The Unmet Legal Needs of
Children
It is not clear what the court meant by "kangaroo court" when it stated in In
re Gault that: "the condition of being a boy does not justify a kangaroo court."(16)
But the above examples might qualify. Gregory got heard at the trial level but
was told he had no right to be heard by the appellate court. Samantha got relief
at the appellate level. But for the uniqueness of her pro se complaint and the
national media, she may have never prevailed. These are just some of the many,
many stories of extreme injustice that can be told by the few lawyers in the
trial trenches fighting for children. There are few such lawyers because most
traditional Legal Services programs represent parents, not children, if their
resources allow family court representation at all. Other non-profit legal
groups have focused on class action litigation targeting systemic changes in the
child protective systems or Medicaid health care system. Many purported child
advocacy organizations actually focus on parents’ issues or help state agencies.
Most children don't have the money or access to money to retain private
attorneys. The economics of it all means that few lawyers are raising and
litigating the basic right of access to court for children. The Supreme Court
has said: "the right of access to court is the right conservative of all other
rights."(17) Yet children are routinely denied this
right. Worse, there is no organized, systemic campaign being waged in and out of
court to expose and correct this gross injustice.
The problem has long been recognized however. In 1979, the ABA adopted
stringent standards for lawyers representing children.(18)
They state: "Justice requires that all parties (including children as well as
parents and other adults) subject to juvenile and family court proceedings are
represented. Children and their parents (or guardians) should have
independent counsel at all stages of legal proceedings concerning charges of
delinquency, status offenses, and cases involving child abuse, neglect, custody
and adoption, except in temporary emergencies where immediate participation of
counsel cannot be arranged." (Emphasis added.) Despite the admonition in 1979
that "justice requires" representation for children when their essential
interests are at stake, the ABA Presidential Working Group on the Unmet Legal
Needs of Children and Their Families had to report in 1993: "Our society is
failing to protect its children and fails them even more once they are in
crisis.... Children too frequently find themselves before courts without benefit
of counsel, despite their constitutional and statutory rights to counsel in many
kinds of cases."(19) Through business as usual, we have
sat on our hands while the "persistent institutional immorality" continues. Our
response to the plea of a National Emergency has petered out into more
conferences, more meetings, more studies, and more articles but no demand for
enforceable rights for children.
Essential But Narrowly Defined Rights for Children
The call for rights for children conjures up many fears and misconceptions.
The same was true with the call for rights for African Americans and women.
Remember how the Equal Rights Amendment for Women was to have us all sitting
together simultaneously on toilet stools. Anyone parenting a teenager is going
to have initial doubts about what appears to be open-ended calls for children’s
rights. Because of the general reluctance among us to take a stand for
affirmative rights for children and even dialogue about the issue, the fears not
only remain inadequately addressed, but we often propagate the misconceptions.
It is disheartening to read even scholarly writings about children’s rights that
fail to distinguish between the basic rights of access to court and be heard
when fundamental interests are at stake and the unclaimed, and inappropriate,
right of a child to decide the issue.
Other areas that generates fear are rights of religion, thought, conscience,
and freedom of expression. These areas must include deference to parental
direction and guidance appropriate for the child’s evolving capacities. Sorting
out enforceable rights of children from areas appropriate to be left to broad
parental discretion as part of parental rights is essential to build the broad
based support needed to achieve legal personhood status for children. There is a
huge difference between the right raised in the cases described above of a child
to be heard in court and any claimed right of a child to association (with, say,
substance abusing friends) or of religion (to decline to attend the parents’
church, synagogue, or temple). As to the latter "rights" to association,
reasonable minds differ over the degrees, at what age appropriate, and even if
such rights exists for a minor. However, the vast majority of reasonable minds
are likely to understand and be supportive of the right to be heard in the cases
summarized above. A small number of children’s advocates have sorted out these
undeniable, inalienable rights of court access and to be heard and have been
struggling for public and judicial recognition of them. However, we must broaden
and deepen the discussion with the public and increase lawyer involvement in
cases seeking to establish these elementary due process rights.
University of Pennsylvania Law Professor Barbara Bennett Woodhouse has
written:
"The current discourse, in which children’s mere ‘interests’ are
easily overwhelmed by parents’ powerful ‘rights,’ entails ... problematic
choices about allocating power over children and about when action or
inaction constitutes state ‘intervention or ‘oppression.’ Perhaps children, as
the least powerful members of both the family and the political community, are
also the least dangerous of rights-bearers and the most in need of an affirmative
rights rhetoric in order to be heard. By defining children’s rights as
flowing from their needs, we can affirm rather than undermine an ethic of care
for others. By listening to children’s voices and experiences as evidence of
their needs and by trying to come to terms with the children’s reality, we
can confront our own adult ambivalence and conflicts of interest regarding
children’s rights."(20)
Professor Woodhouse has captured the core ingredients of the First Stage of
Rights for Children: children are entitled to due process and protective rights
because of their human dignity and our ethic of care. Let the debate
and progress continue with all deliberate speed concerning at what age, if any,
a minor is entitled to decide clothes, bed-time, TV choices, friends, curfew,
religious preference, etc. But let us not be delayed one more second in our
consensus about, and vigorous efforts to establish, the most basic of
legal rights: the right of access to court and to be heard through competent,
loyal counsel. The corollary to the Supreme Court’s statement that the right
of access to court is the right conservative of all other rights is that without
the right of access to court one effectively has no other rights. These
simple First Stage Rights to due process and protective rights implicate issues
of standing, capacity, weakened parental rights to custody and child-rearing
techniques, expressed interest representation as opposed to best interest
representation and the fears and misconceptions associated with these issues. We
should turn to those issues now.
Anchoring Principles Regarding Custody
We can agree that children need families, and that the birth parents are most
likely to provide appropriate care and are entitled to raise their children.
Families should not be interfered with just because someone else might "do a
better job". In other words, "best interest" of the child does not automatically
take precedent over parental rights and is not the routine criteria in deciding
custody disputes between biological parents and third parties. In a custody
dispute between the two biological parents, "best interest" is always the
criteria used.
However, we believe that respect for the human dignity of the child requires
limiting the rights of birth parents by considering the child’s "best interest"
as paramount in rare, extraordinary circumstances. There are only two such
circumstances:
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Where birth parents are abusive, neglectful or have abandoned the child,
parental rights are balanced by notions of the best interest of the child.
Every state has laws that recognize this principle and these laws are not
vulnerable to constitutional challenge by parents. How the law and facts are
interpreted by any specific court may be unfair to the child, but this
principle is undisputed.
