the Indian Child Welfare Act (“ICWA”) and its requirements and be trained in its intricacies so that identified children who come within its ambit receive the full benefits of ICWA.

Recommendation Six: Practitioners shall become competent in helping to identify children who are newcomers to this country whose status needs to be regularized so that they can refer the children to immigration lawyers who can help them. Practitioners shall be knowledgeable about immigration law and policy to help children who fall under the jurisdiction of these applicable laws.

(2) Supra, Part II.
(3) Again, the attorney should obtain the consent of the client.
(4) Regarding the issues of listening to the child in the context of class actions and systemic reform, see Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301, pt. II.C.3 (1996)

IV. RECOMMENDATIONSFOR EDUCATION

Recommendation One: REC training should be mandatory for all attorneys involved in child advocacy and justice, beginning in law school.

Commentary: Education with respect to REC should begin in law school and continue through the child advocate’s career. At a minimum, all law schools should: place REC on the curriculum in any courses related to children’s issues including criminal law, family law, and/or lawyering classes; require REC training in all law school clinical curricula; and incorporate REC into all ethics/professional responsibility courses.

Recommendation Two: Organizations involved in child advocacy must commit to developing and implementing REC trainings within five years.

Commentary: Where it is not possible or practical for a child advocacy organization to develop and implement its own REC training, such organizations shall require staff to attend REC trainings, including those that may be provided outside of the traditional CLE formats, and seek CLE certification for attendance at such programs.

Recommendation Three: All decision-makers should receive training on how to identify and consider the REC of the child, how to assess the child’s risks and needs, how to place and treat the child appropriately, and how to eliminate unnecessary detention or out of home placements for children.

Commentary: Decision-makers must be knowledgeable about REC issues in general, as well as specific REC issues as they relate to the particular child, in order to make the best decisions regarding that child. In understanding REC of the child, advocates and decision-makers must understand their own personal views and biases and put those aside in order to make the best decisions for the particular child.

Recommendation Four: We should require accountability of the juvenile justice and child welfare systems through mandated record keeping and public dissemination of disaggregated REC data, including, at a minimum, data disaggregated by race, gender, offense, geography, and ethnicity.

Commentary: Disaggregated REC data is critical to understanding fully the impact that REC has on children in the juvenile justice and child welfare systems. It is also critical to understanding the effectiveness of decisions made about, and conditions imposed on, the children within the system.

V. RECOMMENDATIONSFOR FURTHER STUDY

Recommendation One: We recommend that further study be conducted on how the lack of basic common cultural and social cornerstones affects the quality of representation for poor youth and youth of color. We must also analyze effective ways to close the gap between the professional class and the clients they serve. Minimally, the study should include:

1. Analysis of the effect of establishing a Rule of Professional Responsibility that requires child advocates to personally observe relevant locations and significant neighborhoods central to the child and family; to meet their clients in the client’s environment; to consult with individuals in the child’s school, church and neighborhood;  

2. Proposals for methods that maximize attorneys’ ability to be in touch with the lives of their clients in order to improve advocacy, including understanding by decision-makers of any imposed actions on the child, and whether the imposed actions can be met. For example the judge unwittingly ordering counseling that is located in a rival gang territory;

3. Appropriate REC training curricula for child advocates, decision-makers and
stakeholders; and

4. Analysis of benefits and harms of opening juvenile court proceedings to the
public.

Recommendation Two: We recommend that further study be conducted on alternatives to our current adversarial system that limits us to legal solutions to social problems. Minimally, the study should include:

1. Analysis of the benefits of using a collaborative, multidisciplinary court structure to serve poor youth and youth of color, their families, and communities; and

2. Analysis of the efficacy of non-adversarial models to replace the current legal systems serving poor youth and youth of color, their families and communities, and their impact on public safety.

Recommendation Three: We recommend that further study be conducted on current successful child advocacy practices incorporating REC. Minimally, the study should include:

1. Identification of policies and practices that demonstrate successful life outcomes for poor youth and youth of color, their families, and communities; and

2. Enumeration of the most effective manner of disseminating and garnering support for implementing such policies and practices.

Recommendation Four: We recommend that further study be conducted on the need and mechanism for distinguishing between race and class with regard to representing children, youth and families. Minimally, the study should include:

1. Analysis of how advocates and decision-makers often miss class issues; and

2. Analysis of key system decision-making points to ensure that neither race nor ethnicity nor class result in worse outcomes for poor youth and youth of color, their families and communities.

Recommendation Five: Further study needs to be undertaken on how any recommendations adopted by the UNLV Conference will be applied to pro- bono practitioners.

Recommendation Six: Further study needs to be undertaken on how any
recommendations adopted by UNLV Conference will impact the representation of youth subject to the jurisdiction of the Indian Child Welfare Act (“ICWA”).

Recommendation Seven: Further study needs to be undertaken on how any recommendations adopted by UNLV Conference will affect the representation of youth subject to the jurisdiction of immigration laws.

I. INTRODUCTION

The Working Group on Sex and Sexuality considered four overlapping but distinct aspects of a child client’s identity, expression and behavior—gender, sexual orientation, gender identity, and sexual conduct. The Group was specifically focused on the lawyer’s obligation:

• to understand these aspects of human identity and their potential significance to
the lawyer-client relationship and legal proceedings;

• to be alert to discriminatory treatment of children on these grounds; and

• to ensure that every child client has equal access to services and benefits and
receives fair and respectful treatment.

For the purposes of this report, the term “gender” refers to whether a child is male or female. Gender bias often prompts disparate treatment of girls in child welfare, delinquency, mental health, special education and other systems of care. These systems often respond to girls by imposing narrowly proscribed ideas about appropriate female behavior and activities. For example, the mental health system might diagnose a girl with conduct disorder for "aggressive” behavior that would be seen as normal for a boy; an educational program might offer girls vocational training only in low-paid, traditionally female occupations; a probation officer might recommend that the court detain a girl for a minor offense where a boy in similar circumstances would be released, because she is seen as “promiscuous.” Gender bias may also fuel discriminatory treatment of boys, often based on mistaken assumptions that boys are inherently aggressive and impulsive. For example, a probation officer might automatically treat a boy as a ‘perpetrator’ in an incident of sexual conduct between two children. The combination of racial bias and gender bias is particularly powerful, routinely leading to disproportionate punishment of African American and Latino boys based solely on their race and gender.

The term “sexual orientation” refers to whether a child is, or is perceived to be, heterosexual, gay, lesbian, or bisexual. Several reports have documented that children and youth in schools, child welfare, and juvenile justice systems routinely experience harassment, discrimination, and violence based on their actual or perceived sexual orientation.1 For example, a group home might reject a child because he identifies as gay; school officials might ignore peer violence or harassment directed at a child perceived to be a lesbian; caregivers might compel a child to participate in “reparative therapy,” treating a child’s sexual orientation as a problem to be corrected. Recent research demonstrates that children are aware of their own sexual orientation at increasingly younger ages.(2) Sexual orientation biases harm even young children whose sexual orientation is unknown. A young child placed with foster parents who openly express bias against gay people learns at an early age to equate being different with inferiority.

The term “gender identity” refers to a child’s internal, deeply felt sense of being male, female, or something other or in between. The term “transgender” refers to youth whose gender identity differs from their biological sex or the sex they were assigned at birth.3 Whether or not they identify as transgender, children and youth may suffer discrimination when their appearance or behavior does not conform to societal norms of masculinity and femininity. For example, a foster parent might disparage a male child who wants to study ballet; a group home might refuse to allow a transgender youth who identifies as female to wear feminine clothing; or a juvenile delinquency judge might impose a harsher disposition on a girl because she has a masculine appearance. Residential institutions, educational programs and other services that operate according to strict gender segregation pose particularly difficult challenges to transgender or gender non-conforming youth.

The term “sexual conduct” refers to all forms of sexual behavior (from kissing to sexual intercourse), and is distinct from gender, sexual orientation or gender identity. Government agencies and systems of care have a legitimate interest in preventing children and youth from engaging in unsafe and otherwise harmful sexual conduct. However, these systems often pathologize or criminalize developmentally typical sexual behavior, and react more punitively to sexual conduct by children in state custody than reasonable parents would react to the same conduct by their own children. For example, a child welfare caseworker might label a young child a “sexual predator” because of an incident of sexual touching with another child of similar age; or a group home might punish children for age-appropriate displays of affection such as holding hands and kissing. Public systems may also react more punitively to sexual conduct between youth of the same gender than they would react to heterosexual sexual conduct. For example, juvenile prosecutors may file statutory rape charges against the older of two boys who engage in consensual sex, while declining to prosecute opposite-sex couples in similar circumstances. In addition, public systems may criminalize sexually active youth who are, in fact, victims of adult exploitation. Thus, young women who are being exploited in the commercial sex trade are often arrested for prostitution. Finally, public systems may illegally interfere with a young person’s access to reproductive health services—again as a means of controlling or punishing consensual sexual conduct.

