Georgia Bar Journal
GSB Vol. 13, NO. 1, Pg. 22.
The Next Generation of Child Advocacy: Protecting the Best Interest of Children by Promoting a Child's Right to Counsel in Abuse and Neglect Proceedings
GSB JournalVol. 13, NO. 1August 2007The Next Generation of Child Advocacy: Protecting the Best Interest of Children by Promoting a Child's Right to Counsel in Abuse and Neglect ProceedingsHon. Steven C. Teske and Melissa Dorris CarterThe field of children's law is based on a relatively young body of law that has emerged over the past 130 years. As the field continues to mature, policies and practices are continually scrutinized to ensure that the hundreds of thousands of children brought before juvenile courts across the country are adequately protected and the mission of the juvenile court is properly executed. The facet of children's law that is currently receiving the greatest attention is the examination of the child's status as a party to abuse and neglect (deprivation) proceedings and rights derived from that status, particularly including the right to be represented by legal counsel.
The further development of the representation paradigm for children who are involved in deprivation proceedings has been constrained by inconsistencies in federal and state law requiring "representation" of children through the appointment of an attorney or lay guardian ad litem (GAL). Two competing approaches have emerged: the "best interest" GAL model and the traditional attorney-client model. Generally speaking, the role of a child's attorney is to represent the child as a client, providing legal services for a child and abiding by the same ethical and professional duties owed to an adult client. By comparison, a GAL, who may be an attorney or a lay advocate, is an officer of the court whose role is to assist the court in discerning and protecting the child's best interest.
The thesis of this article is that Georgia law is settled. Children are indeed parties to the deprivation proceedings concerning them and as such, are entitled to representation by legal counsel. Contemporary case law decisions, state statutes, and constitutional principles support this conclusion. Further, as parties, children are also entitled to participate meaningfully in court proceedings. The challenge posed to juvenile court stakeholders is to craft a practice solution that is stringent enough to uphold these rights for every child in every case and flexible enough to adjust for the differences of individual children.
In its August 2004 edition, the Georgia Bar Journal published an article titled "A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings," co-authored by Melissa Dorris Carter, one of the authors of the present article.(fn1) That piece analyzed the federal and state statutory and constitutional bases supporting a child's right to legal repre-sentation in civil abuse and neglect proceedings. Although Georgia's statutory scheme is ambiguous in this area, the conversation begun nearly three years ago has continued among a number of juvenile judges throughout the state, and the position advanced in the 2004 article has gained strength and momentum. Although progress has been made toward reaching a consensus on the issue since the Journal last looked at this aspect of the law, the practice across the state has not changed dramatically. Every day, juvenile court judges are making decisions about children and their families with no guarantee that the child's wishes will be conveyed in court. This article will discuss the recent decision of Kenny A. v. Perdue(fn2) and its effect on children's right to counsel in abuse and neglect proceedings, and will propose a strategy that accommodates the legal and best interest concerns of children while simultaneously minimizing costs to local governments.
The Effect of Kenny A. v. Perdue
At the time that the Journal published the last article, the state of Georgia and DeKalb and Fulton counties were vigorously defending a class action lawsuit filed by Children's Rights, a self-described national watchdog organization headquartered in New York that seeks child welfare system reform through litigation and policy initiatives.(fn3) Children's Rights filed suit in the U.S. District Court for the Northern District of Georgia on June 6, 2002, on behalf of nine named plaintiffs seeking injunctive and declaratory relief against the agencies and officials responsible for operating the state's foster care system, including the Georgia Department of Human Resources, the Division of Family and Children Services (DFCS), and Fulton and DeKalb counties.(fn4) The plaintiffs alleged that the foster care systems operating in Fulton and DeKalb counties had a number of serious problems, including children languishing in foster care, children experiencing multiple placement moves while in state custody, and inadequate health and educational services for children in foster care. Additionally, the plaintiffs asserted a claim against Fulton and DeKalb counties for the alleged failure to provide adequate representation for children in deprivation and termination of parental rights (TPR) cases.(fn5)
The plaintiffs' claim against the county defendants alleged that effective legal representation was structurally impossible to provide due to the excessively high case-loads maintained by the child advocate attorneys in Fulton and DeKalb counties.(fn6) Plaintiffs' counsel argued that the failure to provide effective and adequate legal representation to children before the court in cases alleging deprivation violated the plaintiffs' due process rights under the Georgia Constitution and certain statutory provisions relating to TPR proceedings.(fn7) The county defendants filed a motion for summary judgment on the issue, arguing that because the Georgia Code specifically requires provision of legal counsel only in TPR proceedings, children in foster care do not have a right to effective legal representation in general deprivation proceedings.(fn8) Ruling on the motion, Judge Marvin Shoob concluded that "foster children have both a statutory and a constitutional right to counsel in all deprivation proceedings, including but not limited to TPR proceedings."(fn9) The court found authority in O.C.G.A. 15-11-6(b), which states that "a party is entitled to representation by legal counsel at all stages of any proceedings alleging, ., deprivation."(fn10)
The authors of the August 2004 Journal article did not resolve the issue of the child's status as a party, instead finding a right to counsel through the second clause of O.C.G.A. 15-11-6(b) based on the inherent conflict of interest...