GSB Vol. 10, No. 1 - #1. A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings.

• Author: By Beth Locker and Melissa Dorris

Georgia Bar Journal

Volume 10.

GSB Vol. 10, No. 1 - #1.

A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings

Georgia State Bar JournalVol. 10, No. 1, August 2004"A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings"By Beth Locker and Melissa Dorris In Georgia there are nearly 14,000 children currently involved with the child welfare system,1 and each of these children has been involved in at least one hearing in Georgia's juvenile courts. For the children and families involved, these hearing are of momentous importance. Whether it is a probable cause hearing, a termination of parental rights hearing or any of the possible steps in between, these hearings change children's lives forever. Despite the critical nature of these hearings, not all of Georgia's children receive legal representation in deprivation cases, leaving children's interests vulnerable to an overburdened and frequently inattentive system.

To fulfill its responsibility to protect the state's children, Georgia must ensure that each child receives competent legal representation in deprivation proceedings. Before additional resources are invested in this effort, however, the specific barriers inhibiting attorneys representing children from doing the best possible job must be explored. This article analyzes the federal and state statutory and constitutional sources of the right to representation for children, and identifies inconsistencies in Georgia law that contribute to systemic confusion about a child's right to representation in Georgia's juvenile courts.

A CHILD'S RIGHT TO LEGAL REPRESENTATION Historically

The field of children's law is relatively new in comparison to the U.S. legal system. As the legal system in the United States developed, there was no notion of children's law. Parental authority was viewed as near absolute and there was no real governmental recognition of abuse, neglect or even molestation. The state had some involvement in caring for abandoned and orphaned children but even this was minimal, limited basically to providing funds to private agencies for the care of those in need. Throughout most of the 19th century, there were no laws designed to protect children. The first state child protection agency was not founded until the late 1870s2 and it was the 1935 passage of the Social Security Act that marked the first meaningful federal involvement in the issue.3 Even this initial state and federal involvement was severely limited, following a history of deference to parental rights and lack of recognition of any rights belonging to the child.4

Only in the 1960s with the publication of "The Battered-Child Syndrome" by C.H. Kempe in the Journal of the American Medical Association5 did widespread awareness come to the issue of child abuse. Over the next decade, interest across the nation increased as evidenced by the spread of mandatory reporting laws and an increase in federal funding.

On a parallel track, the recognition of the rights of youth was expanding in the area of delinquency. In 1967 the U.S. Supreme Court in In re Gault wrote: "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."6 Regarding the right to counsel, the court held, "[t]he child 'requires the guiding hand of counsel at every step in the proceedings against him.'"7 In Gault the ruling was explicitly limited to the delinquency context, but dicta in the case clearly affirmed an expanding judicial recognition of children's rights.8

Despite the court's perception of such a need in the juvenile delinquency context, the "guiding hand of counsel"9 has not been similarly extended to every child in deprivation proceedings. While the courts have found no constitutional basis for a child's right to counsel in this context, many state statutes specifically provide for such representation.

Federal Law - Child Abuse Prevention and Treatment Act (1974)

The advent of representation of children in deprivation matters largely began with passage of the Child Abuse Prevention and Treatment Act (CAPTA) in 1974.10 CAPTA followed extensive congressional findings on the prevalence and severity of child abuse in the United States11 and was passed with the intention of funding demonstration programs for the prevention, identification and treatment of child abuse and neglect.12 Such funding would be provided only to states meeting certain standards for addressing child abuse and neglect. One requirement was that the "state shall-provide that in every case involving an abused or neglected child which results in a judicial proceeding a guardian ad litem shall be appointed to represent the child in such proceedings."13 In 1974, this was the extent of the commentary on a child's right to counsel. There are no definitions of guardian ad litem or representation nor is there any language in the legislative history that helps illuminate the congressional intent.

Over the last three decades, CAPTA has been reauthorized and amended multiple times, most recently on June 25, 2003, by the Keeping Children and Families Safe Act.14 As of 2003, nearly all states, including Georgia, accept CAPTA funds and thus are bound by its mandates.15 Largely because of CAPTA, nearly all states have laws mandating the appointment of a guardian ad litem for all children involved in abuse/neglect court proceedings. In the absence of a definition of guardian ad litem to guide them, states have employed vastly different approaches to implement the requirement of representation for children.

In the 1996 reauthorization, Congress amended the CAPTA provision requiring appointment of a guardian ad litem; with that amendment, Congress seemed to step back and leave the definition of a guardian ad litem, and by extension the requirement of counsel for children entirely up to the states. The 1996 reauthorization requires states to have...