Hush, Little Baby, Don't Say a Word: How Seeking the "best Interests of the Child" Fostered a Lack of Accountability in Georgia's Juvenile Courts - Sarah Gerwig-moore and Leigh S. Schrope

• Publication year: 2007

Hush, Little Baby, Don't Say a Word: How Seeking the "Best Interests of the Child" Fostered a Lack of Accountability in Georgia's Juvenile Courtsby Sarah Gerwig-Moore^* and Leigh S. Schrope^**

Introduction

Since 1899, when America's first juvenile court opened its doors to the lost children of Chicago,¹ two primary assumptions have governed the administration of the juvenile justice system: that it should operate in parens patriae² for the "best interests of the child"³ and that it should be given flexibility and leeway in doing so.⁴ Georgia's juvenile courts, established in 1908,⁵ function squarely within that framework: "[a] petition alleging delinquency, deprivation, or unruliness of a child shall not be filed unless the court or a person authorized by the court has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child."⁶

Initially, there was a great deal of excitement about juvenile courts, but by the mid-1950s, children's rights advocates became concerned about problems brought by the flexibility built into juvenile proceedings. When Kent v. United States,⁷ Winship,⁸ and In re Gaulf were decided successively by the United States Supreme Court, the juvenile court system became more structured and extended more "adult" due process rights to children. This, like the origination of juvenile courts, brought hope for improved protection of children.¹⁰

However, the promises of these cases remain unfulfilled, and studies indicate serious problems with the practices and administration of the juvenile courts. The costs of fundamental assumptions about the methods and goals of juvenile court are too great: children's¹¹ rights are not nearly as carefully protected as their adult counterparts', but the juvenile penalties are growing ever harsher. While it may be true that the problems that plague the juvenile courts are attributable to a number of factors (the difficulty of funding public services for families and children, for example, or inadequate parental or community support),¹² most of the problems emerging from Georgia's juvenile courts are linked inextricably to the lack of meaningful accountability within—or without—that court system.

For example, disturbing numbers of children are allowed to waive the right to counsel in delinquency proceedings.¹³ Studies performed by the Georgia office of the Child Advocate showed that many attorney guardians ad litem are appointed just prior to court appearances and often do not meet the child or parents before a court appearance.¹⁴ Such trends in inadequate representation often lead to harsh sentences due to the broad discretion afforded juvenile judges and prosecutors in many jurisdictions.¹⁵

Even with competent counsel, however, the decisions of the juvenile courts reflect a lack of systemic accountability. One Georgia juvenile defender reported that a judge determined his client to be delinquent because the defense "had not proven its case."¹⁶ In In the Interest of M. S.,¹⁷ a juvenile court in Baker County, Georgia sentenced a child as though he had committed a "designated felony," even though such sentencing (in that instance) is not allowed by statute.¹⁸ The child's counsel argued that the charge was not a designated felony under Official Code of Georgia ("O.C.G.A.") section 15-11-63,¹⁹ and therefore the court was not authorized to sentence him pursuant to that statute; nevertheless, the court replied, "'it's the Court's opinion that [it] can sentence [M.S.] under the Designated Felony Act and [the Court is] going to do so.'"²⁰ The court of appeals reversed the disposition,²¹ but as will be discussed in Part IV, this was only one of a very few child delinquency cases appealed in 2005.

Some of the inherent flexibility in juvenile court may itself be violative of children's rights. Under the terms of the designated felony statute, for example, the Department of Juvenile Justice "shall retain the power to continue the confinement of the child in a youth development center or other program beyond the periods specified by the court within the term of the order."²² Adult felons, on the other hand, may not be confined for a period greater than the sentence pronounced in court.²³ The juvenile system also suffers from careless record keeping that allows scores of children to languish in detention centers, having been forgotten by a system in which they have "fallen through the cracks."²⁴ These are only a few examples of how the lack of systematic oversight leads to abuses of discretion, but there are many more.

