Changing the Discretionary Nature of Appointing an Expressed Wishes Child's Attorney in D.C. Child Welfare Cases

• Author: Molly Sprick
• Pages: 1337-1353

Changing the Discretionary Nature of Appointing

an Expressed Wishes Child’s Attorney in D.C. Child

Welfare Cases

MOLLY SPRICK*

INTRODUCTION

This Note will propose changes to the appointment of a child’s attorney for

abused and neglected children involved in the child welfare court system. To

illustrate the vital need for these changes as a remedy for ethical issues regarding

the representation of minor clients, this Note will begin with a theoretical

example.

Close your eyes and put yourself in the shoes of a twelve-year-old boy named

John. John is entering the judicial system for the first time, in a particularly trau-

matizing way. His mother, who recently lost her job and suffers from chronic

depression, is being charged by the D.C. family court with neglect. She has sent

John to school without lunch money for the past two months, and his teachers

have noticed his appearance has become increasingly unkempt as he appears to

not shower or brush his teeth frequently. John’s mother has a court-appointed at-

torney to represent her in the neglect case and John has a separate court-appointed

guardian ad litem (GAL) to represent him.

John’s GAL sits down with him before the first court appearance and asks John

how he hopes the court will resolve his neglect case. John immediately tells his

GAL that he wants to return to live with his mother because she takes good care

of him. He also discloses that he has no meaningful relationship with his biologi-

cal father and does not want to live with any extended family. The attorney con-

siders John’s opinion but, upon further investigation, decides that placement with

John’s father is in John’s best interest, at least until John’s mother gets help for

her mental health issues. John vehemently protests to this case objective but his

GAL assures him that he will also mention John’s contrary expressed wishes to

the judge.

At the fact-finding hearing, John’s GAL presents a glowing picture of John’s

biological father, explaining to the judge how he has a 3-bedroom home in D.C.,

how he has remarried, and how well he takes care of his two stepchildren. His

GAL also presents numerous witnesses that attest that John’s mother lives in a

small 1-bedroom apartment and has dealt with chronic depression over the past

year, making it difficult for her to maintain a job. Before he rests his case, John’s

* © 2021, Molly Sprick.

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GAL directly addresses the judge to inform him of John’s expressed wishes. His

GAL tells the judge that, despite the case he has just presented in favor of John’s

father and against John’s mother, the record should reflect that John has expressed

an interest in returning to live with his mother. The judge takes note of John’s

expressed wishes but ultimately finds in favor of John living, at least temporarily,

with his biological father, relying heavily on the negative information about

John’s mother presented by John’s GAL.

John walks away from the case disillusioned with the judicial system. He does

not understand how someone tasked to navigate him through the complicated

court system was able to advocate for a position that was directly contradictory to

his expressed wishes. Ultimately, John realizes that the outcome of his case

would have likely been the same if his attorney had never even presented his

expressed wishes.

While John’s case may seem hyperbolic, it is entirely plausible within the D.C.

child welfare system. This Note will argue that there must be a better way to bal-

ance the child’s alleged best interests with their contrary expressed wishes and

will present one such proposal to remedy this ethical dilemma.

I. BACKGROUND

“The child welfare system is a group of services designed to promote the well-

being of children by ensuring safety, achieving permanency, and strengthening

families.”

1

Abused and neglected children, who may be subject to any combina-

tion of physical, sexual, and emotional abuse or neglect—defined as the failure to

have their “basic physical and emotional needs” met

2

—often find themselves

entangled in the child welfare system.

3

Attorneys may play a variety of roles in

this system

4

but one of the most important is that of the child’s attorney, who pro-

vides legal representation for the abused or neglected child.

5

A child’s attorney

has clearly defined roles and specific goals to further in accordance with the attor-

ney-client relationship, however these goals differ depending on the jurisdiction

1. CHILDREN’S BUREAU, HOW THE CHILD WELFARE SYSTEM WORKS 2 (2020).

2. CENTERS FOR DISEASE CONTROL AND PREVENTION, PREVENTING CHILD ABUSE AND NEGLECT, https://

www.cdc.gov/violenceprevention/childabuseandneglect/fastfact.html [https://perma.cc/RMC8-JX43] (last

visited Apr. 26, 2021).

3. See generally DC CHILD AND FAMILY SERVICES AGENCY, WHEN CHILD WELFARE INVESTIGATES YOUR

FAMILY.

4. See generally Leonard Edwards, J., Representation of Parents and Children in Abuse and Neglect Cases:

The Importance of Early Appointment, 63 JUV. & FAM. CT. J. 21, 23 (2012) (discussing “the appointment of

counsel for parents and children in abuse and neglect and termination of parental rights cases”); SUPERIOR CT.

OF D.C., CHILD ABUSE AND NEGLECT ATTORNEY PRACTICE STANDARDS i [hereinafter PRACTICE STANDARDS].

5. See William Booth, Angela Orkin, James Walsh & John Walsh, Can Children’s Attorneys Transform the

Child Welfare System?, AM. BAR ASS’N: CHILD. RTS. LITIG. (Jan. 15, 2019), https://www.americanbar.org/

groups/litigation/committees/childrens-rights/articles/2019/winter2019-can-childrens-attorneys-transform-the-

child-welfare-system/ [https://perma.cc/66UR-UY6A].

1338 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1337