A youth’s identity and experiences with respect to gender, sexual orientation, gender identity and sexual conduct are closely interrelated, and they all intersect with race, ethnicity and culture. None of these aspects of human identity can be viewed in isolation. Public systems may react very differently to a white middle-class gay youth than to a low-income African American or immigrant gay youth. Because of the uniquely influential role of race in our culture, and particularly in public systems serving children and their families, the Working Group expressly addresses race in many of our recommendations.

The Working Group began with the premise that lawyers for children should provide nondiscriminatory and culturally competent4 representation of their clients with regard to each child’s gender, sexual orientation, and gender identity, and should strive to ensure that the placements and services their clients receive from public systems of care are also nondiscriminatory and culturally competent. The Working Group recommends that lawyers take account of these issues in several ways. First, through professional training and reflective, self-critical practice, lawyers should strive to ensure that their own internal biases do not compromise the quality and effectiveness of their advocacy on behalf of child clients. Second, lawyers should be alert to bias or discrimination based on the gender, sexual orientation, gender identity or sexual conduct of their child clients, and should seek to remedy such inequities on a case-by- case basis. Third, lawyers should advocate for law and policy changes to promote systems of care that are fair, safe, and respectful of the human dignity of each child.

*This Working Group consisted of the following members: Martha Matthews (Report Preparer and Group Moderator), Shannan Wilber (Report Preparer and Group Reporter), Alice Bussiere, Barbara Fedders, Dan Filler, Nesheba Kittling, Jody Marksamer, Laurie Schaffner, Andy Shookhoff, Kim Taylor-Thompson, and Joanne Thompson.

(1) See, e.g., Lambda Legal Defense and Education Fund, LGBTQ Youth Risk Data, http:// www.lambdalegal.org/cgi-bin/iowa/news/resources.html?record=1662 (last visited May 15, 2006).

(2) Caitlin Ryan, Presentation of Research at Child Welfare League of America National Con- ference, Preconference Institutes (March 8, 2005) (program available at http://www.cwla.org/conferences/2005NATIONAL.pdf).

(3) The term “LGBT” (lesbian, gay, bisexual and transgender) is used as an umbrella term for youth whose sexual orientation and/or gender identity differs from that of the majority.

(4) In this context, the term “culturally competent” means responding effectively and respectfully to children of all cultures, languages, social and economic classes, races, ethnic back grounds, religions, and other diversity factors (including gender, sexual orientation, and gender identity) in a manner that recognizes, affirms, and values the worth of individuals, families, and communities and protects and preserves the dignity of each. NASW NATIONAL COMMITTEEON RACIALAND ETHNIC DIVERSITY, NATIONAL ASSOCIATIONOF SOCIAL WORKERS, NASW STANDARDSFOR CULTURAL COMPETENCEIN SOCIAL WORK PRACTICE (2001).

II. PRACTICE RECOMMENDATIONS

II. PRACTICE RECOMMENDATIONS

III. RECOMMENDATIONS FOR CHANGES IN LAW AND POLICY

III. RECOMMENDATIONSFOR CHANGESIN LAWAND POLICY

IV. LEGAL EDUCATION AND TRAINING

In these recommendations, the term ‘lawyer’ refers to children’s counsel, parents’ counsel, agency counsel, prosecutors, judges and hearing officers.

Recommendation One: Lawyers should obtain cultural competence training that includes race, gender, sexual orientation, and gender identity issues.

Commentary: Stereotypical assumptions and biases concerning race, gender, and sexuality may interfere with lawyers’ abilities to advocate for their clients. Lawyers should seek out, and professional organizations should make available, professional education to help lawyers learn to recognize and overcome assumptions and biases, and develop a respectful and nuanced understanding of the roles of race, gender, sexual orientation and gender identity in clients’ lives and their potential relevance to legal advocacy in clients’ cases.

Recommendation Two: Lawyers should receive training about child development, including sexual identity development, and the range of developmentally typical sexual behaviors.

Commentary: Recent advances in scientific research provide new insights into adolescent moral, cognitive, physical, and sexual development. For example, adolescents’ brains differ from adults’ in specific ways. Lawyers should seek, and professional organizations should provide, opportunities to learn about recent advances in the study of child and adolescent development, and the implications of new research for legal advocacy.

Recommendation Three: Lawyers should learn to communicate with clients, in a developmentally appropriate manner, about sexual orientation, gender identity and sexual behavior. This should include the ability to respond appropriately to disclosures of sexual assault and abuse.

Commentary: See Commentary to Recommendations II.A.3-5, supra.

Recommendation Four: Lawyers should receive training on addressing families’ adverse reactions to a child’s sexual orientation, gender identity, or sexual conduct.

Commentary: See Commentary to Recommendation II.B.9, supra.

Recommendation Five: Lawyers should be familiar with community- based programs and resources, and learn to assess whether such programs provide inclusive and nondiscriminatory services with respect to race, gender, sexual orientation and gender identity.

Commentary: See Commentary to Recommendations II.B. 6-8, supra.

Recommendation Six: Lawyers involved in individual representation of children should know about the range of remedies for individual and systemic civil rights violations.

Commentary: When a client has been harmed by discrimination by a public agency based on gender, sexual orientation, or gender identity, including an agency’s failure to prevent peer harassment or violence, the lawyer has an ethical obligation to inform the client of all available causes of action and available referrals for relief.

Recommendation Seven: Lawyers should receive training on how to ethically resolve conflicts between their clients’ wishes and their personal views about sexual orientation, gender identity, and sexual activity, and to recognize when their personal views may make it necessary for them to withdraw from representation.

Commentary: Some lawyers may have personal or religious views about sexual orientation and/or gender identity that make it difficult to provide effective advocacy for an LGBT client. Conversely, lawyers who support the rights of LGBT persons may find it difficult to advocate for a juvenile accused of “gay bashing,” or a client who wants to undergo “reparative therapy” to change his sexual orientation. Lawyers should seek professional training and peer mentoring to recognize and overcome personal biases, but should also recognize situations where their personal views may interfere with effective  advocacy to the extent that they are ethically obligated to withdraw from the
representation.

Recommendation Eight: Educational materials designed for attorney trainings addressing diversity or bias should include sexual orientation and gender identity.

Commentary: Many “diversity” trainings offered to lawyers at professional conferences and continuing legal education activities address gender, race, and socioeconomic status, but omit any mention of sexual orientation and gender identity. Since these are aspects of human identity that often evoke personal biases and stereotypes, and because many lawyers are uncomfortable discussing with clients, these topics should be included in diversity trainings.

V. RECOMMENDATIONSFOR FURTHER STUDY

Recommendation One: Judges and court administrators should support studies to identify and determine the extent of any disparate treatment of children and families based on race, gender, gender identity, and sexual orientation. These studies should focus on both courtroom conduct and the decision-making in cases.

Commentary: Judges and court administrators should support confidential and anonymous studies, which comply with federal human subjects protection guidelines, to identify areas of disparate treatment and improve the fairness of judicial decision making in the child welfare and juvenile justice legal systems.

Recommendation Two: Courts and agencies should collect and report data that can identify and determine the extent of disparate treatment of children and families based on race and gender.

Commentary: Currently, there are no federal or state systematic data management systems in place to track disaggregated data on children and famalies involved in the child welfare, juvenile justice, mental health and other public systems on variables such as race, age, gender, etc. Without these data, it is impossible to make statistically valid claims of bias or discrimination—or to ameliorate such problems.

Recommendation Three: State and national bar associations and other professional groups should study and make recommendations on whether non-lawyer professionals (such as psychologists and social worker) working with lawyers on child welfare, delinquency, family law, and other cases involving children should or should not be mandated reporters of child abuse.

Commentary: See Recommendation III.A.1, supra. The Working Group did not discuss whether non-lawyer professionals working with lawyers should also be excluded from mandatory reporting laws, to further ensure that child clients are able to discuss sensitive topics concerning sexuality without the fear that their disclosures will be reported to the authorities against their wishes. This is an important topic for further study and discussion, however, because many organizations that represent children in child welfare, juvenile justice and other public system employ non-lawyer professionals (such as social workers)
to visit and interview clients, consult with lawyers on placements and services,
etc.

I. PREAMBLE

“Your group almost got cut,” one of the planners told us a day into our work. “I argued for it to be cut,” said a second planner. Both of them were participants in our group! “So we better make the case for its significance,” urged the first planner. And so our group resolved to convince the conference participants that child advocates could no longer see themselves or their clients in purely domestic terms. We first focused our attention on how international laws and norms had already shaped the ways in which we represented our - clients. This approach also helped us to address the four questions that the planners provided us to consider:

1. What are the frameworks of international human rights regarding children?

2. How do we utilize international children’s rights and emerging case law?

3. What are the benefits and detriments of adopting those norms?

4. What do models of representation in other countries have to teach us?

We quickly agreed to think as broadly as possible about our mission. We would generate further questions and ideas by creating the broadest list of international issues before organizing them into thematic categories. Over the course of the first morning, we generated pages of ideas, sharing a range of experiences about international and comparative laws and norms and their potential impact on the way in which we see ourselves as child advocates. When we returned from lunch, we prioritized our interests and began to make a laundry list of categories that captured our greatest concerns and kept the discussion as far reaching as possible.

