Colorado Continues Its History of Expanding Children's Voice and Representation in D&n Proceedings
| Publication year | 2023 |
| Pages | 34 |
BY ASHLEY CHASE AND CARA NORD
This article outlines Colorado's history of supporting legal representation of children and describes recent legislation affecting children's rights in dependency and neglect proceedings.
Colorado's history of championing children's voice and legal representation in dependency and neglect (D&N) cases set the stage for Colorado House Bill 22-1038 (HB 22-1038), which amends the Children's Code to provide client-directed legal representation to children aged 12 and older in D&N proceedings and other rights to children and youth involved in D&N proceedings. This article summarizes that history and HB 22-1038.
History of Children's Legal Representation in Colorado
HB 22-1038 is the most recent development in Colorado's long history of supporting children's voice and legal representation in child welfare cases. Colorado began recognizing the rights and interests of children in the child welfare system as early as 1901 with the creation of the Denver juvenile court, the second in the country.[1] In 1903, the General Assembly created Colorado's first statewide juvenile delinquency court.[2] Four years later, county-specific juvenile courts were created. These courts had original jurisdiction over children who were dependent or neglected.[3]
Colorado later enhanced the juvenile court process by advancing legal representation for children. In 1967, the US Supreme Court decided the seminal juvenile rights case In re Gault, recognizing children's due process rights in delinquency proceedings, including the right to counsel.[4] That same year, Colorado adopted the Children's Code, which allowed courts to appoint guardians ad litem (GAL) to children involved in D&N cases.[5] In 1971, the General Assembly modified the Children's Code to require the appointment of a GAL instead of leaving that appointment to the discretion of the court.[6] In 1974, the Child Abuse Prevention and Treatment Act (CAPTA) established a mandate for the appointment of GALs to represent children in every court proceeding involving an abused or neglected child.[7] At the time of the hearings for this federal legislation in 1973, Colorado was one of two states that already required a GAL to be appointed for children,[8] and Colorado was held out throughout the hearings as being a leader in child welfare.[9]
In 1987, the Colorado General Assembly recodified the Children's Code and required GALs appointed in D&N proceedings to be attorneys.[10] Attorney GALs provide best-interests legal representation for every child named in a D&N case throughout D&N proceedings.[11]
In 2000, the General Assembly created the Office of the Child's Representative (OCR),[12] one of the first statewide children's law offices.[13] In doing so, the legislature found that "the legal representation of and non-legal advocacy on behalf of children is a critical element in giving children a voice in the Colorado Court system."[14]Additionally, the General Assembly recognized the unique nature of child representation:
As children often have no resources with which to retain the services of an attorney or advocate, they are unable to efficiently provide or communicate to such an attorney or advocate the information needed to effectively serve the best interests or desires of that child, and they lack the ability and understanding to effectively evaluate and, if necessary, complain about the quality of representation they receive.[15]
The General Assembly required OCR to ensure best-interests attorney GAL services by providing high-quality accessible trainings to attorneys interested in becoming GALs, making recommendations to the Colorado Supreme Court chief justice regarding minimum GAL training and practice standards, and overseeing the practice of GALs to ensure compliance with relevant statutes, orders, rules, directives, policies, and procedures.[16] In 2004, the promulgation of Chief Justice Directive (CJD) 04-06 provided practice standards and guidance; this directive has been amended over time to reflect legal and practice developments.[17]
Even with practice standards, a best-interests model of child legal representation presents complications from the perspective of youth empowerment and advancing youth voice. Because a best-interests attorney represents their determination of what is in the best interests of a child, rather than a child's objectives, a child may feel unheard and/or unrepresented. In 1996, the American Bar Association (ABA) House of Delegates approved standards of practice for attorneys who represent children in D&N cases.[18] The ABA standards explicitly state that a child's attorney means "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client."[19] The ABA prefers this child attorney model over the attorney GAL model, where the attorney is not bound by the child's expressed preferences.[20]
