The Nature and Determinants of Child Representation Practice in Child Welfare Cases

• Author: Andrew Zinn,Britany Orlebeke
• Date: 01 April 2017
• Published date: 01 April 2017
• DOI: http://doi.org/10.1111/fcre.12277

THE NATURE AND DETERMINANTS OF CHILD REPRESENTATION

PRACTICE IN CHILD WELFARE CASES

Andrew Zinn and Britany Orlebeke

The representation of children in dependency cases is an emerging legal specialty. Although scholars have attemptedto articu-

late the duties that should characterize best practices, there has been little, if any, research concerning what child representa-

tives actually do in practice. Using a sample of 168 child representatives in Georgia and Washington State, this study

examines the relative significance of various case-related activities and how these vary as a function of case- and attorney-level

characteristics. Based on the findings, we conclude that attorney activities are influenced by a combination of case and attorney

characteristics, suggesting several distinct avenues for improving legal representation for children in dependency cases.

Key Points for the Family Court Community:

We explore the nature of child representatives’ efforts on behalf of their child clients.

We discuss howthese child representatives’efforts vary across child cases,child representatives, and courtjurisdictions.

We encourage consideration of the likely mechanisms underlying differences in child representatives’ efforts and the

potential practice and policy prescriptions of these differences.

Keywords: Attorneys; Child Representation; Child Welfare; Family Court; and QIC-ChildRep.

INTRODUCTION

Children appearing before juvenile dependency courts have a stake in a number of significant lib-

erty and related interests, including those concerning physical custody and freedom of association,

safety and well-being, and integrity and permanence of family relationships (Heimov, Donnelly, &

Ventrell, 2007; Pitchal, 2006; Smiles, 2003). These interests can often be at odds with those of other

parties to juvenile dependency cases, including parents, child welfare agencies, and the state (Pitchal,

2006; Taylor, 2009). Because of this potential conflict, and because these other parties are typically

afforded legal counsel, the quality of children’s legal representation is fundamental to the assurance

of children’s due process rights and may serve to materially affect children’s dependency court out-

comes. Indeed, recent scholarship suggests that the appointment of attorneys in dependency cases is

associated with higher rates of exit from foster care to adoption (Zinn & Peters, 2015).

As important as legal representation can be, the appointment of attorneys to children in dependen-

cy cases is a relatively recent phenomenon. Since the passage of the Child Abuse Prevention and

Treatment Act in 1974 first required the appointment of guardians ad litem (GALs) for children in

dependency cases, the number of states mandating appointment of children’s attorneys has grown

considerably (Child Welfare Information Gateway, 2014; First Star & Children’s Advocacy Institute,

2009). Concomitantly, the professional legal field of representing children in dependency cases has

increased in legitimacy and scope. Indeed, in 2001, the American Bar Association (ABA) established

child welfare law as a distinct legal specialty with its own certification (ABA Standing Committee

on Specialization Approval of NACC Definition, 2001), and scores of law schools now operate child

advocacy clinics (Ventrell, 2005).

In concert with the increasing legitimization of the discipline of child representation, legal schol-

ars and educators have attempted to articulate the duties that should differentiate child representation

from the representation of adult clients. These recommendations have been motivated by an

Correspondence: azinn@ku.edu; borlebeke@chapinhall.org

FAMILY COURT REVIEW, Vol. 55 No. 2, April 2017 273–291

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C2017 Association of Family and Conciliation Courts

understanding of the developmental needs and capacities of child clients and a belief in a child’s right

to independent, assertive legal representation (Duquette & Haralambie, 2010; Sherwood, 2009).

Although the specific list of recommended duties has varied somewhat from author to author, there

appears to be a general consensus around three core duties (Duquette & Haralambie, 2010; Sher-

wood, 2009): (a) active engagement of child clients, including regular face-to-face communication

(Duquette & Haralambie, 2010; Fines, 2008; Katner et al., 2001; Sherwood, 2009); (b) independent

investigation and assessment of children’s needs and wishes (Duquette & Harden, 1999; Katner,

McDarthy, Rollin, & Ventrell, 2001; Sherwood, 2009); and (c) proactive, goal-driven advocacy

(Duquette & Harden, 1999). Indeed, in one form or another, these duties are required of attorneys

representing children in dependency cases in a large majority of states (Child Welfare Information

Gateway, 2014).

Despite the apparent scholarly consensus about what child representatives should do, there has

been little, if any, research concerning what child representatives actually do in practice. Although

there have been several attempts to indirectly measure the activities of child representatives (Gal-

lagher, 2002; Judicial Council of California, 2008),

1

there has yet to be any published study examin-

ing these activities on a case-by-case basis. Nevertheless, a better understanding of what child

representatives do in practice, and how these activities vary across cases and attorneys, could help

inform a number of relevant practice and policy issues. For example, a detailed examination of child

representatives’ activities could help guide efforts to make child representation education, training,

and support more responsive to the exigencies faced by practicing attorneys. Further, an examination

of how child representation practice varies across cases and attorneys, respectively, could help identi-

fy specific targets for reform. For example, if child representation practice systematically varies

across different client groups (e.g., race/ethnicity, age, placement type), then this might reflect differ-

ences in legal needs or the influence of systemic barriers or bias.

2

Similarly, if child representation

practice varies significantly across attorneys, then this might reflect differences in attorneys’ knowl-

edge or skills, or difference in context-level (e.g., employment setting) resources or constraints. It is

important to note that, if practice is found to vary significantly across attorneys, th en this would sug-

gest that efforts to influence attorney behavior (e.g., education, support, regulation) could lead to sub-

stantive changes in child representation practice.

CURRENT STUDY

The goal of the current study was to inform our understanding of the nature of child representation

practice by examining the case-related activities of 168 attorneys representing children in dependen-

cy cases in Georgia and Washington State. Specifically, we sought to explicate the relative

significance of various types of case-related activities and examine how these vary as a function of

case- and attorney-level characteristics. Based on the findings of these comparisons, we conclude

that attorney activities are influenced by a combination of child and attorney characteristics, sugges-

ting several distinct avenues for improving legal representation for children in dependency cases.

METHODS

SAMPLE

The study sample was developed in two stages. During the first stage, a sample of attorneys repre-

senting children in dependency cases was identified and recruited. During the second stage, a random

sample of dependency cases was selected from the caseloads of these attorneys. In brief, attorneys

were recruited into the study sample for the purposes of evaluating the impact of the QIC-Child-

Rep

3,4

Best Practices model for child representation in child welfare cases. The QIC-ChildRep study

sought to recruit all practicing attorneys representing children in dependency cases throughout

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