In working with these categories, we remained aware that we would need to convince our colleagues that child advocates have an obligation to look beyond our borders on two accounts: to understand the international context of our work, and to explore models of child advocacy that move outside the courthouse. On the other hand, we were also aware that we wanted child advocates to understand that despite thinking broadly about child advocacy, in certain contexts like legal proceedings, the role is limited by law and professional responsibility guidelines.

By the end of the afternoon, our ideas began to be organized into three areas: the centrality of the U.N. Convention on the Rights of the Child, the recognition that our clients and their families are global and transnational (though we didn’t identify this term until the next day), and the need to understand the consequences of international law and norms on our advocacy. We also knew we wanted a preamble to our recommendations to highlight our agreement that advocates who care about children must look everywhere for laws, values and norms that benefit children.

The next morning, we began to organize our ideas so that we could divide into writing groups. They tended to fall within the following categories:

1. Domestic laws that have international implications, such as immigration laws;

2. International laws and norms that are binding on the practice of child advocates,
such as the United Nations Convention on the Rights of the Child (“CRC”);

3. International laws and norms that are instructive for child advocates;

4. Comparative laws and norms that are instructive for child advocates;

5. Identifying the ways in which our clients are global citizens who require child
advocates able to transcend domestic and cultural limitations;

6. Identifying ways in which our domestic experience has had positive and negative
impacts on international norms and practices.

Our group function became increasingly educational. We wanted to clarify the role of international laws and norms in child advocacy without scaring our colleagues with another set of obligations in a harried and overwhelming practice. Our final recommendations, therefore, contain descriptive passages to explain and enhance the reasons for their inclusion. We broke into groups to write our recommendations, dividing our work into these five categories:

1. Preamble

2. U.N. Convention on the Rights of the Child

3. Gross Departures from International Laws and Norms

4. Utilizing International and Comparative Law and Norms

5. Our clients and their families as global and transnational

Ultimately, we subdivided the international and comparative discussion into two sets of recommendations. We wrote well into the early evening and edited each other’s sections, reaching consensus on both our mission (highlighted by our preamble) and our recommendations.

Because our recommendations are so detailed, we will let them speak for themselves. We hope they capture, for the reader, the thrill of working through this very difficult topic and organizing our thoughts into effective reccomendations. We certainly were humbled by the knowledge, gained after this effort, of how much we have become global child advocates as our clients have become global citizens. And we were so grateful not to be cut!

II. INTRODUCTION

In the twenty-first century, children and their families are global citizens, that is, holders of international human rights and beneficiaries of international law and norms. Even in cases that appear purely domestic, international law and norms may influence outcomes. For example, in dependency hearings, international norms dictate that children have a right to express themselves freely in all matters affecting them, calling into question the widespread American practice in which representatives have no obligation to represent the child’s wishes. Children increasingly live in transnational families by virtue of their parents’ citizenship, residence, and other ties. The fate of a juvenile delinquency client may depend on her immigrant status. A child custody matter that crosses beyond our borders may be governed by international conventions to which the United States is not a party. A termination of parental rights’ proceeding may require interpreters and special cross-cultural sensitivity when it involves a multilingual and multicultural family. Thus, international law, international norms and international concerns pervade the legal world and law practice must immediately incorporate a sophisticated understanding of these concerns.

Concerned that the plight of children has deteriorated despite the concerted efforts of child advocates to represent them better and pursue their welfare, and acknowledging the increasingly global nature of family law, child advocates must be aware of and pursue all international and comparative “avenues” that may benefit our clients. In a spirit of humility, child advocates must acknowledge that current efforts have failed to keep children out of poverty (1) or provide them with the opportunity to reach their full human potential. In a spirit of openness, child advocates must look to any system or ideas that have yielded constructive outcomes for children around the world, and ask how they might be adapted to meet the needs of children in this country. In a spirit of generosity, child advocates must share any successes and failures, so that all communities can learn about methods and programs that might benefit children around the globe.

In the twenty-first century, it is also critical to think broadly and innovatively about tools to amplify our clients’ voices, to represent them meaningfully in the context of their families, and to achieve social justice for children. The demands on children grow more complex daily. Child advocates must recognize the global nature of their work and become open to learning new ways of pursuing client goals as international norms are quickly emerging as binding customary law.

In order to achieve these goals, we have divided our recommendations into five separate, but related, areas. First, we call for the United States to ratify the United Nations Convention on the Rights of the Child. Second, we call for the United States to remove gross departures from international norms. Third, we propose ways in which lawyers can utilize international law and norms in their advocacy for children and their families. Fourth, we provide examples for how to learn from the comparative practices of our international colleagues. Finally, we offer recommendations for issues that affect global citizen children who live in transnational families, especially in the area of immigration law.

(1) More than twelve million children in the United States live below the poverty line, nearly seventeen percent of all children. Since 1969, even as the GNP has risen fifty percent, child poverty has increased by fifty percent. Among the twelve industrialized OECD countries, the U.S. ranks in the bottom third for child poverty. See Innocenti Research Centre, UNICEF, Child Poverty in Rich Countries 2005, available at, http://www.unicef-icdc.org/ publications/pdf/repcard6e.pdf.

* This Working Group included the following individuals: Jane Spinak acting as Primary Group Reporter and Group Moderator, Bernadine Dohrn of Northwestern University Law School, Don Duquette of the University of Michigan Law School, Linda Elrod of Washburn Law School, Loren Ganoe from First Star, Gerard Glynn from Barry University Law School, Bill Grimm from the National Ctr-Youth Law, Jean Koh Peters from Yale Law School, Robert Shepherd from the University of Richmond Law School, Jane Spinak from Columbia Law School, David Tanenhaus from UNLV Boyd Law School & Hist., David Thronson from UNLV Boyd Law School

III. U.N. CONVENTION ON THE RIGHTS OF THE CHILD

The U.N. Convention on the Rights of the Child (2) (“CRC”) addresses a wide range of issues affecting the lives of children and offers a comprehensive framework for children’s rights. The CRC protects children, empowers children, and reinforces the primary role of families in the lives of children. The CRC requires states to provide essential services such as a name, nationality, healthcare and educations. The CRC protects children from
exploitation, arbitrary detention and unwarranted removal from parental care. Finally, the CRC requires states provide children the right to participation in all decision-making processes and all community systems that affect the child’s life.

Every U.N. member state has signed the CRC; 192 countries have ratified the CRC. Only Somalia and the United States have not.3 Ratification and implementation will enhance and improve the laws that protect, provide services, and secure rights for children in the United States. The United States should no longer stand virtually alone in refusing to ratify the U.N. Convention and should support and lead these efforts to improve the lives of children.

(2) The United States is a signatory to the Convention and is thus bound “not to contravene” the convention. Furthermore, with the overwhelming international unanimity of this convention, it can be argued that the Convention is binding on the United States. However, it is still important for the United States to join the rest of the world in officially recognizing the Rights of the Child.

(3) In ratifying the CRC, the United States can address any specific concerns through care-
fully focused understandings or declarations.

IV. GROSS DEPARTURESFROM INTERNATIONAL LAWSAND NORMS:

The United States violates international law in three specific ways that have an immediate impact on children and families in the U.S. The first violation is a gross departure from an international treaty ratified by the U.S. The second and third are violations of customary international law.

V. UTILIZING INTERNATIONAL LAWAND NORMS

1. Child lawyers, advocates, and judges need to be knowledgeable of and utilize
international law and norms in representing children and families.

2. Education in international law, norms, and practices that affect children and families should take place in law schools and through continuing legal and judicial education.

Child advocates have an obligation to know international laws and treaties that affect their practice, especially where they may be binding, customary or instructive law. Critically relevant children’s law can be found in U.S. constitutional, statutory, and case law as well as in both conventional and customary international law.

The United States has ratified a wide range of treaties that impose legal duties on states that become parties. Each and all of these may be essential to a competent and zealous representation of children and families. These include:

• The International Covenant on Civil and Political Rights (1992);
• The Convention against Torture, Inhuman and Degrading Treatment and Punishment (1994);
• The U. S. ratified the two optional protocols to the U.N. Convention on the Rights
of the Child in 2002: the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography and the Optional Protocol on Child Soldiers;
• Convention on the Elimination of all forms of Racial Discrimination (1994);
• The Geneva Conventions;
• The Vienna Convention on the Law of Treaties (1987);
• Hague Convention on the Civil Aspects of International Child Abduction ratified or acceded to by 75 nations including the U.S. (1988);
• ILO 182 on the Worst Forms of Child Labor, ratified by the U.S.

VI. COMPARATIVE LAW: LEARNING FROM INTERNATIONAL EXPERIENCE

1. Child advocates should educate themselves on the legal systems and practices from other legal traditions in order to use the entire world as an instructive laboratory.