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Where a child has little or no relationship with the biological parents
because the child has been in the long term custody of third parties and the
removal would impose significant trauma to the child, parental rights should
be balanced by notions of the best interest of the child. Several states
recognize this principle through statute or case law.(21)
In other words, if Uncle Joe, who is bright, kind, and wealthy, wants to
litigate to obtain custody of his niece, his existing relationship with her
determines whether "best interest of the child" is the criteria to be used by
the court. If he has the normal uncle/niece relationship, i.e., he has not had
custody such as described in #2 above, then the fact that he can afford better
clothes, a bigger, nicer house, and a top notch college education for her is not
even relevant. In fact, Uncle Joe probably doesn’t even have standing to
initiate a court proceeding in which he can ask for custody unless one or both
of he above extraordinary circumstances exist. If abandonment, abuse, or neglect
are alleged, then "best interest" is the criteria. But Uncle Joe cannot simply
allege that his parenting skills are better and have " best interest" be the
criteria. The Elian Gonzales case is an example of viewing these issues through
the eyes of adults rather than from the perspective of the child. Elian’s is a
painful example of adults playing politics with a child’s life.
Therefore, nothing in the First Stage of children’s rights should cause anyone
to fear that the more wealthy folks will be able to "take" children from the
less wealthy. Nor do the First Stage rights violate the constitutional rights of
parents. The routine divorce case where one parent is denied custody illustrates
that there is no absolute constitutional right to have custody of your child.
Likewise, the nationwide acceptance of exception #1 above further illustrates
that parents do not have an absolute constitutional right to custody of their
children. In fact, probably no right is "absolute." The courts routinely
balance competing rights. The First Stage rights for children simply means
that children experiencing either of the two situations described above (abuse,
neglect, abandonment, or long term custody with a 3rd party resulting
in a bond) are entitled to be recognized as human beings. As "persons", children
are entitled to have their rights balanced against the asserted rights of
biological parents to custody. The criteria for the courts to decide this
balancing of interests is "best interest of the child." To effectuate this
recognition of human dignity, children must have the right of court access and
to be heard through counsel.
In other words, there is a presumption that biological parents can and should
have custody of their children. However, this is a refutable presumption,
meaning it can be challenged. Otherwise, the child would be treated as property
owned by the parent(s).
It is really not a new or radical concept. However, it has generated much fear
and consternation. In fact, it seems that lawyers and judges have a harder time
recognizing children as rights-bearing "persons" than the general public. Three
reasons for these fears and misconceptions are discussed below.
Three Fears and Misconceptions About Children’s Rights of Access to Court
and to Be Heard
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1.
Confusing the Right To
Be Heard and Access to Court with the Unilateral Right of the Child To
Decide the Issue:
The First Stage of rights is premised on the ethic of care for the child and
asserts the right of the child to have her/his basic interests/needs
presented to the court and recognized as relevant. This seems too
fundamental to be in question. But in the nationally profiled cases
(involving allegedly defective adoptions proceedings and the forced removal
of the child after bonding with the adoptive parents) of Baby Jessica and
Baby Richard, their "best interest" was deemed by three state Supreme Courts
not to be relevant.(22) Expert testimony as to
irreparable harm likely to occur from forced removal was deemed
inadmissible. The child should have the right of access to court since
he/she is the real party in interest. In other words, the child is the
person who gains or loses the most - their childhood, their attachment to a
caretaker, and possibly their life, in a TPR proceeding - depending upon the
wisdom of the custody decision. Yet constantly children are ruled not to
have "standing" to bring a legal action seeking court protection from abuse
or seeking removal from the limbo of foster care into a permanent loving
home. Gregory K was told by the Florida Court of Appeals that he had no
"standing" to seek court protection even though all his allegations were
found to be true. A child should be able to knock at the courthouse door
seeking protection and have that knock answered.
The First Stage does not contend that the child has the right to
decide the issues. The judge, hopefully consistent with the rules of
procedure and evidence, makes the decision after hearing from all the
parties. Yet the refrain that we advocate "the child’s right to divorce
her/his parents" implies the child need simply check the "divorce" box on
some legal form and leave home as a matter of "right." It is remarkable how
frequently lawyers and judges initially fail to make this distinction
between right to decide and right to be heard.
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2. Confusing the Narrowly Defined Right of Access to Court, Status as a
Party, and the Right to Representation with the Notion that Children Have
the Right to Open-Ended Litigation Over Matters Rightfully Considered Within
Parental Judgment.
Children’s rights are not unbounded. In matters of abuse, neglect,
abandonment, and custody children should have the opportunity to be heard
through counsel regarding their specific interests, needs, and preferences.
(Remember from above, not the right to decide, but the right to be heard.)
This has been the position of the American Bar Association since 1979 - so
the First Stage of Rights is not breaking new ground or being radical. It is
just trying to make the theory also the practice.
The rights listed above are narrowly tailored to give the child protection.
These are protective rights. They do not in any way encroach upon "parental
rights" to decide bed time, chores, punishment, religion, whether to
purchase the latest computer game or the latest $170 pair of Nike sneakers.
This is consistent with the Anchoring Principles above. Even if a child
initiates an action such as Gregory K did, it is still only to allege a
denial of basic needs, such as a timely, safe, loving, permanent home.
In the unlikely circumstance that a lawyer was looney enough to file a suit
over the failure to provide Nike shoes or the existence of an "unfair" bed
time, the judge would have the power to immediately dismiss. The judge could
even sanction the lawyer for bringing a frivolous suit
if
appropriate. Giving children the right to be heard regarding the four
specific areas of protective rights/basic needs ( abuse, abandonment,
neglect, and custody) is not going to open a flood gate of lawsuits
challenging the basic rights of parents to raise their children as they
choose.
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3. Confusing the Common Law Concept that Children Are Incompetent and Lack
Capacity with the Very Different Issue of Their Right to Due Process
Essential to Insuring Fairness in Any Court Fact-Finding Process and to
Protect Their Life and Liberty.
The ancient legal concept of minors as infants and incompetents, even if 15,
16, or 17 years old, is intended as a shield to protect children from their
immaturity and vulnerability. Children are not able to unilaterally enter
into a contract with a door-to-door salesman for $2000 worth of
encyclopedias. The contract would be deemed by the court to be void because
the child did not have the capacity to enter into it.
This doctrine is sound as long as it is being used as a shield to protect
children. It is obviously illogical to allow the doctrine to become a sword
against the child. Yet that is exactly what happened when the Florida court
told Gregory K that it could not answer his pleading knock at their
courthouse door seeking help because he was only a child and had no capacity
to knock.
Probably every state has already modified this old legal concept when
appropriate to protect children. For example, every state recognizes that a
minor has the capacity to be named as a respondent in a Petition alleging
delinquency; to have the capacity to have legal counsel in such proceedings
and capacity to waive basic rights such as the Fifth Amendment right to
remain silent and waive the right to trial. Most states recognize a child’s
capacity to contract for the necessities of life, such as food, clothing,
and shelter. Others recognize a child’s right to contract for an education.
This means the child is held to the terms of the contract and must pay the
bill just as an adult would. Given these existing adjustments of the common
law capacity notion, it is certainly reasonable to modify the old concept
and recognize the child as having the capacity to be a party in court and
have an attorney in the four narrowly tailored areas described above.
