The use of next friends to seek appointment of counsel for dependent children who are incapable or unable to request appointment of counsel.

• Author: Campbell, Sarah J.
• Position: PUBLIC INTEREST LAW

Matthew is three. (1) He has curly brown hair, a creamy olive complexion, and a crooked smile that gives way to a pair of perfectly placed dimples every time he grins. Matthew doesn't grin often enough. Sharon, his mother, has struggled with chemical dependency for most of Matthew's young life. Matthew has been in and out of foster care his whole life, bouncing from one house to the next while Sharon "gets her life together." Unable to get her life on track, Sharon finally agreed to surrender her parental rights when Mathew was two, with the understanding that her son would be adopted by her cousin, Brad. Matthew went to live with Brad when he was 18 months old. Brad cared for Matthew as his own son, and aside from Sharon, Brad is the only parental figure Matthew has ever known.

For a moment, Matthew was lucky; he had hope and a future with Brad. But a homestudy revealed some areas of concern. Brad's background check brought to light criminal charges for retail theft and concerns about his employment. Without notice to Brad about the subject of the hearing, the court held a modification of placement hearing, and Matthew was summarily removed from Brad's care without the opportunity to say goodbye or get his worldly possessions. Matthew was picked up from day care that afternoon, driven across the state, and placed with an unfamiliar relative--someone Matthew barely knew. With the stroke of a pen and bang of the gavel, Matthew's relationship with Brad was instantaneously severed. Although present at the hearing, the Guardian ad Litem program took no action to prevent the abrupt removal of Matthew from his "daddy," his home, and everything familiar to him.

Desperate, Brad attempted to get an attorney to represent Matthew, in hopes that an attorney would be able to reunify Matthew with his family--or at least provide for a reasonable transition for Matthew. A legal services attorney agreed to directly represent Matthew, and the Department of Children and Families (DCF), a party to the action, moved for the appointment of counsel for Matthew. The court denied the motion, and neither DCF nor the Guardian ad Litem Program appealed. (2) As a caregiver, Brad was a participant to the dependency proceeding, but did not have legal standing to appeal the denial of counsel. Matthew, a three-year-old now living hundreds of miles from his home, had no ability to tell the court that he wanted a lawyer to help him see his "daddy," or to get his favorite toys and clothes, still sitting in Brad's home.

Florida Is Failing in its Provision of Representation to Foster Children

Matthew's story reveals a sad truth: Florida is failing in its provision of representation to children in the state's care. In a 2007 study of child representation nationwide, First Star, a foster youth advocacy organization, graded state modes of representation for children in dependency proceedings. Five states earned highest marks, or "A's." (3) Florida received an "F." (4) First Star's second study in 2009 showed some widespread improvement, as the number of states requiring client-directed attorney representation for foster youth in dependency proceedings increased. (5) Florida was not among those states. (6) First Star awarded Florida another "F." (7)

Advocacy groups and legislators have made a concerted effort in recent years to close the gap between Florida and other states with regard to representation of child victims in foster care proceedings. In 2008, The Florida Bar's Legal Needs of Children Committee began developing proposed legislation to provide counsel to children in some dependency and termination of parental rights (TPR) cases. (8) Their subsequent 2010 bill provided that children would be represented by attorneys in certain articulated cases, including children who have been in and out of home care for more than two years and in whose cases no TPR petition has been filed, children with developmental disabilities, and children prescribed psychotropic medication. (9) The bill died when it reached the Committee on Children, Families, and Elder Affairs. Today children in Florida still have no statutory right to independent legal representation.

Existing System Fails to Ensure All Children Who Need Counsel Receive Counsel

Some may argue that legislation providing representation for dependent youth is unnecessary as outlets for representation of youth in state care still exist. Many people believe that the legal needs of dependent children are adequately handled by the Guardian ad Litem (GAL) program. Unfortunately, the GAL program has never been able to represent all the children it is supposed to represent. Currently, the program estimates that it represents only 70 percent of the dependent children who...