Comparative law is instructive for U. S. child advocates. In areas of innovative practice, law and system reform and case law, child advocates continue to learn from, absorb, and adapt the experiences of other nations and cultures; the entire world is a laboratory of useful experience and history. We should recapture a sense of openness, experimentation, and humility by seeking tools from many sources to evaluate comprehensively our current laws and practices. Similarly, the global community can learn from the successes and failures of the U.S. experience. The legal community should encourage and facilitate
exchanges of legal practitioners and scholars from various countries and legal traditions.

Many of the challenges facing families are universal. There are common beliefs and human values across nations and cultures, including the central importance of the family and the primacy for child safety and well-being. Similar principles are in effect in other countries and have driven the development of their social and legal systems. Many values and principles are common among the world’s cultures regarding children in families. Advocates for children and families have been enriched by practices and law reform in other countries of the world. For example, the Maori practice of group conferencing from New Zealand has grown into a rich array of restorative justice practices and techniques around the world and in the U.S. Some legal systems think more broadly about child advocacy than the more traditional case-by-case court model. For example, the Ombudsman concept, originating in the Scandinavian countries, creates an independent agency to monitor the delivery of services for certain populations, such as children. In the United States, twenty-seven Child Ombudsman’s offices have been established.

Child advocates should continue exploring alternative approaches and models of child advocacy beyond traditional litigation to maximize children’s abilities to lead safe, healthy, productive and happy lives.

VII. GLOBAL CITIZENSIN TRANSNATIONAL FAMILIES

Every lawyer who represents children must determine whether there are transnational
issues directly or collaterally affecting their representation and must integrate all
transnational dimensions into the representation of children and families. Domestic and international laws that set parameters on transnational migration have great impact on children and families. Families exist across borders and heightened restrictions on immigration affect their unity. Other families that are together within the United States face challenges related to the immigration status of family members. Families are also affected by laws, such as the Indian Child Welfare Act, that establish special procedures for members of Native American families and tribes. Still other children arrive in the United
States unaccompanied by any family. In all of these contexts, child advocates must be aware of the transnational dimensions of their clients’ lives to be effective.

Immigration status issues, whether involving the child or family members, have direct and profound influences on multiple decisions that are routinely made in the course of representation. At a minimum, lawyers representing children must know the immigration status of their clients and other family members. The following list is illustrative of the types of proceedings in which transnational issues are critical:

Immigration: Immigration law sanctions and proscribes the decisions of individuals and families to live within national borders. The operation of immigration law, therefore, can have a tremendous impact on family integrity and stability. For example, when children or family members are unable to achieve legal immigration status or face removal from the United States, immigration law can directly prevent a family from living together or restrict a family’s eligibility for needed benefits.

Custody and Support: Immigration status can influence custody and support determinations. Immigration status may be raised in a discriminatory manner in proceedings regarding children. Attorneys for children must be vigilant to ensure that when immigration status does influence outcomes it is the result of rigorous factual and legal analysis and not a byproduct of stereotypes and prejudices.

Child Protection: Children in transnational families require protection without regard to their own or their parents’ citizenship. In some instances, children who are removed from parents in family court proceedings may have immigration options, such as special immigrant juvenile status (SIJS) that are not otherwise available. In other cases, parents’ immigration status can create barriers to acquiring much needed services or be the source of discrimination.

Adoption: Adoption can have immigration consequences for children and parents. Perhaps most apparently, overseas adoptions require consideration about the immigration steps necessary for adopted children to enter the United States. Yet even for domestic adoptions, immigration law requirements are frequently not aligned with state law requirements. For example, a valid state adoption finalized after a child reaches age 16 does not create a parent-child relationship for immigration purposes.

Abduction: The transnational aspects of lawyering for children are readily apparent when a parent abducts children and takes them across national borders. In such instances, attorneys must have knowledge of federal statutes and treaties, such as the Hague Convention on the Civil Aspects of International Child Abduction.

Delinquency: Delinquency proceedings may not result in criminal convictions, but findings and admissions inherent in the process may have serious immigration consequences. Immigration status can also present barriers to young people taking the steps they need to resolve delinquency cases, such as seeking employment or school opportunities or accessing public services. Moreover, in some instances, state dependency determinations in delinquency proceedings, such as placement in foster care, may even result in creating immigration status options (SIJS) that would otherwise not be available.

Human Trafficking: Human trafficking involving children often occur across borders and plainly implicates transnational legal considerations.

Lawyers and other professionals working with transnational children and families must incorporate the following criteria into their practices to be professionally and ethically competent.

     1. Learn and integrate transnational dimensions of laws, policies and practices.

     2. Access networks of resources and expertise and develop cultural competence to interact effectively with transnational families.

     3. Insist on appropriate interpretation and translation services in all interactions with transnational clients, including all service provider and court contexts.

Professional Education in all fields working with transnational children and families must incorporate the following criteria into their curricula and policies:

     1. Developing effective approaches to teaching cultural competence.

     2. Examining the transnational dimensions of laws, policies and practices affecting children and families.

     3. Developing language study options for students who will be working with transnational families.

      4. Recognizing the impact on transnational learning of the increased diversity of faculty and students.

I. EFFECTIVE REPRESENTATION: SCOPE OF REPRESENTATION

1. When counsel is appointed or retained in delinquency or dependency proceedings, the representation should not end before the jurisdiction of the court ends. During the course of the representation, counsel should provide appropriate advice, advocacy, and other assistance to clients with respect to their transition out of jurisdiction.

2. Decisions regarding the scope of representation should be client directed.1

3. Options regarding scope of representation and the operation of the attorney-client privilege should be explained in developmentally and culturally appropriate ways.

4. Lawyers should ensure that clients understand the scope of representation, including but not limited to: the roles and responsibilities of the attorney and client, the attorney-client privilege, and the duration of the representation. Counsel should make an effort to ensure that clients do not expect the lawyer to engage in advocacy beyond those the lawyer actually intends to undertake. This obligation of clarity is ongoing, and lawyer and client should revisit the scope of the representation as appropriate or necessary. Youth are often simultaneously involved in child welfare (“CW”) and juvenile justice (“JJ”) proceedings. In addition, lawyers representing youth in CW or JJ proceedings frequently become aware of other legal issues affecting the youth. Youth involved in the transition from a court’s jurisdiction often have a great need for such representation.

A lawyer representing a youth in either a JJ or CW proceeding, should understand the inter-relationships between that representation and other related substantive areas (e.g., health, housing, public benefits, education, domestic violence, and immigration). When competent to do so and with the consent of the client, lawyers should endeavor to provide legal representation in ancillary matters, either within or beyond Juvenile Court, both during and after the original representation. Appointed lawyers should petition the court for appointment and compensation on these matters.

1. If a lawyer is not able to provide representation in an ancillary matter, (s)he should assist the youth in obtaining representation in that matter.2 If the youth is able to obtain representation in the other matter, counsel in the original matter should consult with that counsel, as appropriate and/or directed by the client. If the youth is unable to obtain counsel in the ancillary matter, the original attorney should educate and attempt to empower and mentor youth (and their families when appropriate) with respect to addressing the ancillary legal matter.

2. With the client’s consent and throughout the course of representation, a lawyer should endeavor to work with the family and other professionals to empower youth and their families to address other collateral issues affecting the youth or his family that may or may not require legal representation.

*This Working Group consisted of the following members: Marsha Levick (Primary
Report Preparer and Group Moderator), Paul Holland (Group Reporter), Marty Beyer, Carol
Casey, Catherine Crawford, Howard Davidson, Amanda George Donnelly, Robert Harris,
Pamela Mohr, Jennifer Rodriguea, Catherine J. Ross, Lyn Slater, and Ruth Stone.

1. This recommendation assumes the client is capable of directing the representation.
2. When possible, a law office representing children may wish to include staff that is competent in such frequently recurring related issues.

II. EFFECTIVE REPRESENTATION: CHILD IN CONTEXT

Attorneys representing children in dependency and delinquency cases must be knowledgeable about child and adolescent development and establish effective working relationships that empower clients.

An effective working relationship can be established only if attorneys listen carefully to their clients and explain matters to them in a developmentally appropriate manner. This consultation should take place in the course of regular face-to-face contact whenever possible, with other forms of communication (e.g., phone calls, writing, etc.) as necessary and appropriate. Attorneys should inform the client as to the status of the case and give clients the opportunity to have their questions answered and to direct the representation.
Effective representation requires that the attorney appreciate the full context in which the client lives. This context includes the child’s family, culture, gender, schooling and home. Attorneys must appreciate the strengths of the child and family.(3) Attorneys must be continually aware of their child client’s functional level, disabilities, history and nature of trauma, and level of maturity of thinking.

Attorneys must help their child clients become effective self-advocates and problem-solvers in identifying, applying for, and securing needed services and benefits, and to better understand and take active roles if they wish in court proceedings, placement decisions, and other administrative actions affecting them.

