Defenseless children: achieving competent representation for children in abuse and neglect proceedings through statutory reform in South Dakota.

• Author: Wassenaar, Kasey L.

The appropriate role for the attorney representing children in abuse and neglect cases is the source of continuous debate nationwide. A range of views exists in South Dakota about the extent to which attorneys are adequately representing the child client. Child representation is governed on a state-by-state basis, and the South Dakota Legislature has yet to provide guidelines for attorneys representing children in abuse and neglect proceedings. The lack of guidance is causing confusion and frustration for attorneys working in this unique field of law, which ultimately reduces the quality of representation. In order for children to receive adequate representation it is critical for the South Dakota Legislature to articulate the duties of the attorney representing children in abuse and neglect proceedings. This comment discusses the ongoing debate about the appropriate role of attorneys representing children in abuse and neglect proceedings and explains other states' guidelines for attorneys working in these types of cases. The comment examines important areas of concern for attorneys working in this area of the law and compares South Dakota's current law with that of its sister states. Finally, it provides recommendations toward developing statutory standards for attorneys representing children in abuse and neglect cases in South Dakota.

1. INTRODUCTION

   In order for children to have justice in abuse and neglect cases, (1) children must be represented by "competent, independent, and zealous attorneys." (2) The child's attorney plays an especially important role in abuse and neglect cases in South Dakota because the attorney is charged with representing the best interests of the child. (3) The attorney's role in a best interests capacity requires the attorney to step outside his or her traditional role and look at the situation from a bigger perspective to determine what is in the best interests of the child. (4) For this reason judges often rely heavily on the recommendations of the child's attorney, (5) which requires competency at every stage of the proceedings. (6) To ensure that attorneys are providing sufficient legal representation in South Dakota, the legislature must clearly define the attorney's role and duties. (7)

   To put the issues surrounding child representation in South Dakota into some context, it is important to understand the difference between the attorney's role and the attorney's duties. (8) The role of the attorney encompasses the type of representation the attorney provides, specifically whether the attorney is representing the child's best interests or whether the attorney is acting in a client-directed role. (9) The attorney s duties are the actions taken by the attorney when representing the child, namely meeting with the child, engaging in discovery, or calling certain witnesses at trial. (10) Both the attorney's role and the duties required are fraught with ambiguity. (11) In South Dakota, ambiguity stems from the lack of statutory guidance and a lack of sufficient training necessary to provide adequate representation to the child. (12)

   This is a crisis gaining recognition across the country as child advocates work to enhance representation nationwide. (13) The lack of ethical or statutory guidelines can lead to frustration for child attorneys, which in turn leads to apathetic and passive representation. (14) South Dakota is not alone in trying to resolve this crisis. (15) Nationally, child advocates are indicating that there is a significant concern with the competency and adequacy of child representation on both a national and state level. (16)

   While it is important to realize the need for effective representation of children, it is also important to note the debate over what that representation should specifically entail. (17) The American Bar Association has produced working standards for attorneys representing children in abuse and neglect cases; (18) but the standards are not binding legal authority on South Dakota attorneys. (19) The ambiguity of an attorney's role and duties in abuse and neglect proceedings has sparked serious debate amongst attorneys, judges, social workers, and other child advocates in South Dakota. (20) Therefore, the lack of statutory law governing child representation in South Dakota a critical issue that specifically needs to be addressed by the legislature. (21)

   This comment begins by explaining the history and development of child representation. (22) It explains each type of representative involved with the child throughout the litigation process. (23) Further, it examines the statutory laws enacted by the states surrounding South Dakota, as well as the statutory laws currently in place in South Dakota. (24) It then examines the attorney's role in South Dakota and suggests that South Dakota enact a dual standard of representation for children in abuse and neglect cases. (25) Finally, it calls for the South Dakota Legislature to enact a statute solely dedicated to defining the duties of the best interests attorney in abuse and neglect cases. (26)

2. BACKGROUND

   1. HISTORY OF CHILD REPRESENTATION

      Child representation originated after the Civil War in what is referred to as the "child savers" movement. (27) Child savers were advocates that actively sought legal protection for poor and neglected children. (28) The "child savers" movement led to the 1877 New York enactment of the Act for Protecting Children, which granted jurisdiction to courts "over any child under the age of fourteen who, inter alia, was found to be begging or receiving alms, was destitute or vagrant, whose parent was 'vicious,' or who lacked 'proper guardianship.'" (29) BY 1900, other states followed suit and began enacting child protection statutes. (30) Under early child protection statutes, children were not afforded due process standards, nor were they afforded the right of appellate review. (31) Children had no legal standing and the court would determine parental guilt, or innocence, after an informal inquiry. (32) "Child savers" acts continued until 1967 when the United States Supreme Court decided the landmark case In Re Gault. (33) In In Re Gault, Gerald Francis Gault was committed as juvenile delinquent to a state industrial school without the protection of counsel. (34) Gault's parents filed a writ of habeas corpus with the Arizona Superior Court. (35) The Superior Court dismissed the writ, and Gault's parent's appealed to the Arizona Supreme Court. (36) The Arizona Supreme Court stated that it considered the Juvenile Code unconstitutional and a denial of the due process of law because it did not require that parents and children be "apprised of the specific charges, [did] not require proper notice of a hearing, and [did] not provide for an appeal." (37) The court further held that the "order relating to Gerald constituted a denial of due process of law because of the absence of adequate notice of the charge and the hearing; failure to notify appellants of certain constitutional rights including the rights to counsel and to confrontation, and the privilege against self-incrimination; the use of unsworn hearsay testimony; and the failure to make a record of the proceedings." (38) The Arizona Supreme Court however affirmed the Superior Court's dismissal of the writ. (39) The boy's parents appealed to the United States Supreme Court. (40) The United States Supreme Court reversed the lower court's dismissal of the writ, finding that state standards regarding juvenile delinquency proceedings must comply with "due process and fair treatment." (41) Although the Supreme Court specifically addressed child delinquency proceedings in its decision, almost identical procedures have been incorporated into state legislation regarding abuse and neglect cases nationwide. (42)

      The years following the In Re Gault decision became significant in the litigation, assertion, and legislation of children's legal rights. (43) The federal government responded to the spread of child rights awareness by4 passing the Child Abuse Prevention and Treatment Act (CAPTA) of 1974. (44) "CAPTA provide[d] federal funding to states in support of prevention, assessment, investigation, prosecution, and treatment activities...." (45) CAPTA also supplied the first definition of child abuse and neglect, as well as requiring that a guardian ad litem be appointed in every case involving abuse and neglect proceedings. (46) In 1996, the American Bar Association specifically defined the child's attorney as "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." (47) Beyond the decision in In Re Gault, CAPTA legislation, and the definitions provided by the American Bar Association, child representation has subsequently developed nationally on a state-by-state basis. (48)

   2. MODELS OF REPRESENTATION

      Attorneys representing children often play several roles that can be contradictory, and thus, confusing to the attorney. (49) Many attorneys struggle to balance the concept of representing the child and the child's best interests, (50) which is complicated even more when a young child cannot articulate his or her wishes. (51) Two main models have made their way into statutory law to try to resolve this ethical dilemma. (52) Both models have sparked disagreement nationwide as to whether the attorney should represent the child's wishes or the child's best interests. (53)

      1. Child's Best Interests

      Many states have enacted the "child's best interests model" (best interests model), where the attorney functions in a nontraditional role by representing the child's best interests rather than the child's express wishes. (54) In this role, the attorney must balance the needs and interests of the child independent of the attorney's own personal beliefs, values, and experiences. (55) The attorney may...