Children are entitled to this due process protection to insure that judicial
findings of fact and law are fair and just. It is absurd to think that the
person most affected by the court decision, the child, is being protected by
a concept that holds that she/he cannot be present and heard in the
proceeding.
The point is not to abolish the existing concepts or principles of law that
shield and protect children. But certainly those concepts cannot be allowed
to hurt children more than they help. Telling children that they are
incompetent and must go find an adult to knock on the courthouse door for
them is simply putting another obstacle in the way of justice; especially,
when the adult most likely to go to court in their behalf is frequently told
she/he has no "standing" to bring the matter to court either. Often
grandparents or adoptive parents are turned away by the court with this
legal ploy. If the child cannot bring the action and the most involved
adult(s) cannot either, it is like playing a shell game with no pea.
Most every state has a Rule of Professional Conduct that addresses and
approves representation of a minor despite the capacity issue. The Rule
expressly recognizes attorney representation of minors, even if they lack
the ability to make adequately considered decisions. In North Carolina, for
example, Rule 1.14 is titled "Client under a disability." It reads in full:
(a) When a client’s ability to make adequately considered decisions
in connection with the representation is impaired, whether because of minority,
mental disability or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the
client.
(b) A lawyer may seek the appointment of a guardian or take other
protective action with respect to a client only when the lawyer
reasonably believes that the client cannot adequately act in the client’s
own interest. (Emphasis added.)
The Comment section to this Rule states: "Furthermore, to an increasing
extent, the law recognizes intermediate degrees of competence. For example,
children as young as five or six years of age, and certainly those of ten or
twelve, are regarded as having opinions that are entitled to weight in legal
proceedings concerning their custody."
The due process denial stemming from the long habit of denying children
traditional attorney-client representation is not a newly discovered issue.
The In re Gault decision considered the history and good intentions
behind the juvenile court system and firmly ruled that the good intentions
of adults were not an adequate substitute for due process for minors. The
reasoning of In re Gault is worth considering fully, even though it
dealt with delinquency rather than abuse, neglect, and custody. The court
noted that the juvenile court system was designed with the good intention of
not having an adversary hearing so as to be consistent with the state’s
parens patriae role and the rehabilitative, rather than punitive,
intent.
The Court wrote:
The Latin phrase (parens patriae) proved to be a great help to
those who sought to rationalize the exclusion of juveniles from
the constitutional scheme; but its meaning is murky and its
historic credentials are of dubious relevance. . . .
The right of the state, as parens patriae, to deny to the child
procedural rights available to his elders was elaborated by the assertion
that a child, unlike an adult, has a right ‘not to liberty but to custody.'
He can be made to attend to his parents, to go to school, etc. If his
parents default in effectively performing their custodial functions -- that
is, if the child is "delinquent" -- the state may intervene. In doing so, it
does not deprive the child of any rights, because he has none. It
merely provides the "custody" to which the child is entitled. On this
basis, proceedings involving juveniles were described as "civil" not
"criminal" and therefore not subject to the requirements which restrict the
state when it seeks to deprive a person of his liberty... .
Accordingly, the highest motives and most enlightened impulses led to a
peculiar system for juveniles, unknown to our law in any comparable context.
The constitutional and theoretical basis for this peculiar system is -- to
say the least -- debatable. And in practice . . . the results have not been
entirely satisfactory. Juvenile Court history has again demonstrated
that unbridled discretion, however benevolently motivated, is frequently a
poor substitute for principle and procedure. In 1937, Dean Pound wrote:
"The powers of the Star Chamber were at rifle in comparison with those of
our juvenile courts . . . ." Departures from established principles of due
process have frequently resulted not in enlightened procedure, but in
arbitrariness. . . .
Failure to observe the fundamental requirements of due process has resulted
in instances, which might have been avoided, of unfairness to individuals
and inadequate or inaccurate findings of fact and unfortunate prescriptions
of remedy. Due process of law is the primary and indispensable foundation of
individual freedom. It is the basic and essential term in the social compact
which defines the rights of the individual and delimits the powers which the
state may exercise. As Mr. Justice Frankfurter has said: "The history
of American freedom is, in no small measure, the history of procedure." But
in addition, the procedural rules which have been fashioned from the
generality of due process are our best instruments for the distillation and
evaluation of essential facts from the conflicting welter of data that life
and our adversary methods present. It is these instruments of due
process which enhance the possibility that truth will emerge from
the confrontation of opposing versions and conflicting data.
"Procedure is to law what 'scientific method' is to science." ...
. . . The observance of due process standards, intelligently and
no truthlessly administered, will not compel the States to abandon
or displace any of the substantive benefits of the juvenile process. But it
is important, we think, that the claimed benefits of the juvenile process
should be candidly appraised. Neither sentiment nor folklore should cause us
to shut our eyes. . . . .
. . . The features of the juvenile system which its proponents have
asserted are of unique benefit will not be impaired by
constitutional domestication.(23)
To make concrete the Court’s maxim "procedure is to law what scientific
method is to science," we need only examine in detail the key issue in the case
of Chris B., described above: the constitutionally significant difference
between a child having an attorney with the traditional ethical duties of
undivided loyalty, confidentiality, and competent representation as opposed to
having an attorney with the very different ethical duty of advocating "best
interest."
Distinctions Between Traditional Counsel and
GAL Representation
The ABA Standards of Practice for Lawyers Who Represent Children in Abuse
and Neglect Cases define the "child’s attorney" as follows: "The term child’s
attorney means a lawyer who provides legal services for a child who owes the
same duties of undivided loyalty, confidentiality, and competent representation
to the child as is due an adult client." The Commentary then adds: "These
Standards explicitly recognize that the child is a separate individual with
potentially discrete and independent views. To ensure that the child’s voice is
heard, the child’s attorney must advocate the child’s articulated position...As
with any client, the child’s attorney may counsel against the pursuit of a
particular position sought by the child."
The ABA Standards then define "Lawyer Appointed as Guardian Ad Litem:" "A
lawyer appointed as ‘guardian ad litem’ for a child is an officer of the court
appointed to protect the child’s interest without being bound by the child’s
expressed preferences." The Commentary then adds: "...The chief distinguishing
factor between the roles is the manner and method to be followed in determining
the legal position to be advocated. While a guardian ad litem should take the
child’s point of view into account, the child’s preferences are not binding,
irrespective of the child’s age and the ability or willingness of the child to
express preferences." All across our nation on a daily basis this fundamental
distinction and its ramifications are unnoticed or ignored.(24)
It is therefore worth going into considerable detail to explicate the impact on
children using Chris as an example. Chris was denied pro bono traditional
representation because representation by a GAL attorney was deemed comparable.
