A case of neglect? Representation for children in the Florida dependency system.

AuthorKaur, Gurjot

Florida and Washington state, (1) while on opposite ends of the continental United States, unite on one point--they are among the few states in our nation that do not require the appointment of attorneys for children in dependency and termination proceedings. (2)

Why would this be cause for concern? First, Florida leads the nation in the number of child deaths from abuse or neglect after the Florida Department of Children and Families has intervened in the family's life. (3) Second, with the aid of the media, public sentiment is shifting. Children in the dependency system have been humanized. Some tragic, high-profile cases of child neglect and death (4) have shocked and captured the public's conscience, raising questions regarding the state's role as parens patriae and the efficiency of the Department of Children and Families and the Guardian ad Litem Program. These questions have prompted a candid discussion about the current state of the Florida dependency system and potential solutions to the identified problems. The children in the dependency system are no longer "their kids" or "those kids" but "our kids" and, thus, "our concern." (5)

Child advocacy groups have already begun analyzing Florida's system to identify areas for growth. First Star, a public charity with a mission of protecting the rights of dependent children, released three reports in 2007, 2009, and 2012 that evaluated the dependency systems and practices of each state. (6) Florida scored an "F" all three times, primarily for failing to implement a legislative framework that requires attorneys for children. (7) The appointment of an attorney ad litem to represent a child's legal interests in dependency proceedings is discretionary in Florida. (8) In contrast, states that scored an "A+" over the years, including Massachusetts and Connecticut, have legislation mandating children in the dependency system have independent legal representation. (9) First Star's report has been criticized for not focusing on outcomes, but rather on simply whether the systems provide an attorney for children. (10) However, First Star's Report Card Program specifically compares, lauds, and critiques positive and negative practices of each state and has firmly concluded that client-directed legal representation provides the best outcomes for children. (11) Child advocates have used this and similar reports to advocate for a revision of F.S. Ch. 39, or Florida's rules of procedure to require the appointment of an attorney for children in all dependency cases.

Past Legislation, Opposing Arguments, and a Step Forward

In 2010, the Florida Senate proposed legislation that mandated attorneys for some categories of children in dependency proceedings, but the bill failed in committee. (12) Although it is unclear why the bill failed, opponents of mandating attorneys for children have argued a lack of resources to achieve this goal. They assert that there will be a duplication of services and that the existence of the Guardian ad Litem Program, which represents a child's best interests and will be explored in the sections below, negates the need for the appointment of an attorney ad litem in a dependency case. (13) They have also expressed concern about any negative impact new legislation may have on funding the Guardian ad Litem Program, which they hold is the preferable system. (14)

The Florida Supreme Court Steering Committee on Families and Children in the Court, charged with overseeing issues relevant to Florida's Unified Family Courts, did not adopt a position on the proposed legislation in 2010, but its 2008-2010 report recommended tracking the issue. (15) Since 2010, the issue has expanded beyond Tallahassee and created a statewide phenomenon, invoking debate within every segment of the Florida dependency system, which has led to a reevaluation of the necessity and value of all parties in the dependency courtroom, including an assessment of any federal or state requirements for a guardian ad litem or attorney ad litem.

Recent amendments to the Florida Rules of Juvenile Procedure have also indicated a shifting tide toward increased rights for children. In 2012, the Florida Supreme Court amended Fla. R. Juv. P. 8.255 to help increase the presence of children at dependency hearings. (16) The amendment imposes an affirmative duty on a dependency judge to inquire why a child is not present for his or her hearing and to determine whether it is in the child's best interest to proceed without him or her. (17) The revisions arguably suggest continued movement toward attorney representation for children in dependency proceedings.

Federal Requirements: Child Abuse Prevention and Treatment Act of 1975

Florida, as a recipient of federal funds, is bound by the Child Abuse Prevention and Treatment Act of 1975 (CAPTA), which requires every state to appoint a guardian ad litem to represent a child in dependency proceedings. (18) The guardian ad litem may be an attorney or a court-appointed special advocate who has received appropriate training for the role. (19) CAPTA does not define all the roles and duties of a guardian ad litem, but does require him or her to perform at least two functions: 1) "obtain first-hand, a clear understanding of the situation and needs of the child"; and 2) "make recommendations to the court concerning the best interests of the child." (20)

Thus, CAPTA leaves states with three options in dependency proceedings: 1) appoint an appropriately trained attorney to represent the child; or 2) appoint an appropriately trained [nonlawyer] special advocate (21) to represent the child; or 3) both. In a state following the second option, the following issues emerge: 1) the nonlawyer is not bound by the same ethical considerations governing attorneys; 2) a nonlawyer advocate does not provide legal representation to the child and cannot accurately assess and elicit the needs of a child due to this limitation; 3) the term "represent" is a term of art in law that is traditionally found within the context of an attorney-client relationship; (22) 4) CAPTA does permit nonlawyers to make non-legal representations concerning the best interests of the child to the court; 5) many of the issues that arise in dependency surrounding a child's needs require an understanding of dependency law and the ability to provide legal advice and advocacy in order to properly represent the child (23); and 6) there is a risk that the nonlawyer special advocate may inadvertently engage in the unauthorized practice of law in making these representations to the court.

Florida's Approach Under CAPTA

To comply with CAPTA, Florida follows the second approach, i.e., the appointment of nonlawyer "special advocates" or volunteers to represent the best interests of a child in dependency proceedings. Florida mandates the appointment of a guardian ad litem, who represents the child's best interests--not legal interests--at the "earliest possible time" in dependency proceedings. (24) A guardian ad litem under Florida law includes:

a certified guardian ad litem program, a duly certified volunteer, a staff attorney, contract attorney, or certified pro bono attorney working on behalf of a guardian ad litem or the program; staff members of a program office; a court-appointed attorney; or a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, including, but not limited to, this chapter, who is a party to any judicial proceeding as a representative of the child, and who serves until discharged by the court. (25)

Although the option of appointment of an attorney ad litem exists, the general practice in Florida is the use of a nonlawyer volunteer to act as a guardian ad litem. (26) The statewide Guardian ad Litem Program, established by the Florida Legislature, is responsible for recruiting these nonlawyer volunteers. (27) As of May 2010, the Guardian ad Litem Program represented approximately 22,800 children with approximately 7,900 certified volunteers. (28)

The statewide Guardian ad Litem Program, established and funded by the Florida Legislature, previously appointed attorneys to represent the Guardian ad Litem Program and its agents. (29) The guardian ad litem attorney did not counsel the child, and any advocacy that he or she did on behalf of the child was technically done on behalf of the program and the nonlawyer volunteer. As of July 2012, however, the Florida Guardian ad Litem Program changed its standards of operations (2012 operational changes). The most significant change is that the Guardian ad Litem Program attorneys no longer represent the program or the nonlawyer volunteer, but the legal concept of "best interests" and are referred to as the child's best interest (CBI) attorney. (30) Further, the program itself is now represented by a general counsel and not the CBI attorneys.

The effectiveness of the 2012 operational changes remains to be determined. Arguably, it could cause more confusion in the courtroom as to the roles of the nonlawyer volunteer...

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