Representation of Parents and Children in Abuse and Neglect Cases: The Importance of Early Appointment

• Author: Judge Leonard Edwards
• DOI: http://doi.org/10.1111/j.1755-6988.2012.01075.x
• Published date: 01 March 2012
• Date: 01 March 2012

Representation of Parents and Children in

Abuse and Neglect Cases: The Importance of

Early Appointment

By Judge Leonard Edwards (ret.)

INTRODUCTION

The serious consequences of abuse and neglect proceedings including placement in

foster care and termination of parental rights mandate that parents and children receive

competent and well-trained legal representation. Unrepresented parents and children

cannot match the expertise and sophistication of government lawyers and trained child

welfare workers in complex child abuse and neglect proceedings. To ensure a fair oppor-

tunity to present their positions, answer their questions, and guide them through a

challenging legal, administrative, and emotional process, courts must provide trained

and well-prepared legal counsel to parents and children.1Counsel protects important

constitutional and legal rights, helps prevent the unnecessary entry of children into foster

care, and assists in strengthening family supports.

Many state legislatures provide attorneys for parents in abuse and neglect cases,2

while some states provide for only discretionary appointment. In others, the appointment

occurs late in the case at the adjudicatory or termination of parental rights hearing.3

Federal law mandates that the child have representation from a guardian ad litem (GAL)

1 Recent studies have demonstrated that the quality of parent representation improves outcomes for

families. Those outcomes include more timely hearings, more family reunifications, and few terminations of

parental rights. See C. Gemma, Quality Representation of Parents Improves Outcomes for Families,6Child Court

Works, April 2003, ABA Center on Children and the Law, and B. Bridge & J. Moore, Implementing Equal

Justice for Parents in Washington:A Dual Approach,53Juvenile &Family Court Journal, Fall 2002, 31-41.

2 These cases have different names in different states including Juvenile Dependency, Child Protec-

tion, and CHINS—Children In Need of Protection. This article will refer to these proceedings as abuse and

neglect cases throughout.

3See the discussion infra at Section V—Practice Across the Country.

Judge Leonard Edwards is a retired Superior Court judge from Santa Clara County, California. He

serves as Judge-in-Residence for the California Administrative Office of the Courts. Correspondence:

Leonard.Edwards@jud.ca.gov

Author’s Note: Many thanks to David Meyers, Sidney Hollar, and Christopher Wu for their

assistance in the writing of this article and to Steven Benker-Ritchey for his research assistance.

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Juvenile and Family Court Journal 63, no. 2 (Spring) 21

© 2012 National Council of Juvenile and Family Court Judges

in abuse and neglect proceedings,4and some states supplemented the federal law with

statutes mandating legal representation for children.5Policy makers and experts have

written widely on the benefits of representation and the proper role of the attorney and

GAL in abuse and neglect proceedings,6but one issue receives sparse attention: the

timing of the appointment.7Unless the court appoints the attorney/GAL well before

the initial hearing and the client receives representation from the beginning of the case,

the representation will likely be ineffective.

This article discusses the importance of appointing legal representatives for parents

and children in child protection cases prior to the commencement of any court hearings.

First, it briefly discusses representation in child abuse and neglect cases. Second, it

addresses the critical nature of the initial or shelter care hearing. Third, it discusses the

importance of legal representation at the initial hearing. Fourth, it reviews the

appointment-of-attorney practice in most jurisdictions around the country, a practice in

which the court usually appoints representatives too late to be effective at the initial

hearing. Fifth, it discusses a number of reasons why attorneys do not litigate issues and

particularly the reasonable efforts issue at the initial hearing. Sixth, it enumerates the

perceived barriers to early appointment, and discusses why these barriers should not

prevent early appointment of legal representatives. The article concludes with a recom-

mendation that presiding judges and court administrators appoint attorneys and GALs

simultaneously with the filing of an abuse and neglect petition and before any court

hearings occur. Early appointment enables appointed attorneys to prepare properly for

the initial hearing, and assures the competent representation of parents and children at all

hearings.

4 Child Abuse Prevention and Treatment Act of 1974 (CAPTA), 42 U.S.C. § 5103(b)(2)(G). In some

states the appellate courts have mandated representation for parents in abuse and neglect cases. See Danforth

v. State Department of Health and Welfare, 303 A.2d 794, (Me., 1973). Black’s Law Dictionary defines

guardian ad litem as “a special guardian appointed by the court in which a particular litigation is pending to

represent an infant, ward or unborn person in that particular litigation.” (6th ed. 1990), at 706.

5 For example, see California Welfare and Institutions Code § 317(a), West, 2011. For a compre-

hensive examination of state legislative acts regarding the appointment of attorneys to represent children in

juvenile dependency cases, refer to A Child’s Right to Counsel:ANational Report Card on Legal

Representation for Abused and Neglected Children, First Star and Children’s Advocacy Institute

(2nd ed., 2009).

6 There is a great deal of literature addressing the role of the attorney/GAL in abuse and neglect

cases, but these publications neglect addressing the early timing of the appointment. For example, see

Representation of Children in Abuse and Neglect and Custody Proceedings Act, National

Conference of Commissioners on Uniform State Laws, 2005, at 10-12; M. Ventrell, Rights and Duties: An

Overview of the Attorney-Child Client Relationship,26Loyola Law Journal, 259, at 268-9; D. Duquette,

Advocating for the Child in Protection Proceedings:AHandbook for Lawyers and Court

Appointed Special Advocates (1990); M. Laver, Promoting Quality Parent Representation through Standards

of Practice, 26 ABA Child Law Practice, March 2007, 1, 6-8; and NACC, Legal Representation of

Children (2001), at 3-18.

7 A few commentators have mentioned the importance of the timing of appointment. See L.

Edwards, Improving Juvenile Dependency Courts: Twenty-Three Steps,48Juvenile &Family Court Journal,

1997, 1-23, at 7; California Judicial Council,California Court Improvement Project Report

(April 1997), at 76; American Bar Association, ABA Standards of Practice For Lawyers Who

Represent Children in Abuse and Neglect Cases (February 1996), at 20-21. None of these discusses

the details of early appointment.

22 | JUVENILE AND FAMILY COURT JOURNAL / Spring 2012