The North Carolina Guardian ad Litem Division, a division of the Administrative
Office of the Courts, tries to provide each child involved in abuse and neglect
proceedings a lay advocate (a volunteer) who is represented by an "Attorney
Advocate" (a staff attorney). The program, while a good GAL model, is
overwhelmed by the shortage of funds and volunteers. In materials prepared for a
Continuing Legal Education Seminar sponsored by the Juvenile Justice and Child
Rights Section of the N.C. Bar Association in October, 1998, the Program’s
statewide director wrote:
Guardian ad Litem legal advocacy differs significantly from traditional
attorney-client advocacy. The GAL advocates for the best interest of the client,
which may or may not be the same as the client’s expressed wishes. This type of
legal advocacy is known as "best interest" representation. In child
protection cases, the GAL substitutes his or her own judgment for that of the
minor client..... In a system where both a lawyer and volunteer are
appointed, they both stand together in the shoes of the child, and are
permitted to substitute their judgments as to what is best for the child....
In child protection advocacy someone must assume the responsibilities of the
client in relationship with the attorney. Someone must make decisions about the
purposes and objectives of the GAL/AA legal advocacy and how to achieve those
ends. The child-client cannot make those decisions. As the GAL and AA stand
together in the shoes of the child client, the AA must necessarily look to the
GAL to assume some of the responsibilities that a client would fulfill in the
traditional-client relationship.... If an attorney represents the wishes of a
child then the traditional "attorney-client relationship" rules apply... The
attorney’s role may determine whether a child’s communication with the attorney
are privileged. ... In order to determine the issue of privilege, we
begin with an examination of what or who is being represented. In 7A-586 the
statute mandates that the guardian ad litem and attorney represent the "best
interest of the child." This best interest is defined and created by law.
Therefore, one could say that it is a legal fiction---an "it". The attorney is
not assigned to represent the child’s wishes, but rather to represent what is
deemed to be in the best interest of the child. This "legal fiction" is not too
distinct from the legal fiction that is created by the existence of a
corporation. A corporation has no life but exists as a creature of law. It is an
"it." The guardian ad litem and the attorney advocate have the same duty in the
representation of best interests... There is no law on the point but the
comparison makes sense in the nebulous world in which guardian ad litem and
attorney advocate operate.(25)
A Child Is A Rights-Bearing Person, Not An "It"
It could not be more clear: a child is a rights-bearing person, not a "legal
fiction," not a "corporation," and not an "it." In Planned Parenthood of
Cent. Mo. v. Danforth, the Supreme Court wrote: "Constitutional rights do
not mature and come into being magically only when one attains the state-defined
age of majority. Minors, as well as adults, are protected by the Constitution
and possess constitutional rights."(26) Even prior to
that the court had written in
Wisconsin v. Yoder: "These children are ‘persons’ within the meaning of
the Bill of Rights. We have so held over and over again."(27)
Wisconsin v. Yoder, 406 U.S. 205 (1972). In the famous arm band case,
Tinker v. Des Moines Community School Dist., the court stated: Children are
persons and "possessed of fundamental rights which the state must respect."(28)
Further, the U.S. Constitution and all state constitutions have language
declaring that each "person" shall have the right to due process and equal
protection of the law.
The appointed "Attorney Advocate" for Chris charged with the radically different
duty, albeit important and beneficial to the child, of representing the "it"
(best interest) cannot be deemed equivalent to traditional "counsel" for the
person. Federal and state due process prohibit equating the two. To hold
otherwise is to treat children as property; as "things" with no opinions,
desires or wishes worthy of consideration.
The U.S. Supreme Court has stressed the fundamental nature of the right of court
access to our form of government: "The right to sue and defend in the courts is
the alternative to force. In an organized society it is the right conservative
of all other rights, and lies at the foundation of orderly government. It is one
of the highest and most essential privileges of citizenship...."(29)
Impact on Chris B. of
Denial of Counsel
Not only does the "Attorney Advocate" in lieu of traditional counsel deprive
children of due process and equal protection, it distorts the operation of the
judicial system when a child is denied individual representation. As Chris’ case
illustrates, reliance on the "Attorney Advocate" system means that issues are
not fully explored and legal arguments are not presented. Silencing the
minor by depriving him/her of court access or of representation by counsel
obstructs the adversary process
and, therefore, the truth-finding process. The "Attorney Advocate" adopted a
policy of not communicating with Chris and of obstructing him in his efforts to
communicate with the Court. The "Attorney Advocate" ignored or disagreed with
Chris’ desire for immediate adoption. His "Attorney Advocate" failed to make a
motion or marshal the law and evidence supporting Chris’ protected liberty
interest in his existing family unit which existed for six years. The "Attorney
Advocate" did not move for a permanency hearing and adoption plan - even though
all parental rights had long been terminated. Nor did she present to the court
the compelling arguments for additional Medicaid guaranteed mental health
treatment for Chris and his hoped-for-adoptive family. Nor did she present to
the Court the many compelling arguments for insuring that Chris’ care giver and
de facto parent of six years be able to give and get feedback on Chris’
treatment needs and progress. Had traditional, vigorous representation of Chris’
expressed wishes been allowed, this child might not have suffered the trauma of
being removed from the only loving family and home he ever had. Without
traditional counsel to put forward Chris’s needs and interests, the fact-finding
process was defective and resulted in a gross injustice.
Justice Rehnquist has acknowledged the harm to a child stemming from a defective
fact-finding process:
The child has an interest in the outcome of the fact-finding hearing
independent of that of the parent. To be sure, ‘the child and his parents share
a vital interest in preventing erroneous termination of their natural
relationship.’ But the child’s interest in a continuation of the family unit
exists only to the extent that such a continuation would not be harmful to him.
An error in the fact-finding hearing that results in a failure to terminate a
parent-child relationship which rightfully should be terminated may well
detrimentally affect the child.(30)
That Chris was "detrimentally affected" is an understatement: he suffered
re-abuse from his step-father because of the system’s misguided attempts at
reunification. He suffered by the system’s failure to have terminated parental
rights quickly. He suffered by being left "double parked" in state custody as a
foster child for six years and being denied a permanent home He was traumatized
when moved from his home of the last six years to another "placement." He was
then re-traumatized when moved again. He probably assumes this writer abandoned
him thereafter since his new placement/location were withheld under the scam of
"confidentiality."
Kelly & Ramsey, in their article entitled Do Attorneys for Children in
Protection Proceedings Make a Difference? - A Study of the Impact of
Representation Under Conditions of High Judicial Intervention, sum up the
reality faced by Chris and most court-involved children:
Representation seemed to be a token affair, a mere procedural requirement
with attorneys serving as a rubber stamp for the recommendation of the
department of social services. This kind of system gives the illusion that
abused and neglected children have their own advocate when in fact they do not.(31)
Or, as the 1993 ABA Report of Children at Risk put it: "Even when children
are represented, the representation they receive is sometimes inadequate.