Attorneys should encourage feedback from their clients and the clients’ families on the quality of their representation.

Attorneys should habitually reflect upon and assess the extent to which their personal opinions, values, and biases may affect the representation of their child clients.

In order to accomplish all the above, attorneys must have reasonable caseloads and the ability to retain experts without notice to adverse parties. Further, counsel must be adequately and promptly compensated for their work on behalf of their child clients. Programs that make available loan forgiveness for attorneys dedicated to child representation are invaluable for attracting and sustaining qualified and dedicated counsel to the field.

(3) The strengths of the child and family can be identified by learning what the child loves to do, how the child sees his/her “family” supporting them, what are the most important relationships in the child’s life; what other protective factors exist within their family and
community.

III. EFFECTIVE REPRESENTATION: MULTIDISCIPLINARY PRACTICE

Lawyers representing children need to understand the child in context,
which includes an appreciation of all of the legal and social issues related to the
presenting problem that is the initial or primary subject of the representation.
Representation of children should be conducted in a multidisciplinary
fashion that takes into account children’s place in their families4 and communi-
ties as well as the full range of systems in which the children are enmeshed.
The imperative to work in a multi-disciplinary fashion applies to both the repre-
sentation of individual clients and to efforts at system reform.

4
The Group recognizes that “family” is a broad concept that should be defined by reference
to the individual circumstances, identifying the people who play important roles in caring
for, supporting, and guiding the child.
 

IV. RECOMMENDATIONSFOR CHANGESIN LAW

Status as an alleged or adjudicated offender should not disqualify a youth
from eligibility for services through the child welfare system. Many children
charged with or adjudicated as delinquents continue to need services from the
child welfare system, or will need such services upon their release from any
delinquent placement where the conditions giving rise to their involvement in
the child welfare system (e.g., lack of a parental home to return to) remain
unresolved. Where the need for such services persists, allegations or adjudica-
tions of delinquency should not serve as barriers to the receipt of these services.
Parents and children should have a statutory right to counsel in CW pro-
ceedings. Children should have full party status in these proceedings. Not all
jurisdictions in the United States afford parents and children involved in child
welfare proceedings with a statutory right to court appointed counsel. Further,
children must be afforded full party status to ensure their right to participate at
all stages of proceedings involving their welfare.
A child has the right to attend and participate in hearings affecting them.

Children should have a right to appeal and to counsel on appeal.
The law should provide that representation in juvenile justice or child wel-
fare proceedings extends at least until the conclusion of the court’s
jurisdiction.6
Dependency jurisdiction established before the age of eighteen should be
subject to extension until at least age twenty-one, at the child’s option. Wards
of the court in the CW system should remain eligible for medical insurance
until at least age twenty-one.
 

V. RECOMMENDATIONSFOR FURTHER STUDY

How should these recommendations apply to children who cannot direct
the representation?

The Group recommends further study with respect to what it means to
direct the representation.

The Group recommends further study of measures that can be used to
accommodate the maximal and effective participation in the representation by
clients with disabilities.

To what extent should children have a right to counsel and/or a right to be
heard in proceedings other than JJ or CW?

Should states provide dependent youth with the option of a trial discharge
from care? A “trial discharge” enables a youth to opt out of continued jurisdic-
tion at the designated statutory age, but preserves the youth’s right to return to
jurisdiction within a specified time period if needed for the child’s well-being.
Should state law define dependency jurisdiction as extending to any child
who meets the statutory definition up through age nineteen or until the comple-
tion of high school?

What legal or administrative barriers exist that currently prevent lawyers
from extending their representation to other related matters beyond the original
JJ or CW proceeding?

Should such barriers be removed?

I. INTRODUCTION

The Working Group on Representing Children as Members of Communi-
ties was given the task of exploring the challenges of practicing in an environ-
ment that in many ways is hostile to children. The Group first discussed the
validity of the assumption that society is hostile to children and agreed that in
critical sectors of our society there is an open antagonism demonstrated
towards children. The sources of that hostility are arguably the most powerful
and influential pillars of our society: the media, the political and legal systems,
as well as the educational system. The Group began by identifying concrete
examples of this antagonism and then set about cataloging the institutions and
dynamics that, if changed, would be most relevant to child advocates.
The Group included policy makers, professors, current and former defend-
ers and civil legal service providers. The composition of the Group proved to
be a rich conglomeration of respected child advocates who were all notable in
their field both locally and nationally. The bias evident in the Group was that
most of the representatives were or had been employed by defender or civil
legal services providers. Each representative brought unique insights into the
challenges of representing children and those insights led to the Group’s focus
on four principal themes for recommendations directed at juvenile defender
offices and civil legal service providers.
The recommendations and commentary are grouped within the following
four major directives:
1. Legal representation must be client-directed and community-centered
2. Legal service providers must allow for an expanded role of their attorneys
3. Defender and civil legal service providers must design and implement effective
systems for quality control and increase accountability for the care and treatment
of clients
4. Training of attorneys in these offices must be based on best practices that are
juvenile specific, consistent and standardized nationally
Each directive is followed by commentary designed to explain the deliber-
ations and thoughts of the Group as it worked from general ideas to the specific
recommendations. With some recommendations, the rationales were identical
and redundant commentary was eliminated. The Group also provided cautions
to policy makers where there were recognized challenges to implementing a
specific course of action, but where the Group reasoned that the potential gain
realized by implementing the recommendation outweighed the risk of harm.
What follows are the directives, recommendations, commentary and cau-
tions from the Working Group on Representing Children as Members of
Communities.

*This Working Group consisted of the following members: Cyn Yamashiro (Primary
Report Preparer and Group Moderator), Martha Stone (Group reporter), Simmie Baer, Mary
Berkheiser, Kim Brooks-Tandy, Kathi Grasso, Greg Ivie, Dorene Kuffer, Ann Moynihan,
Michael Pinard, Onie Riley, and Leticia Saucedo.
 

II. LEGAL REPRESENTATION MUST BE CLIENT DIRECTED AND COMMUNITY CENTERED

Recommendation One: Juvenile defenders and civil legal service providers must expand their role as advocates to include a community focus and partnership to include community education and systemic advocacy. This role expansion must be informed by research, client voices, positive outcomes and cultural competence. The purpose of the expanded role is to:

1. Achieve better dispositional outcomes for clients
2. Educate the community about who the clients are
3. Diffuse the hostile environment for children
4. Achieve a better understanding of our client’s lives
5. Enhance and improve resources made available to our clients
6. Improve our credibility with various communities, stakeholders and decision
makers

     Commentary: For too long, adult and juvenile defenders, as well as civil legal service providers, have limited their roles to the legal representation of their clients. However, while the client-centered model addresses the needs of individual clients, juvenile defenders and civil legal service providers have long overlooked their possible community role. In essence, both criminal and civil legal services providers have not been fully engaged in the communities where their clients come from, live in, and return to. Their services have tended to be reactive to particularized legal circumstances involving their clients, without
incorporating a proactive component that seeks to reach individuals and communities prior to their involvement with the various criminal and civil systems. The above recommendation highlights the need for juvenile defenders and civil legal service providers to become community partners whose role is broader than individual client representation. By incorporating a community education component, these legal services offices can bridge the divide that often exists between these offices and the communities they serve. More  concretely, these offices can provide information to communities that are relevant to their legal needs. Examples of these types of outreach include “know your rights” seminars, which teach individuals their Fourth and Fifth Amendment rights, how to handle “confrontations” with law enforcement authorities, stressing the importance of staying in school and attaining an education, and the collateral consequences of juvenile convictions.
In addition, by limiting their services to the individual clients they serve, juvenile defenders and civil legal service providers fail to address the systemic issues often involving both criminal and civil issues that ensnare the clients and create obstacles for their communities. Juvenile defenders and civil legal services should seek to change the systems in which they operating by engaging in systemic advocacy.

Recommendation Two: Juvenile defender and civil legal assistance providers must develop a component of their offices to allow for the expansion of the role of attorneys to act as community/stakeholder liaisons. This attorney(s) would be responsible for outreach into the community, attending meetings with stakeholders and provide a presence at any relevant transaction where the interests of the client base may be affected. Efforts in this area must be leadership-directed.

Cautions:
1. There may be tensions where advocates align themselves with parties with a perceived adverse interest;
2. There is the possibility that those attorneys will be designated as the ones who are responsible for making change, eliminating required efforts by other stakeholders;
3. Time consuming;
4. There is the potential that you will saturate the clients with services and that the
provider will reach a point of diminishing returns.

