The Justice System: it Has Forgotten the Children
| Publication year | 1991 |
| Pages | 689 |
1991, April, Pg. 689. The Justice System: It Has Forgotten the Children
It is not in books that Law can live,
but in the consciousness of the
profession as a whole.
Learned Hand
April 1991 has been named National Child Abuse Prevention month, and the nation is focusing its attention on abused and neglected children. The Children's Defense Fund has ranked Colorado among the nation's five worst states for its treatment of children.(fn1) Although Colorado is near the bottom of a list of states ranked by their support for children,(fn2) it is not unique. The National Advisory Board to Congress on Child Abuse and Neglect recently declared the current child abuse situation a national emergency. It characterized the system as "failing."(fn3)
ABA past-President L. Stanley Chauvin, Jr. opened the ABA Conference on Child Abuse in 1988 with a call to improve
. . . our local system of appointment of lawyers and guardians ad litem in child abuse related cases, clarify their roles and responsibilities, [and] require from them a higher level of knowledge and performance....(fn4)
In juvenile courts, guardians ad litem ("GALs") represent thousands of children for whom the minimal levels of adequate representation are not even approached. Delays, inadequate resources and a lack of accountability have created systemic abuse of children already abused or neglected by their families. In a recent case involving a twelve-year-old girl in the Colorado Court of Appeals,(fn5) the GAL did not call the girl to testify (he called no witnesses at all), despite the fact that adoption cases require the consent of a twelve-year-old.(fn6) Although the case had been open for over five years, the GAL made no recommendation at the termination hearing as to the termination of parental rights.
By failing to insist on a higher standard for GALs, the courts ignore the reality for children caught in the juvenile court process. Children need effective advocacy in a process which determines the nature of their very lives. Anything less is untenable. The courts have an obligation to address this critical issue.(fn7)
Colorado must respond to the silenced screams of abused children by insisting on a child-centered approach to advocacy for children.(fn8) Lawyers for children must be free to pursue the interests of their clients just as lawyers would for a sophisticated businessperson in a free market system. There are clear standards of practice in commercial law. Those standards are enforced, not only by ethical demands, but by the clients.
The current process can best be characterized as a "system-driven approach." Once the existence of abuse and neglect has been demonstrated, the needs of the child are often subverted to the perceived available resources of the community. GALs have little incentive to pursue zealously the needs of their clients. With a child-centered approach, on the other hand, the essential elements necessary for effective representation can be embraced. These essential elements can be characterized with the acronym "TEARR,"(fn9) which stands for Time, Expertise, Advocacy, Relationship and Results.
Attorneys for children need to free up the necessary time to represent a child adequately. It takes time to establish a relationship with the child. It takes time to know the parents,
schoolteachers, foster parents and others who have an important impact on the child. It takes time to meet with social services departments and review treatment plans. It takes time to seek out appropriate resources and identify expert witnesses to assist in the resolution of each case. GALs must appear at all court hearings, submit written reports with additional information and recommendations and seek emergency orders when necessary. These processes all take one of the most precious...
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