Refocusing the lens of child advocacy reform on the child.

• Author: Kothekar, Aditi D.

INTRODUCTION

When placed within family court jurisdiction, children need lawyers. Dependency (1) cases in the family court--in which parents are accused of abusing or neglecting their children--are fraught with constitutional tensions regarding the state's and parents' rights to regulate the well-being of children, (2) along with systemic pressures such as federal statutes and state funding (3) that substantially affect family relationships. Children sit at the heart of these proceedings; indeed they are the very reason for them. Facing abrupt state intervention into their family life and the oft-accompanying physical removal (4) from their homes, these children travel a tumultuous and uncertain road from the time the alleged abuse or neglect occurs until the allegations are resolved. Threatened also with termination of parental rights, (5) they--for better or worse--face the potential permanent loss of their natural family life. The recognition that children are not mere property to be tossed between their parents and the state has prompted states to require representation of children as independent parties. Children possess unique rights and interests--to be free from harm and to access relevant social services, among others--that need separate advocacy, particularly in light of the frequent conflicts between the respective interests of parents and children. (6) Though a relatively common practice, child representation in dependency proceedings remains both inconsistent and disputed across the country.

Children's lawyers in dependency proceedings practice in a highly specialized and unsettled area of the law. Legislators and experts have not agreed on how best to represent children, despite years of discourse regarding what role children's lawyers (7) should play. The two most prominent schools of thought--those who support lawyers representing children's best interests (best interests lawyers), and those who support lawyers treating children as adult clients and advocating the clients' wishes (client-directed lawyers)--highlight the great philosophical divergence regarding child advocacy. (8) The focus of each camp is remarkably different, despite the shared goal of achieving effective child representation. Best interests models are configured around the lawyer's decision making, whereas the alternative client-directed models focus on how to advance the child's decision making.

Years of efforts to clarify the role of child advocates reveal an inherently problematic focus: they center on lawyers, not children. Recent reform efforts have manifested in several model standards, (9) which are in significant conflict with one another. However, the common thread among these standards as well as among state laws is that they are generally designed to clarify the lawyers' role in an attempt to better represent children. By primarily focusing on how to clear lawyers' confusion regarding how to represent their clients, rather than focusing on how to increase, or at least optimize, children's participation in the proceeding, the standards have diminished children's voices. Such diminishment not only devalues the child as a party, despite the child's access to separate representation, but it also deprives the court of potentially critical information from the child. This Note refocuses the lens of current reform efforts on the significance of children's voices, stemming from both theory and practical necessity. It urges that reform efforts keep children, rather than lawyers, first in mind. Regardless of whether such a refocusing results in a client-directed or a best interests model as a resolution, it provides the appropriate analytical framework for reform efforts. However, through these considerations, along with a critique of the informal nature of actual dependency proceedings, this Note proposes that a client-directed attorney emerges as the option best suited to refocus reform efforts to consider children first. (10)

Part I discusses child representation reform efforts over the last twelve years. It recounts the entrenched best interests status quo reflected across state statutes, the growing movement toward increasing client direction as manifested via prominent national conferences, and the mixed efforts of various model standards to shape lawyers' roles. Part II discusses the discord between client-directed and best interests advocacy, as well as between the specific framework of existing standards and the growing movement toward client direction. It explains that the mismatch between this trend and the standards exists because the trend is child-focused whereas the standards are lawyer-focused. Part II next examines how current lawyer-focused standards curtail children's participation and direction, why this curtailment is harmful, and what assumptions and biases underlie these standards. Part III identifies the informal nature of family court as a principal source of the general laxity in maintaining client direction in child advocacy, by way of its heavy deference to professional decision making in dependency cases. Specifically, Part III explains how the protective sentiment that pervades family court has helped sustain lawyer-focused models and the predominance of best interests advocacy. Part IV proposes that, in light of these circumstances and the need to refocus on children, children's lawyers should assume roles as client-directed attorneys. Part IV also provides justifications as to how such a proposal would maximize client-directed advocacy without sacrificing the rehabilitative nature of family court.

1. STANDARDS AND CONFERENCES: RECENT EFFORTS TO CLARIFY THE ROLE OF THE ATTORNEY

   The last several decades have witnessed a surge in discourse regarding the contentious issue of child representation. As no federal law articulates what the precise role of a child's attorney should be, each state has adopted its own laws to guide its lawyers. (11) Despite the overarching status quo in maintaining best interests advocacy as a preferred option, this state-by-state development has generated considerable inconsistency among the state statutes, (12) and has thereby triggered a desire for reform.

   1. National Conferences Establish a Growing Consensus

      Two national conferences, one at Fordham University (13) (Fordham or Fordham Conference) and the other at the University of Nevada, Las Vegas (14) (UNLV or UNLV Conference), culminated much of the scholarly debate surrounding child representation. Together, these conferences book-ended a decade of movement toward a client-directed model of child advocacy. (15) Although state statutes collectively indicate a national preference for best interests advocacy, Fordham and UNLV represent a gradual movement away from this preference. The conferences have produced not only academic discourse, but also practice guides addressing how to effect the desired changes. (16)

      The consensus at Fordham is captured in the first line of its recommendations: "A lawyer appointed or retained to serve a child in a legal proceeding should serve as the child's lawyer." (17) With regard to the existing variety of legal and non-legal child advocacy, Fordham first states that "[l]aws currently authorizing the appointment of a lawyer to serve in a legal proceeding as a child's guardian ad litem should be amended to authorize instead the appointment of a lawyer to represent the child in the proceeding." (18) Addressing the diversity within the role of children's lawyers, Fordham's second recommendation states that "[l]aws that require lawyers serving on behalf of children to assume responsibilities inconsistent with those of a lawyer for the child as the client should be eliminated." (19) With this objective as a unifying theme, Fordham then provides guidance for lawyers representing children of varying capacities. (20) Fordham's guidance regarding interviewing, counseling, and confidentiality speaks collectively to children of all capacities. (21)

      Ten years later, "[a]ffirming and building upon" (22) the Fordham recommendations, the UNLV Conference produced a practice guide "to assist attorneys to maximize the child's participation in proceedings involving the child's interests through deeply grounded representation." (23) The UNLV recommendations specifically state that "[c]hildren's attorneys should take their direction from the client and should not substitute for the child's wishes the attorney's own judgment of what is best for children or for that child." (24) These recommendations urge lawyers to gain a holistic sense of their clients' lives, families, and communities, (25) as well as multidisciplinary training and assistance in cases. (26) They further provide guidance on how to maximize children's participation in the representation. (27) Specifically, the recommendations outline limited circumstances (28) in which lawyers should substitute judgment for their clients, namely when the child "lacks the capacity to make adequately considered decisions[,]" when "the child's expressed preferences would be seriously injurious[,]" or when the attorney is practicing "in a jurisdiction that requires the attorney to exercise substituted judgment or act as a guardian ad litem." (29) In reaffirming Fordham's recommendations for legal reform, the UNLV recommendations propose that the "[m]eans of achieving this goal include curbing judicial or legislative discretion to dictate ... the child's attorney's role and interpreting or modifying the [federal] Child Abuse Prevention and Treatment Act ("CAPTA") mandate for appointment of best interests representatives for children to include the appointment of a client-directed attorney." (30)

      Though Fordham and UNLV represent only one school of thought in the child advocacy debate, (31) they are products of experts across the country, (32) and therefore they symbolize a significant consensus favoring client-directed child representation in...