      Commentary: In order to fulfill the roles set out in Recommendation One, attorneys must develop relationships with their client’s communities. Often their clients come to them with an assortment of complex problems that require multifaceted solutions. To serve their clients more fully, as well as to fulfill their role as community stakeholders, juvenile defender and civil legal services officers must have a community presence. Attorneys are particularly well suited to serve as community/stakeholder liaisons because they work
within systems that present many challenges to these communities, they are able to translate the benefits and downfalls of these systems to these communities, and they could provide information to these communities about possible legal avenues. In turn, attorneys have much to gain from acting as community/ stakeholder liaisons. Perhaps most importantly, this expanded role would provide attorneys with a deeper and more complete picture of the various issues that affect their clients’ lives. They could also possibly develop relationships with various community-based service providers that can aid their clients.
In order to fulfill these expanded roles, attorneys must have opportunities to interact with the communities they serve. Thus, their officers must create both the expectation of this expanded role and the avenues for attorneys to flourish in this role. As a result, juvenile defender and civil legal services offices must create a leadership-directed norm that sets out this community- rooted role. It is not enough for staff attorneys to take on this role, as the responsibility for interacting with the community would then fall disproportionately on those who are interested in serving in this capacity. Moreover, this particular model would frustrate the goals set forth in the above recommendation by creating divides between those attorneys who serve their communities in this way and those who abide by the traditionally narrow client-centered legal role. Rather, a leadership-directed norm is required to create a culture that engages the community in the ways set forth in this recommendation.

Recommendation Three: In an effort to diffuse the hostility that children are subjected to, attorneys must become more sophisticated at working with all forms of the media. Attorneys should carefully choose issues that have the greatest effect on positive outcomes for children.

The attorneys must take advantage of the full range of media sources including letters to the editor, community newspapers, Spanish language media and op-ed pieces. The attorney should work to develop relationships with individual reporters. If possible, the lawyer should use public relations experts to help with language and strategy and partner with clients to give a voice to children in an effort to educate the public.

  Cautions: There are issues of confidentiality when engaging the media and many legal service providers have policy restrictions on communicating with the media.

     Commentary: This recommendation is similar to Recommendations One and Two in that it advances an expanded role for juvenile defenders and civil legal service providers. It recognizes that legal issues not only play out in courts, but in various forms of media. While attorneys recognize the effect the media has on how the public perceives their clients, as well as issues involving juvenile justice, attorneys all too often do not advocate for their clients in all available fora. To help reduce the level of hostility directed at their clients, juvenile defenders and legal services attorneys must become adept at working with the media. These possible media sources are wide ranging, and include national and local media in all forms—television, radio and newspapers. For example, attorneys can write letters to the editor in response to stories that impact their client populations, or they could write op-ed pieces that highlight these issues for the readership. This has the benefit of aiding not only their individual clients, but also sensitizing the public to the various delicate issues that often confront their client populations. In sum, attorneys should take whatever
opportunities are available to provide a full and accurate picture of the issues that confront their clients, as well as the systems within which they must advocate. This commentary recognizes that interaction with the media requires particular skill and delicacy. Thus, juvenile defender and civil legal services providers should engage public relations experts to help with strategy, which includes figuring out which issues to address. Also, working with the media presents various ethical issues relating to, inter alia, client confidentiality.
Attorneys must pay particular attention to these ethical issues when dealing with all forms of media.

Issue for Further Study: While there was consensus that all court records should be confidential because of the potential of stigmatizing the child and further jeopardizing their opportunities, there was no consensus on whether to open or keep closed juvenile justice and child welfare proceedings.

III. LEGAL SERVICE PROVIDERS MUST ALLOW FOR AN EXPANDED ROLE OF THEIR ATTORNEYS

Recommendation One: Given the complex nature of a child’s life and environment, the role of the attorney must be expanded and encompass a holistic model of representation and advocacy.

     Commentary: Children, including adolescents do not commit crimes in a vacuum. Multiple contingencies encourage and coexist with the delinquent behavior. Attorneys representing children must examine the child’s entire life timeline in order to assess the nature of the multiple needs in the case. The realm of representation must continue to expand in response to a child client’s individual needs.

Points of identified areas of expanded representation exist in pre-adjudication and post-disposition arenas. In the pre-adjudication phase of representation, attorneys must provide zealous advocacy at probable cause hearings with a focus on release of the child into the community with appropriate monitoring, if required. All of the issues that may be an integral part of the offending behavior such as truancy, special education status, mental health and medical disabilities need to be assessed in the pre-adjudication stage.
Collateral issues that stigmatize the child client at the initial stages of court involvement, such as imposing gang related prohibitive conditions, must be challenged. The practice of including the child in police, school, or court databases with derogatory and damaging labels must also be challenged. Post-disposition representation is an essential part of a holistic model of advocacy. Multiple barriers prevent a child from achieving a level of rehabilitation ensured by statute and success in the community following adjudication and/or release back into the community.

Effective post-disposition advocacy would include an assessment of the quality of any experience in confinement, including programming, conditions and duration. Ineffective programs and services should be evaluated and challenged. Community based alternatives must be developed. The barriers to re-entry into the community must also be eradicated. Transition services must be developed to facilitate a successful re-entry.

The pervasive issues of immigration, expungement, housing, and employment must also be considered when representing children in this model of advocacy.

The center of this holistic model is the child client. Although the role of the attorney is expanded in an effort to achieve the most full serviced outcomes for the child, no one person is responsible for providing all of the services. The model is a blending of the best representation available in the civil and criminal systems, combined with providers from an array of the other disciplines. It is this interdisciplinary model of advocacy that is best able to ensure a continuity of representation from pre-adjudication through post-disposition, whether the child is in the delinquency or welfare system.

Recommendation Two: Children at risk of being transferred to or transferred from the adult system shall be provided counsel with expertise in both systems.

     Commentary: The recent and developing research in the area of adolescent brain maturation significantly affects this area of law. The Supreme Court decision in Roper v. Simmons also provides the basis for the development of new strategies to challenge the statutes that require adult sanctions for certain criminal behavior. Attorneys must be cognizant of these new developments and how they interact with the current status of state and Federal law.

Recommendation Three: Attorneys must work with interdisciplinary teams in order to best address and utilize issues of their clients’ psychosocial development.

     Commentary: A child or adolescent’s psychosocial development is a critical aspect in every case. The majority of child clients have experienced trauma, and suffer from mental, physical, and/or educational disabilities. We also know that their natural state of immaturity is compounded and enhanced by their state of limited brain development. These adolescent development issues must be examined by counsel and the team in order to develop legal strategies, theories and a disposition plan.

Recommendation Four: The development of a cohesive model of representation including civil and criminal legal services must be supported within the respective venues and offices.

     Commentary: A symbiotic culture of reliance must be created and supported by the directors of civil and criminal legal service offices. Adequate funding plans for this model of blended representation must be developed and supported by the offices, courts and communities. It is this enhanced and expanded concept of holistic representation that will support a team in challenging existing practices that continued to stigmatize our clients and prevent them from obtaining services to which they are entitled.

IV. DEFENDER AND CIVIL LEGAL SERVICE PROVIDERS MUST DESIGN AND IMPLEMENT EFFECTIVE SYSTEMS

DEFENDER AND CIVIL LEGAL SERVICE PROVIDERS MUST DESIGN AND IMPLEMENT EFFECTIVE SYSTEMS FOR QUALITY CONTROL AND INCREASE ACCOUNTABILITY FOR THE CARE AND TREATMENT OF CLIENTS

Individuals and organizations that provide services to children should be held to high standards, and should work within systems that demand accountability and provide meaningful oversight. It is incumbent upon attorneys representing children to understand the public and private service delivery systems in which their clients are involved, and to hold systems accountable that provide for the care and treatment of children and families. Conversely, those attorneys who provide legal representation to children must also work to ensure that the legal service delivery system achieves high standards, and effectively
meets the needs of the client.

Recommendation One: Juvenile defender offices and civil legal assistance providers should ensure that an adequate system of accountability for legal service delivery is in place that is responsive to client needs and can identify and document appropriate outcome measures.
 

     Commentary: Defender and civil legal assistance offices should strive to ensure excellent in their legal services, using nationally recognized standards of practice. Offices should engage in periodic strategic planning to develop measurable goals and outcomes for their services, and then engage in periodic internal and external evaluation of goals and outcomes. Offices should create effective data systems to document services and outcomes. Services should be tailored to meet the unique needs of clients relative to race, gender, ethnicity, disability.

For contract or appointed counsel not part of defender or civil legal assistance provider offices, the state or county shall establish a system of quality assurance through an independent evaluation to ensure competent representation.

The National Juvenile Defender Center has developed a protocol for assessing state indigent juvenile defense systems, and has released reports in more than a dozen states to date regarding access to and quality of representation for youth in the delinquency system.1 Assessments also highlight promising approaches and innovative practices within the state and offer recommendations to improve weak areas.

Standards for indigent juvenile defense services have been developed in several states, and should become a staple for practice within defender offices. Similarly, a number of national publications are available that provide guidelines for juvenile delinquency representation, and improving court practices for juvenile delinquency cases. Some of the more recent publications are listed below:

1. American Council of Chief Defenders, National Juvenile Defender Center, Ten Core Principles for Providing Quality Representation Through Indigent Defense Delivery Systems (January 2005).
2. National Council of Juvenile and Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases (2005).
3. American Bar Association, Standards for Representation of Children in Abuse, Neglect and Dependency Cases.
4. American Bar Association, Standards for Representing Children in Child Custody Proceedings.