Children’s cases are often ‘processed’, not advocated, and too frequently
children’s interests are poorly represented."(32)
Evolving First Stage
Rights for Children
That a child should have the rights of court access and to be heard through
traditional counsel whenever he/she has significant interests at state seems
undeniable. But such rights are denied routinely and frequently. We must firmly
establish these rights and their full implementation in all courts. We must also
establish substantive rights for children, for example to escape an abusive
family or to oppose ill-conceived efforts to break up a family. Currently
children qualified under Medicaid have the best health insurance policy money
could buy - on paper that is. The Federal Medicaid statute creates a separate
program for the "Early and Periodic Screening, Diagnosis and Treatment" (EPSDT)
of Medicaid recipients under the age of 21. These services are mostly
preventative. The services promised include a comprehensive medical history,
physical examination, immunization, laboratory services and health education.
Mental health, vision, dental, and hearing services are mandatory. In addition,
the state must offer "such other necessary health care, diagnostic services,
treatment, and other measures to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening services, whether or
not such services are covered under the state plan."(33)
All of the few lawyers who practice in this area know that denials and
inappropriate levels of care are the norm, not the exception. The Medicaid
system for children suffers from budget deficits implemented through managed
care techniques. Every child, not just those poor enough to qualify for
Medicaid, should be entitled to appropriate health care. Lawyers must be
trained, available, and paid to fight for these basic rights.
Similarly, the federal Individuals with Disabilities Education Act promises
every child a free appropriate public education. If a child is identified with a
disability, the school system is required to develop, along with the parent(s),
an Individual Education Plan for the child providing tailor made aids, supports,
and services to accommodate the child’s learning needs as much as possible.
Again, all of the few lawyers who practice in this field know that huge numbers
of disabled children are denied appropriate services. Again, lack of adequate
funding at the local, state, and federal level is a primary cause - followed
closely by a lack of moral outrage by those of us aware of this institutional
immorality.
One can easily see that undiagnosed or diagnosed but inadequately treated
disabilities in children have a direct impact on juvenile delinquency. The
Mental Health Unit of Legal Services of North Carolina, as have a few other
organizations, has developed a delinquency court an advocacy concept to redress
denial of appropriate treatment services for youth. The crack in the system
through which children fall arises because the appointed lawyer for the child in
a delinquency proceeding, even though serving in the role of traditional counsel
and not "best interest" representation, often does not have the training, and
usually will not be paid for the time necessary, to address the denial of
Medicaid mental health services and/or special education services. Appeal of the
denial of either of these services necessitates initiation of proceedings in an
entirely different forum from the delinquency court, such as the state’s office
of Administrative Hearings or Federal District Court. Appointed counsel rarely,
if ever, take these steps. These needs of the child fall through the cracks. As
a result, the pattern of misbehavior continues or increases and so does the
probability of out of home and community placement, such as "training school."
This costs more and frequently puts the child on a track of
institutionalization, including prison.
Our project, Health Education and Advocacy Link (HEAL), takes referrals from the
delinquency system (the court, the court counselor, or defense attorney) when a
child is red-flagged as having undiagnosed or untreated mental health, special
education issues, or placement issues. HEAL represents the child, not the
parent, in the capacity of traditional counsel. We become the civil lawyer for
the child and do not represent the child on the delinquency petition, even
though providing input on disposition is an essential role for the HEAL
attorney. After two years, we have seen a average of 4 positive outcomes
(creation of an IEP, provision of appropriate mental health services, remaining
in the home or community, etc.) per child represented by the HEAL Project. The
delinquency court judges embrace the HEAL Program because they too see daily the
denial of necessary services to children that contribute to delinquent behavior.
HEAL representation takes those issues out of their court rooms and the judges
get to dodge the issue of whether appointed counsel defending the petition
could/should provide representation on the denial of services issues and submit
fee petitions for all such attorney time spent. The Project HEAL case load must
be small because the cases are very time consuming. Not all referrals can be
accepted. HEAL operates with one staff attorney in one huge county of North
Carolina. Children in the other 99 counties have no such opportunity for lawyers
to help them get needed services. This concept, or some variation, is needed for
every court involved child in the nation. But just like Head Start, which is
indisputably a wise, humane, and cost-saving investment in children, the Bar,
Judiciary, and elected leadership of the nation lack the moral outrage and
political will to insure adequate money is appropriated for such services.
Our national child welfare Establishment implicitly recognizes a child’s right
to food, clothing, shelter, education, and medical care. If parents fail to
provide such basic needs, the CPS can and should take appropriate action,
including bringing a petition alleging neglect or dependency. Yet the
wide-spread failure of the system to meaningfully provide these services, even
when the state has taken custody of the child, is ignored despite it being
labeled a decade ago a "national emergency" and "institutional immorality."
Given all the research and studies about early childhood development and its
impact on behavior and violence, our failure to devote whatever resources
necessary, both human and capital, to insure no child is denied basic needs is
truly a moral outrage. Children, the intended beneficiaries of the right to
these services, should be able to initiate proceedings through their own real
lawyers to create and enforce their right to developmentally critical services.
Barriers of standing, capacity, access to free lawyers paid adequately and
trained to do a competent, vigorous job must be identified, exposed publicly,
and removed immediately. The legal process can then begin to develop a rich body
of case law and procedure intended to serve the needs of our nations children.
The goal is not lawyers; lawyers are the means to the goal of meeting the basic
needs of children.
The tireless and brilliant civil rights lawyer Arthur Kinoy gives us a glimpse
of the role the Bar could play in this challenging and exciting opportunity to
go beyond rhetoric to rights for children. Professor Kinoy, writing in 1969, was
addressing how the legal profession could remain relevant to the contemporary
social problems of the nation. Referring to the African American civil rights
struggle, of which he was an integral part, he wrote:
There are in this country today many lawyers, young and old, who are
beginning to participate in the exciting search for answers to the ever-pressing
question of the relevancy of law and the legal profession to the central issues
of the day. It is no coincidence that it was out of the Southern black movements
of the early 1960's that a new insight into the role of the lawyer began to
develop among lawyers and law students alike: a recognition that a lawyer could
place his or her full skills and talents at the service of people’s struggle for
the achievement of the American promises of equality, freedom, justice, and
peace. Today, unlike the first days of the Southern struggles, from one end of
the country to the other, there are hundreds and hundreds of lawyers attempting
to fulfill this role. They are a new breed of lawyer, with deep roots in the
honored past of our profession, who I would characterize as people’s lawyers.