In 2011, the Colorado Supreme Court held that a child in a D&N proceeding is not the client of their court-appointed GAL and that the obligations of confidentiality did not strictly apply.[21]This decision elevated dialogue throughout the country about the importance of attorney-client relationships in child welfare proceedings.[22] The ABA cemented its preference for client-directed counsel in 2011 when it adopted the ABA Model Act on Child Representation.[23] Although the 1987 Children's Code began providing for the possibility of counsel for children in addition to the appointment of a GAL,[24] this provision was rarely used in D&N cases and there was no
In addition to changing the model of legal representation for youth aged 12 and older in D&N cases, HB 22-1038 makes every child and youth a party to their D&N proceedings, establishes that children and youth have the right to attend and fully participate in all hearings related to their case, and requires GALs or CFY to provide children and youth with developmentally appropriate notice of court hearings.,
clear statutory guidance around when counsel was necessary.[25] Colorado worked to enhance youth voice under the best-interests model through practice standards,[26] but the state's legal model of child representation in D&N cases was not consistent with the ABA Model Act. Colorado's best-interests attorney GAL model started to change in 2021 when the Colorado General Assembly created the Foster Youth in Transition Program.[27]
Through this program, eligible youth[28] can choose to remain in the child welfare system or reenter the system and make important decisions about their lives while receiving the developmentally appropriate services and supports they need to assist their transition into adult-hood.[29] Consistent with these youth-centered purposes and principles, youth are provided a client-directed attorney, counsel for youth (CFY), when they reach age 18.[30] Youth have access to CFY until they reach the maximum age of foster care eligibility as determined by the federal government, which is currently age 21.[31] This was the first time youth outside of the juvenile justice system were mandated to have client-directed counsel under Colorado's Children's Code.
Legislative History of HB 22-1038
Building on the success of Colorado's Foster Youth in Transition Program, Representatives Lindsey Daugherty and Tonya Van Beber introduced HB 22-1038 in the Colorado House of Representatives on January 12, 2022.[32] Both representatives have experience with the child welfare system—Representative Daugherty as an attorney for children and Representative Van Beber as a former foster parent and educator. HB 22-1038 garnered strong support and moved quickly through the legislative process.
The House Judiciary Committee heard from supporters across the state and nation, including testimony from three individuals who had been involved in D&N cases as children. One of them highlighted some of the benefits as follows: "If this bill is passed, Colorado youth who are in the foster care system will finally know what it is like to be heard....It will help us feel like we have power in our lives and in our future. . . . I believe it will also help us become better problem solvers when we are adults . . . ."[33] The House Judiciary Committee voted unanimously to refer HB 22-1038 to the House Committee of the Whole, where it passed on a 64-0 (with 1 excused) vote on February 28, 2022.[34]
On March 3, 2022, Senators Dominick Moreno and Bob Gardner introduced HB 22-1038 in the Senate, where it was assigned to the Senate Judiciary Committee.[35] On March 16, 2022, the Senate Judiciary Committee heard support from state and national leaders and those with lived experience who had testified in the House, and then voted unanimously to refer HB 22-1038 to the Senate Committee of the Whole, with a request that it be placed on the consent calendar.[36] On March 22, 2022, the Senate voted 35-0 in favor of the bill.[37] Governor Polis signed HB 22-1038 on April 12, 2022, and it became effective on January 9, 2023.[38]
Basics of HB 22-1038
HB 22-1038's legislative declaration made numerous findings about the importance of children's voice and legal representation in D&N proceedings, including:[39]
● "Every child or youth has a liberty interest in their own health, safety, well-being, and family relationships."
●"Children and youth deserve to have a voice when important and life-altering decisions are made about them and have the right to high-quality legal representation by an attorney who will consider the child or youth's position and reasons for the position, provide independent counsel and independent investigation to inform those positions, and...
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