Recommendation Two: Attorneys for children must hold service providers accountable for their care and treatment of their clients by challenging ineffective and/or harmful programs, policies or practices which do not effectively meet the individualized needs of clients relative to race, gender, ethnicity, or disability and by understanding and encouraging the use of best practice models, including evidence-based programs.

     Commentary: It is incumbent upon lawyers for children to understand and scrutinize the public and private service providers to whom the care and custody of child clients are entrusted. Lawyers should visit clients in residential facilities and other programs in which clients are placed, and question practices that may offend the civil rights or due process rights of clients, or which may otherwise impede their treatment and care. Lawyers should make judges aware of abuses or other concerns regarding the treatment and care of children by providers, and should, where appropriate, continue to invoke the review powers of the court when programs are ineffective, unnecessary and/or abusive.

Lawyers should question providers at disposition hearings about services offered that are not conducive to the client’s needs, and/or which may impose harmful effects on the child and his or her family and their treatment needs, and advocate for programs that have proven positive outcomes for youth.

The Group agreed that far too often, juvenile defender offices and civil legal service providers lack the resources or the time to effectively scrutinize and remedy shortcomings that may exist in facilities or services provided to their clients. Effective and professional service and facilities providers were deemed critical to putting the client in the best position possible to succeed.

The Group recognized that if advocates were precluded from bringing to light ineffective treatment practices then the attorneys and their offices were failing the clients in a vital component of representation.

1. For more information, go to www.njdc.info to review Assessments in states such as Ohio, Kentucky, Washington, Maryland, Georgia, North Carolina, Texas, Louisiana, Maryland, Virginia, Montana, and Maine.

V. TRAINING OF ATTORNEYS IN THESE OFFICES MUST BE BASED ON BEST PRACTICES

TRAINING OF ATTORNEYS IN THESE OFFICES MUST BE BASED ON BEST PRACTICES THAT ARE JUVENILE SPECIFIC, CONSISTENT AND STANDARDIZED NATIONALLY

The participants in this Group recognized that the changes in representation that they are suggesting cannot occur without extensive training of practitioners. Additionally, in some ways it was seen that the Recommendations of Fordham and this Group regarding training are not an end in themselves, but rather, ongoing. The changing environment of the law and child development, as well as obtaining the skills necessary to effectively represent children, is on going and never-ending. These Recommendations are made with the caveat
that the burden of providing educational and skills-building programs should not come at the exclusion of other efforts.

Recommendation One: All attorneys representing children must have the appropriate training in the following:

1. Limitations of and impact of their power
2. Understanding of current adolescent development
3. Incorporation of adolescent development into legal skills
4. Effective child interviewing skills
5. Existing juvenile defense standards including the National Juvenile Defender Center Ten Core Principals and the standards of the National Legal Aid and Defender Association and the American Bar Association
6. The cross-disciplines of juvenile justice and child welfare
7. Leadership skills to foster systemic change and community empowerment

     Commentary: To incorporate fully a holistic representation model into current practice it was strongly suggested that lawyers who represent children be continually trained. The attorney for the child wields tremendous power and influence over their client. Accordingly, it was suggested that all attorneys representing children have specific training in interviewing children with a focus on realizing what their limitations are. The Group was aware of the impact power plays in this attorney/client relationship and therefore it was suggested that all attorneys become aware of this impact and the ways it can be
used and misused.

The Group recognized that the representation of children is as much a legal practice as it is a professional that incorporates many social aspects of practice, specifically child development. The Supreme Court’s decision in Roper v. Simmons,2 affirms that children are different and that attorneys representing children have an obligation to learn about those differences and utilize the existing social and psychological research in the representation of their clients. The aspiration is that attorneys who represent children will look upon the interdisciplinary nature of their practice as “normal” and essential rather than as an additional task that must be performed.

This Group also recognized that other agencies and groups interested in the representation of children have already drafted suggestions for attorneys in this field. It is incumbent upon the child’s attorney to be knowledgeable of those suggestions and standards and to incorporate them into their practice. Because so many of the children involved in the juvenile justice system are involved in the child welfare system, the Group believes that attorneys should be trained in and be aware of both systems.

Finally, this Group spent a considerable amount of time discussing the role that attorneys for children have in the communities they (both the client and attorney) are members of. It was agreed that children’s lawyers have an obligation to participate fully in these communities and be actively involved in conversations that take place which affect our clients. To be able to effectuate change on behalf of our clients, attorneys must be trained in leadership skills.

As we are invited to more tables and engage in more discussions about systems and services, we will be representatives that are more effective for our clients.

Recommendation Two: Juvenile defender and civil legal service providers shall create specialized divisions where attorneys only represent children; but share an emphasis on trial skills training in order to instill a culture of aggressive advocacy.

     Commentary: This Group agreed that the practice of representing children is a specialized practice and should be treated by defender and legal service offices as such. The representation of children should not be part of an attorney’s other tasks in such offices, but rather, should be the only work that attorney performs. The attorneys in this specialized role should not focus solely on dispositional practice, but should be instilled in a culture of aggressive advocacy, stressing the importance of trial skills training.

Recommendation Three: Public Defender’s offices shall end the practice of using juvenile delinquency as a training ground for adult felony trial work.

     Commentary: The participants were disheartened by the practice of Public Defender offices using Juvenile Justice as a training ground for felony trial work. This practice infuses that Division with the sense that juvenile work is less important than working with adults. Also, this attitude gave the impression to the attorneys, and others in the system, that the consequences to the youth are less. Consequently, the attorneys were “in training” and could make mistakes and were not viewed as performing as “important” a service to the office or the clients. Both the UNLV Conference and Fordham disabuse this notion. Rather, juvenile work is seen as a specialized field (as discussed in Recommendation Two) which demands the use of the best resources and most skilled attorneys who wish to invest their careers in representing children.

In contrast to the usual practice of Defender Offices, the members of this Group agreed that the appropriate career path for juvenile defenders is to require that adult felony work be a predicate for practicing in juvenile justice. This will ensure that only aggressive advocates who want to work with youth will be in juvenile court.

Recommendation Four: Law schools shall provide training that emphasizes holistic representation of children as a means of minimizing the harm to child clients by fragmenting their representation.

     Commentary: The Group recognized that many law school clinical offerings compartmentalize child advocacy in ways similar to practitioners. For instance, separate clinical programs exist for juvenile delinquency, for child welfare and for educational advocacy, forcing law students to choose among the three at law schools that offer all options. At other schools where the options are more limited, law students are exposed to narrow and limiting roles that attorneys play. In addition, few clinical or other law school opportunities provide for the exposure to legal representation of children using multiple
forms of advocacy, including individual legal representation, administrative and legislative advocacy, class action litigation. While it is unrealistic to expect that law students can thoroughly become expert and learn a curriculum in all fields, there can be unique partnerships created among clinical faculty to reduce the fragmentation and result in a more holistic approach to representing the child. For instance, a child welfare clinic representing children in foster care can also offer representation to that child client in any educational issue (most often special education) that the child may present with. That clinic
could then pair with a criminal or juvenile justice clinic to offer that same child legal representation if the child is arrested and offer representation in conditions of confinement. This provides a “one-stop shopping” approach for the child who is then not forced to interact with numerous attorneys and law students. Furthermore, it allows a collaborative partnership to develop among supervising attorneys and law students, and broadens a law student’s understanding of the power of providing holistic representation to the child.

There was a lot of discussion around gaps in law school clinical offerings that match gaps in legal representation of children and could be filled by expanding clinical offerings in such areas. For instance, it was suggested that a clinic could focus on re-entry issues when a youth returns from the juvenile justice system. Another example of need related to expungement issues of juvenile records or of child welfare substantiations.

Recommendation Five: Law Schools should expand clinical offerings and other opportunities to include non-traditional models for ignored or underserved populations such as those needing post-dispositional representation.

These could also include efforts to address pre-adjudicative issues such as removing children’s names from gang registries and immigration issues.

     Commentary: A consistent theme throughout the working sessions was that law schools consistently fail to prepare students adequately for the practice of law. Applying that theme to the representation of children, the Group concluded that law schools limit the concept of legal representation to the traditional, narrow focus of litigation. The Group’s directive to expand the role of the attorney requires that law schools take steps to educate their students accordingly. This new, expanded role necessarily means that students must
learn that the practice of law transcends motion writing and oral advocacy and requires that students approach the representation of children from a holistic perspective that is highlighted in recommendation number six. Clinical education was determined to be a vital part of legal education and perfectly suited to introduce students to the concept of holistic representation. As such, the Group identified potential types of legal clinics that were ripe for exploration in both the pre-adjudicative stages as well as post-disposition stage. Children re-entering the community after confinement was seen as a particularly hopeful option as the Group agreed that very little services are offered this group of children.