And as they work and struggle to fulfill this concept of their vision of the
lawyers’ role - to place the full skill and art of their profession at the
service of ever-growing movements of people searching for solutions to the
overwhelming social problems of our era - a body of legal experience develops, a
body of knowledge, concepts, theories, and experiences which constitutes, in a
certain sense, a new body of law. This new body of law for want of a better
term, I would call the area of ‘people’s law’.... I would suggest that the law
schools must capture, if they are to overcome the deadly symptoms of the
fundamental malaise that inflicts us all, the excitement of the new challenge of
making law serve the needs of people in struggle as well as continuing to
fulfill the needs of corporations and the business community."(34)
Hillary Rodham Clinton continued the call in 1992: "We must start changing
our profession’s priorities. The law, the lawyers, and the judges protecting our
families deserve at least the respect now given to the law, lawyers, and judges
protecting our corporate boardrooms."(35)
A Constitutional
Amendment for Children
The parallels between the struggle for fair treatment and due process for
African Americans, women, and children includes the need to put children in our
federal constitution. Our constitution is grounded in what Justice Brennan
called the "Equality Principle" reflecting the supremacy of the human dignity of
every individual. It is in this sacred document that we state in general terms
the values, protections, and promises of fundamental fairness and equality that
embody the noble goals of a great nation. The theory - practice gap between our
promises has been shortened by the struggles of African Americans and women who
have specifically relied upon constitutional terms and interpretations needed to
insure their status as rights-bearing persons. The post-Civil War Amendments and
the Women’s Suffrage Amendment, and even the national dialogue generated by the
unsuccessful Equal Rights Amendment, have served to further the recognition of
all adult persons as full human being entitled to equal dignity and respect. The
maltreatment of children in our nation, including their legal status as akin to
that of property, gives rise to the need for a constitutional amendment
establishing and anchoring in the practice of law our rhetoric about their
treasured status.
At least seventy-nine nations mention children in their constitutions. The
United States does not. Hence, as Connecticut Superior Court Judge Charles D.
Gill put it: "It is ironic that, although corporations in the United States have
long been held to be "persons," and thus eligible for constitutional protection,
the extent to which children, as individuals, have comparable constitutional
rights is still not entirely clear."(36) Chief Justice
A.J. Toal of the South Carolina Supreme Court put it this way in her 1993
dissent in a case involving reunification of a child with a biological parent
who had previously harmed the child:
The majority’s focus is solely on the rights of the Mother. No consideration
is given to the child’s interests or rights. Nor does the majority acknowledge
the State’s urgent interest in the welfare of the child.... Assuming the child’s
interest is best served by keeping the family unit intact at this point ignores
the very nature of the proceeding and the findings of the previous hearing. If
the child’s interest are not adequately provided for by the procedure, and I
would opine based upon the majority’s interpretation of our statute they are
not, a change is in order. As noted above, the state of the child in this
country and this state is a disgrace. The parents are protected to the utmost
extent but the children, who cannot reasonably offer any protection of their
own, are ignored. If our state and federal constitutions do not protect our
children from abuse and an unstable family life in their formative years, then
they should be amended so that they do."(37)
Continuing her dissent, Justice Toal then referred to Judge Gill’s excellent
Law Review article which, she wrote, "exposes the desperate situation children
find themselves in because of this country’s biological bias."(38)
Judge Gill has been working tirelessly for nearly 10 years to improve the
condition of our nation’s children through passage of a constitutional
amendment. On October 18, 1997 twenty children’s advocates from the fields of
medicine, education, and law met in Washington, DC to draft such an amendment.
After extensive pre-meeting preparation and a full day of drafting, the
following working draft was developed:
"The rights of person under the age of 18 years shall include all the due
process and protective rights possessed by those over the age of 18 years. Such
rights may be limited only upon demonstration of a compelling state interest,
and any such limitation shall be accomplished by the least intrusive means.
Nothing herein shall be construed to diminish any rights of person under the age
of 18 years, nor to preclude the enhancement of rights of such persons."
A conscious decision was made by the group not to include an itemized wish
list for children, such as health care, education, etc. It was agreed that a
more general statement of principle regarding due process and protective rights,
to be developed and defined by case law as most other rights have been, would
have the best chance of passage. Top ranking leadership from the American
Academy of Pediatrics and the American Association of School Administrators
(representing 18,000 school superintendents) were present and in agreement. Both
organizations support the amendment as written, but neither is woodenly attached
to this precise wording. Improvements are welcomed.
The process of organizing around a constitutional amendment is both a legal and
political strategy. In the process public education can be done generating broad
public support for overcoming the "institutional immorality" and
child-as-property status of children. The process itself is a goal. A federal
amendment for children is certainly the ideal, however, local efforts to
amendment state constitutions may be more feasible. Regardless of one’s view on
whether or not passage of an amendment can in fact occur, engaging in national
or statewide discussions about these issues would help build the popular support
necessary for positive action. Similar to the civil rights struggles of the
past, the moral issues exposed in the denial of basic human dignity faced by
children are powerful galvanizing forces. Just as it did for Women and African
Americans, the process of seeking a constitutional amendment setting forth
simple anchoring principles of human rights and values, and making them
statements and commitments of the national will, can quantitatively further the
cause of justice for children.
Ratification of the United Nations Convention on the Rights of the Child
(CRC)
The Convention on the Rights of the Child (CRC), like a constitutional
amendment, is an agreement to begin a process for improving the lives of
children and families. It is a shared global statement of directions and goals
for bettering lives of children. The CRC has 41 substantive articles that create
an international, almost universally recognized, framework for government
policies regarding the protection and well-being of children. The procedural
articles establish an international body (called the Committee on the Rights of
the Child) to monitor implementation by states parties. This body has no
enforcement power and can only issue reports on compliance and rely on moral and
public pressure to create better policies for children. The United States was
active in the 10 year drafting process leading to the CRC being adopted by the
UN General Assembly on November 20, 1989. By 1998, 193 nations had ratified the
Convention, more than any other treaty in history and in the shortest time. Only
the US and Somalia have failed to ratify the Convention. Somalia has an excuse:
it is precluded from participation because it currently does not have the
governmental capacity to ratify an international treaty. The US has no excuse.
The US signed the CRC in 1995 indicating our intention to consider ratification.
President Clinton said he would submit it to the Senate for ratification as soon
as the Convention on the Elimination of all forms of Discrimination Against
Women was ratified. In 1997 Senator Jesse Helms wrote to then Ambassador
Madeline Albright warning Clinton not to include the CRC on his list of treaties
to be ratified. Despite widespread support within the US from hundreds of
groups, Helms has accepted the mythology that the CRC undermines parental rights
and surrenders our national sovereignty to "World Government." The President has
the option of submitting the CRC to the Senate for it’s "advice and consent"
with a Statement of Reservations, Understandings and Declarations (RUDs). These
RUDs allow any country to clarify language in the treaty and reject any part of
the treaty contrary to US law or policy. Clinton has yet to even submit the CRC
to the Senate for discussion. One objection to the CRC is that it would require
the United States to promise not to execute children below the age now allowed
in many US states. Once again, adult politics has taken precedence over
protection of children.