Rather than focusing on one problem in particular, this Article examines how Georgia's juvenile justice system suffers because of a historic and continuing lack of accountability. In adult criminal cases, counsel, juries, media access, and appellate oversight each provide important and interconnected avenues for oversight. In Georgia, however, children frequently admit to delinquency petitions without counsel (often after incomplete explanations of their constitutional rights), or are represented by counsel operating under conflicts of interest or limited by inexperience.²⁵ Children have no right to a jury trial.²⁶ Further, Georgia juvenile courts operate under confidentiality rules that limit access to juvenile records and prohibit releasing identifying information about children with cases in juvenile court.²⁷ This applies to matters involving delinquency (cases involving a child's bad behavior) or deprivation (cases involving abandonment, abuse, or neglect)²⁸ and prevents otherwise interested parties—including the media or advocacy groups—from gaining access to information that might shed light on problems plaguing the courts.²⁹ Because children's delinquency orders are rarely appealed,³⁰ the body of juvenile common law is scant, and lower courts rarely benefit from meaningful appellate review or guidance.

Intended or not, juvenile courts operate in little unrestricted fiefdoms. Some, certainly, are overzealous in protecting their charges' constitutional rights. Others, however, burdened by heavy caseloads or driven by cynicism or concern, take liberties with children's rights that would not withstand more careful scrutiny. In a perfect world, of course, parents provide important oversight, but children's uniquely perilous situation makes systematic reform essential. Without the meaningful answerabili-ty through conflict-free counsel (or any counsel at all), jury consideration, the media or interested third parties, or meaningful appellate review, Georgia's juvenile courts have strayed from seeking and protecting "the best interests of the child." This Article seeks to explore these issues of accountability and will offer possible solutions to problems that emerge when juvenile courts operate with nearly limitless power in the lives of the children who come before them.

I. The Adjudicatory and Dispositional Phases

A. Accountability through the Assistance of Counsel

According to most studies examining the system, counsel-related problems are the central issue in Georgia's juvenile justice reform movement.³¹ Though any child before a juvenile court should have the right to counsel's zealous and competent representation (provided at no cost if she is indigent), that reality is far from realized. First, the law is rather unclear about when counsel must be appointed. Further, children's rights are not always adequately explained by counsel or judges or explained in language that children are able to comprehend.³² Some children who would otherwise request counsel may be prevented from doing so by a parent or guardian.³³ In many counties, both delinquency and deprivation cases are hampered by the fact that juvenile court positions are often filled by the least experienced attorneys in the circuit.³⁴

The statutory promise of counsel is also complicated by the legislature's inadequate funding for counsel for children. Counties bear financial responsibility for funding counsel in juvenile deprivation matters and for juvenile defenders beyond those funded by the state. At least some juvenile defenders are statutorily required, but their positions are not fully funded.³⁵ As reported in the Fulton County Daily Report, though a funding bill was at some point a seeming possibility, Georgia legislators "removed language from a public defender bill. . . that would have urged counties to hire an assistant public defender for each full-time juvenile court judge."³⁶

If a child has no counsel, or ineffective, conflicted, or unprepared counsel, then not only does the child lack an advocate in legal proceedings, but the child also lacks a voice in the process.

1. A Child's Right to Counsel in Delinquency Petitions

Just as adults have the right to counsel in any proceeding where there is a risk of confinement³⁷ or in any direct appeal proceeding challenging an adverse final order,³⁸ children also have the right to legal representation.³⁹ However, in Georgia, that right has not been fully recognized and is certainly far from realized.

The Georgia Juvenile Code explains the right to counsel rather cryptically: "Except as otherwise provided . . a [child] is entitled to representation by legal counsel at all stages ofany proceedings alleging delinquency, unruliness, incorrigibility, or deprivation" and, ifa party is indigent, the court will provide appointed counsel.⁴⁰ The Code provides, furthermore, that "[i]f a party appears without counsel," the court must inquire into the party's understanding of his or her right to counsel and to appointed counsel, depending on the party's financial circumstances.⁴¹ However, the final two sentences of the section allow for representation by a parent: "Counsel must be provided for a child not represented by the child's parent, guardian, or custodian. If the interests of two or more parties conflict, separate counsel shall be provided for each of them."⁴² The statute, however...