Recommendation Six: Law schools should partner with other professional schools to develop interdisciplinary teams and a curriculum that addresses a holistic and interdisciplinary approach to representing children.

     Commentary: The Group felt strongly that legal representation of children cannot be performed in a vacuum. Too often attorneys for children are well trained in the law and courtroom advocacy, but are unfamiliar with the social, emotional, and physical aspects of a child’s well-being. Being uninformed as to the developmental stages of children places the attorney at a disadvantage when advocating for appropriate services for them.

Similarly, without understanding such concepts as reactive attachment disorder, it is difficult for the attorney to be knowledgeable about an appropriate placement for the child. Furthermore, the Group discussed how other disciplines and experts are crucial in determining proper outcomes for children. For example, since attorneys are not well versed in the evaluation of particular models of service delivery (e.g. is multi-systemic therapy more effective than functional family therapy?) or placements, (is one particular residential facility more appropriate than another?), the attorney must rely on experts outside of the legal field.

The Group felt that it was important to emphasize to law students during their formative years of training that they need to recognize the limitations of their expertise and be humbled by their power. Too often, it was felt, law students are in danger of graduating with an arrogance and belief that they know it all, without realizing that their advocacy can only be effective to the extent it is informed by other disciplines.

There was also a recognition that law students (and attorneys) often perceive the legal representation of children as involving too much “social work” practice which then makes students refrain from wanting to pursue a career in this area. By infusing the child law curriculum with concepts from other disciplines, the role of a child attorney can be re-conceptualized, and law students can be trained to understand how such disciplines form the necessary underpinnings for aggressive legal advocacy.

The Group had knowledge of a few unique programs around the country where a partnership with a law school program, graduate school of social work, or psychology, as well as a medical school had provided opportunities to create interdisciplinary teams of law students, social work students, psychology graduate students as well as medical students and pediatric and psychiatric residents.3 These teams had the consequence of allowing students in all these professional schools to break down any preconceived barriers about each
other’s professions, as well as enrich the legal advocacy by providing holistic representation to the child.

Recommendation Seven: Law Schools should support loan forgiveness initiatives to assist attorneys who want to pursue a career in representing children.

     Commentary: The high cost of a legal education was identified as a fundamental problem whose consequences are profound. The Group considered that the cost of a legal education necessarily made it impossible for many students to pursue a career working in the public interest. The Group agreed that most if not all avenues for legal work with children are with public interest or governmental agencies. The Group observed that the majority of students in law school must borrow substantial amounts of money to pay for tuition and living expenses. The large sums borrowed require monthly payments after
graduations that, in many cases, rival a residential mortgage payment. In order to ensure a stream of consistently high achieving, inspired and qualified attorneys, the Group concluded that law schools must collaborate with legal service providers and the public interest community to provide a means to relieve the financial burden borne by a majority of graduating law students. Some examples of existing models include school-sponsored fellowships with public interest organizations, loan forgiveness in exchange for a specific number of years with a public interest organization and stipends for new graduates who are
placed in a public interest setting.

Recommendation Eight: Juvenile defender and civil legal services shall provide and/or promote opportunities for education and training to legislators, policy makers, prosecutors, judges, and the private bar in adolescent brain development, immigration consequences, collateral consequences, evidence-based practices and other areas that will expressly promote just outcomes for children.

The participants discussed the ways in which individuals and groups who are hostile to our clients can be made to explore their views about youth involved in these systems. In addition to being present “at the table” as discussed in Recommendation One, it was decided that it is incumbent upon juvenile defender and civil legal service agencies to encourage training for other members of the system. That training and education can occur in any number of ways: making ourselves available to go to their training events and make
presentations, inviting them to our training events, or creating training events specifically for these populations. “Teachable moments” can also occur in everyday conversations in meetings or in the hallways.

2. 543 U.S. 551 (2005).

I. INTRODUCTION

This Working Group’s primary task was defined as “explor[ing] the role of children’s attorneys in assessing best interests and protecting their clients.” Participants recognize that ten years after Fordham, “best interests” advocacy and best interests models of representation frequent many jurisdictions and individual attorney practices when the client is a child.1 The Group acknowledges that some attorneys are subject to statutory mandates or judicial expectations to serve as a best interests guardian ad litem that may conflict with the client-directed role. Other attorneys decline to use a traditional client-directed model and advocate for what is in the child’s best interests because:

(a) it is a familiar role that emulates the normative parent/child relationship;2

(b) they believe their role is to “take care of” of the child, or they despair at the inability of the state protective system to perform its role adequately and, therefore conclude it is their responsibility to protect the child from harm by advocating for what they (or a social worker, therapist, or other third party) believe is in the child’s best interests;

(c) attorneys like to win and best interests advocacy is perceived to be the least risky approach and the position that is most likely to please judges;

d) ambivalence about the wisdom and efficacy of giving “voice” to young children or to youths with complex backgrounds, multiple and competing influences, and limited emotional or intellectual capacities; and/or

e) attorneys have different awareness or perhaps lack understanding of developmental issues and the impact that race, ethnicity, class and culture may have on the child’s decision making. Group members agreed that too many attorneys are insufficiently trained and do not recognize the distinctions between the client-directed versus attorney-directed roles.

Participants unanimously reaffirmed the Fordham commitment to client- directed representation. In order to ensure the actualization of the Fordham model, the organized bar and contracting agencies that oversee or supervise attorneys in each state must instill the client-directed ethic, require and provide the specialized training and support necessary for attorneys working in this complex field, and monitor behavior and results to ensure that client directed representation is the norm.

The following report outlines the Group’s recommendations. The corresponding commentary summarizes Group discussions and reasoning as participants arrived at the recommendations.

*This Working Group consisted of the following members: Barbara Kaban (Primary
Report Preparer and Group Reporter), Frank Cervone (Group Moderator), Annette Appell,
Elizabeth Calvin, Chris Gottlieb, David Kozlowski, Catherine Krebs, Wallace Mlyniec,
Stacey Platt, Jennifer Renne, Mary Ann Scali, and Marvin Ventrell.

1. Although Group members agreed that the advocating for the child’s best interests instead
of the child’s expressed wishes is never appropriate in delinquency representation, there are
states (e.g., Tennessee and Wyoming) that are reported to authorize or at least tolerate such advocacy in delinquency representation.

2. The Group articulated various possible motivations for “acting like the parent” in a best
interests role, including: seeking to protect the child or to offer a protective position; distinguishing the respective authority levels of parent and child; or advancing a view of child- raising in which adults are assumed to “know best” or in which children may have a limited “voice” in important matters.

II. RECOMMENDATIONS

Recommendation One: A lawyer appointed or retained to represent a child in a legal proceeding should serve as the child’s lawyer, regardless of how the lawyer’s role is labeled or the age of the child.

Commentary: Ten years after Fordham and the promulgation of ethical guidelines that recognize a child’s right to an attorney who advocates for the child’s expressed wishes, there still exists a pervasive lack of clarity about the attorney’s role when the client is a child. While some courts and state laws recognize a child’s right to a zealous advocate acting in the traditional attorney- client role, others mandate that attorneys represent children’s “best interests.” Participants in this working Group were clear that best interests per se is not an acceptable standard to define the scope, goals or duties of legal representation, but may be one among many factors taken into account during representation. Participants debated when best interests might be viewed as an appropriate
consideration. All agreed that it has no place in delinquency litigation although some participants proposed that it might be a consideration at disposition. The application of client-directed lawyering to dependency representation was more problematic. The Group struggled with this premise: when the child articulates a stated position, the child is defining what she believes is in her best interests. One participant argued the best interests is not just a role, but also a legal standard. Others argued that effective client-directed advocacy includes reconciling and integrating best interests with the child’s expressed wishes.

Some jurisdictions require the attorney to exercise substituted judgment or to act as a best-interests guardian ad litem. The Group agreed that client direction is the preferred approach even in best interests representation. The Group resolved the dilemma by developing practice guidelines to assist all attorneys, regardless of the label applied to the attorney’s role.

The Group then considered several proposals arguing for the adoption of bright line age tests for the determination of the role of counsel in dependency cases. A presumptive age test would allow an attorney to assume the client- directed role for children above a certain age while advocating for the younger child’s best interests. Some argued that this strategy would preserve the older child’s “voice” in dependency proceedings. Others countered that by acquiescing to such standards, we are opening the door to the progressive erosion of a
child’s right to client-directed counsel. The Group rejected all such proposals and reaffirmed that all children, regardless of age, were entitled to an attorney who zealously advocates for their expressed wishes.

After a lengthy discussion, participants concluded that the Fordham Recommendations, the ABA/NACC standards and the practice guidelines outlined below provide all attorneys representing children with an adequate framework within which to implement the client-directed role. A lawyer appointed or retained to represent a child in a legal proceeding should serve as the child’s lawyer—that is, ascertaining and zealously advocating for her wishes, gathering and proffering evidence, eschewing lawyer testimony, declining to issue personal recommendations—regardless of how the lawyer’s role is labeled or the age of the child.