The CRC calls for freedom from violence, abuse, hazardous employment,
exploitation, abduction or sale; it calls for equal treatment regardless of
gender, race or cultural background, adequate nutrition, free compulsory primary
education, adequate health care, the right to express opinions and freedom of
thought in matters affecting children; it calls for safe exposure/access to
leisure, play, culture, and art. The CRC repeatedly underscores the primary role
and the authority of parents and makes its rights contingent on the child’s age
and evolving capacities. The CRC creates no right for anybody, much less the UN,
to sue parents, the state, or federal government. However, there is a
requirement that each ratifying nation submit a written report on progress in
achieving the goals of the Convention. Non-governmental organizations are
encouraged to submit written comments on the nation’s progress. Is our nation
afraid of the international community learning of our "institutional immorality"
in the way we treat our children?
Despite the lack of enforcement power, ratification is not an empty act. Just as
a constitutional amendment is an act of commitment of and to the nation, the act
of commitment to the international community by joining in the goals and vision
of the CRC is itself vastly important.(39) Of course
both the constitutional amendment and the CRC will require on-going grassroots
support to get them passed/ratified and meaningfully implemented. But both, if
approached properly, serve precisely as such organizing and public education
tools that can hold the nation’s feet to the fire on its rhetoric about valuing
children. Linking the demands for a constitutional amendment and the CRC is
extremely important. They flow together as national and international promises
and pledges to accord all children the core, elementary status as fully sacred
human beings.
Conclusion: A Crusade for Children
Once the Greek philosopher Thucydides was asked when justice would come to
Athens. He answered: "Justice will not come until those who are not injured are
as indignant as those who are injured." Unfortunately, our collective
consciousness, manifested through our government, our culture, out institutions,
and our individual selves, is not sufficiently indignant or morally outraged
over the maltreatment of children. We are in denial. We pretend that our
business as usual approach is achieving incremental improvement sufficient to be
"adequate." How many of the groups and activities "for" children that you see
reflected in the conferences, brochures, academic gatherings, and newsletters
really tackle the systemic causes of the "institutional immorality?"
The cause of our denial is real enough. Lots of money is needed to pay for the
needs of children created by our market economy which inevitably creates winners
and losers: child care, health care, transportation, child protective services,
quality public education for all children, decent living wages for parents with
work hours that allow quality parenting, and decent living wages for child care
workers, teachers, social workers, juvenile court counselors, and police
officers, to name just a few. We need money to redress racial inequality. And
yes, money is needed to pay lawyers to do high quality litigation seeking to
establish "person" status for children and their inherent rights to the basic
necessities of life. We need money for judges, court personnel, and courtrooms
to hear in a timely manner children’s cases.
You cannot meaningfully discuss the need for such increased appropriations for
children without addressing the campaign finance system whereby private wealth
from approximately 1% of the population accounts for 90% of all political
contributions. That small elite group of "players" buy public policy that serves
their personal and corporate needs (tax breaks, preferences, exclusions,
exemptions, subsidies, inducement packages for corporations to locate, etc.)
Then we and the children are inevitably told there isn’t enough money to fully
fund Head Start; to fully implement the promises of Medicaid services; to pay
teachers and have small classrooms. The number of children living in poverty in
the United States is more than double that of any other industrialized nation.
We all know it. But we aren’t outraged enough to be that political about
advocating for children. We dare not raise hell about the rich getting richer at
the expense of the majority; about the need for tax transfer policies that force
corporations and those made wealthy by them to pay a fair share towards basic
needs for our children. So we deny and pretend the Emperor has on the latest
Fifth Avenue attire and that our business as usual is enough. Meanwhile the
misery index piles up.
As community leaders, professionals, and simply concerned citizens we have a
duty to unsettle and stir up those who are complacent and in denial. We must
comfort the afflicted and afflict the comforted. Redressing the needs of our
children should not be a political issue: As Jesse Jackson put it in 1989: "The
critical issue is no left-wing or right-wing, it is the moral center.... How we
treat children in the dawn of life, and how we treat old people in the sunset of
life, are measures of our character."
We must do as the Civil Rights Movement did: we must act with the courage and
moral outrage in line with the injustice at hand. As Marian Wright Edelman, of
the Children’s Defense Fund, noted a decade ago: "The 1990's will be an era of
struggle for the American conscience and future. And people of faith have to be
moral guerillas." A few years later, her husband, Peter Edelman, resigned his
ranking position in President Clinton’s Department of Health and Human Services
because of Clinton’s support for the so-called Welfare Reform law,
disingenuously labeled the "Personal Responsibility Act", which was estimated to
throw a million children into poverty. This is the type of personal commitment
and crusade attitude that is needed.
We can also learn from the Civil Rights Movement to take a stand in the face of
seemingly insurmountable obstacles. Look at the audacity of the Montgomery Bus
Boycott and the Sit-ins started in Greensboro, North Carolina. We can change the
electoral campaign finance system and insure that our branches of government are
filled with true "representatives" of the People and not simply agents of the
wealthy. We can get the support and money needed to give every child a safe,
permanent home.
Yes, this is an unabashed appeal to our patriotism and our duty to straighten
our civic backbone and fight. Susan B. Anthony said: "Careful, cautious people
always casting about to preserve their reputation and social status, can never
bring about reform." Frederick Douglass raised the same point much earlier:
"Those who profess to favor freedom and deprecate agitation are people who want
crops without plowing the ground; they want rain without thunder and
lightening... Power concedes nothing without a demand and struggle, it never has
and it never will."
If each of us takes a stand on this bi-partisan issue and manifests that stand
with the resoluteness appropriate to the crisis, we will achieve a qualitatively
better quality of life for all children. But the determining factor is whether
we muster the moral outrage to act collectively pursuant to the constitutional
promise of self-government. Using protected First Amendment activity, as did the
Civil Rights Movement, we must act out " a little rebellion, now and then," as
Thomas Jefferson encouraged.
Martin Luther King correctly pointed out that: "Pessimism is a chronic disease.
It destroys the red corpuscles of hope and slows down the powerful heartbeat of
positive action." The Paradox of People Power is that the moment you cease to
believe you have that sovereign power, you lose it. Democracy is not a spectator
sport; it is not something you have, but something, like love and theology, you
DO. For, as Dr. King said, "The ultimate tragedy is not the brutality of the bad
people but the silence of the good."
Our challenge is to establish the forums and opportunities to collectively
nourish the missing moral outrage and convert it into positive, bold, and
creative action aimed at eradication the systemic causes of child poverty and
maltreatment. Recognizing children as rights-bearing persons entitled to access
to court and meaningful legal representation is one important aspect of this
challenge.
REFERENCES & NOTES:
1. See NAACP v. Button, 371 U.S. 415, 429,30 (1963): "In
the context of NAACP objectives, litigation is not a technique of resoling
private differences; it is a means for achieving the lawful objectives of
equality of treatment by all government, federal, state, and local, for the
members of the Negro community in this country. It is thus a form of
political expression.... And under the conditions of modern government,
litigation may well be the sole practicable avenue open to a minority to
petition for redress of grievances."
2. This report is entitled "Child Abuse and Neglect: Critical first
Steps in Response to a National Emergency" and may be obtained from the US
Government Printing Office as stock no. 017-092-001045-5.
3. "Beyond Rhetoric: A New American Agenda for Children and Families",
Final Report of the National Commission on Children at page 84.
4. But note that in contrast to the 2 million dollar cost to society
of each child who is grossly incompetently parented, competent parents
contribute 1 million dollars in gain for society for each child they raise.
This is not counting the expense of crime such as loss of property, medical
costs to victims, law enforcement costs or costs for prosecution and defense.
Licensing Parents: Can We Prevent Child Abuse and Neglect?, by Jack C.
Westman, M.D., Insight Books, Plenum Press, New York and London (1994).
This is a profound book.
5. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 476 (1856).
6. Plessy v. Ferguson, 163 U.S. 537 (1896).
7. Brown v. Board of Education, 347 U.S. 483 (1954).
8. Bradwell v. Illiniois, 83 U.S. (16 Wall.) 130 (1872).
9. One researcher found that "from Roman times to the mid-nineteenth
century children were treated as something akin to property and had rights
which might be characterized as falling somewhere between those of slaves and
those of animals." Cohen, Relationships Between the Child, the Family, and the
State, in PERSPECTIVE ON THE FAMILY 293 (M. Bayles, R. Soffit & J. Grebe, eds.
(1990)).
10. In re Gault, 387 U.S. 1,13, 26 (1967).
11. Planned Parenthood v. Danforth, 428 U.S. 52,74 (1976).
12. Kingsley v. Kingsley, 634 So. 2d 625 (Fla. 1994).
13. For a detailed recounting of the case and splendid analysis of the
legal issues, see Through the Eyes of a Child, "Gregory K.": A Child's Rights
to Be Heard, Family Law Quarterly, Vol. 27 No. 3, Fall 1993 by George Russ,
Esq. Mr. Russ and his wife adopted Gregory.
14. Grissom v. Grissom, 886 S. W. 2d 47 (Mo. Ct. App. 1994).
15. Unpublished Order by Chief Justice Veasey and Justices Walsh and
Holland of Supreme Court of Delaware decided June 19, 1998, Case No. 234, 1998.
16. In re Gault, 387 U.S. at 26.
17. Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142 (1907).
18. IJA/ABA, Juvenile Justice Standards, Standards Relating to Counsel for
Private Parties (1980).
19. ABA Report: "American's Children at Risk", Executive Summary,
page ix. (1993).
20. Barbara Bennett Woodhouse, "Out of Children's Needs, Children's
Rights: The Child's Voice in Defining the Family," BYU Journal of Public Law,
Vol. 8, p.321,327.
21. New York's highest court dealt with this issue in 1976 saying there
had been a "shifting of emphasis" in the case law reflecting "more the modern
principle that a child is a person, and not a subperson over which the parent
has an absolute possessory interest." Bennet v. Jeffreys, 356 N.E.2d 277,
281; North Carolina's Supreme Court recently held: "However, conduct
inconsistent with the parent's protected status, which need not rise to the
statutory level warranting termination of parental rights (cites to statute
omitted), would result in application of the 'best interest of the child' test
without offending the Due Process Clause. Unfitness, neglect, and
abandonment clearly constitute conduct inconsistent with the protected status
parents may enjoy. Other types of conduct, which must be viewed on a
case-by-case basis, can also rise to this level so as to be inconsistent with
the protected status of natural parents. Where such conduct is properly
found by the trier of fact, based on evidence in the record, custody should be
determined by the 'best interest of the child' test mandated by the statute."
Price v. Howard, 484 S.E.2d 528 (1997). The court found the conduct in
that case, "a period of voluntary non-parent custody", sufficient justification
for using the "best interest" standard. At least one federal court has
recognized that, after one year in foster care, the emotional ties between the
foster parent and the foster child may constitute an interest deserving of legal
and constitutional protection. See Brown v. County of San Joaquin, 601 F.
Supp. 653, 662 (1985).
22. See in re BGC, 486 N.W.2d 239 (Iowa 1992); Schmidt v. Deboer (In re
Baby Girl Clauson), 502 N.W. 2d 649 (Michigan 1993); and, in re Kirchner, 649
N.E. 2d 324 (Illinois).
23. In re Gault, 387 U.S. at 16-22.
24. This is not to say the issue has not been recognized, debated, and
publicized in detailed and scholarly fashion. For a very thorough and
powerful presentation of the importance of traditional counsel for children, see
"Ethical Issues in the Representation of Children", Special Issue, Fordham Law
Review Vol., LXIV, Number 4, March 1996. However, the thrust of this paper
remains: the gap between theory and practice regarding what constitutes
justice for children must be closed.
25. Materials written by Ilene Nelson, GAL Administrator, 322 Chapanoke
Road, Raleigh, North Carolina 27603 (919)662-4300.
26. 428 U.S. 52, 74 (1976).
27. 406 U.S. 205 (1972).
28. 393 U.S. 503, 511 (1969).
29. Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 142
(1907).
30. Santosky v. Kramer, 455 U.S. 745, 788 N.13 (1982) (Rehnquist,
J., dissenting, joined by Burger, C.J. O'Connor, J.)
31. Kelly & Ramsey, 21 J. Family Law, 405, 453-454 (1982-1983).
32. ABA Presidential Working Group on the Unmet Legal Needs of Children
and Their Families, America's Children at Risk: A National Agenda for Legal
Action 7 (American Bar Association 1993).
33. 42 U.S.C. section 1396d(a)(4)(B). See also 42 C.F.R. section
440.40(b) and 42 C.F.R. sections 441.50-441.62.
34. Arthur Kinoy, "The Present Crisis in American Legal Education",
Rutgers Law Review, Vol. 24, 1969, pp. 5,6.
35. Hillary Rodham Clinton, Address to the ABA Commission on Women (Aug.
1992), quoted in Marshal J. Wolf, Chairman's Column, Fam. Advocate, Fall 1992,
at 2.
36. Judge Charles D. Gill, "Essay on the Status of the American Child,
2000 A.D.: Chattel or Constitutionally Protected Child-Citizen?", Ohio Northern
University Law Review, Volume XVII, Number 3, p. 548 (1991).
37. Greenville County DSS v. Bowes, et al, - SC -, (1993).
38. Id., xx S.C. at xxx.
39. For more information about the CRC and how you can support its
ratification, contact The United States Committee for UNICEF, Office of Public
Policy and Advocacy, 1775 K. Street, N.W., Suite 360, Washington, D.C. 20006
(202) 296-4242.
ADVOCATES FOR CHILDREN'S SERVICES
Fighting for the Rights of Children:
Health Care * Education * Safe & Permanent Families