The Bar's Ethical Responsibility to Children"
by Lewis Pitts, Esq.
[Note: This article was published in the Spring 2003 newsletter of the
American Bar Association Center Section of Litigation, Children's Rights
Litigation Committee.]
It was empowering to read the article by Susan Cockfield in the Fall 2002
issue of this newsletter. Attorney Cockfield called for public
education on the issue of how children are routinely denied the due process
right of counsel when they have significant interests at stake.
It is so refreshing to hear a battle cry to take the maltreatment of children
and their de facto status in the legal system as property, rather than as
persons with constitutional rights, into the public arena of democracy and
social change. As a lawyer for children, I see on a daily basis, what
the National Commission on Children in its 1991 Final Report called
"institutional immorality."
I, too, am shocked by the callous treatment of children in the child welfare
system and the public health system. Moreover, I agree with the U.S.
Advisory Board on Child, Abuse and Neglect when, in 1990, they called the
situation a "national emergency."
There is a huge gap between our rhetoric proclaiming children as "our national
treasure" and the reality of how we prioritize resources and attend to their
actual needs. As a society, we need to move beyond rhetoric to rights
for children -- due process protective rights for children -- first and
foremost of which is the right to be heard through vigorous counsel.
The Model for Reform: Lessons from the Civil Rights Movement
A connection can be drawn between the way our system treats children and our
historical treatment of African Americans and women. the parallel is
unmistakable when considered in a legal context: each group has the grim
distinction of being seen as less than fully human and thus not
rights-bearing persons in the eyes of the law.
While African Americans and women enjoy equal protection today (in theory at
least), it was a long and hard-won battle. Children are on the
doorsteps of such a struggle today, and I urge that we adopt a civil rights
strategy for this fight, such as was successful for abolitionists and
suffragists in securing personhood status.
We must draw upon the rich history of creative lawyering, in tandem with
superstructure and grassroots mass action. This raises the crucial
importance of linking such litigation simultaneously with public education,
organizing, media work, marches and other protected First Amendment
activity. More importantly, the civil rights movement approach allows
and encourages us to fight to end the mistreatment and abuse of our children
with the moral outrage and indignation it deserves.
To effectively address the denial of basic rights to children, we will have to
deal with complex and controversial things like economics, taxes and budget
cuts, and campaign finance reform. We will meet resistance just as did
Dr. Martin Luther King, Jr. when he introduced a critique of
capitalism and militarism into the struggle against segregation. But
as Frederick Douglass said, "Power concedes nothing without a demand."
We must build up the demand based upon recognition of the depth and entirety
of the problem.
Promises Made, Promises Broken
It is certainly a "problem" when our government routinely breaks the three big
federal promises made to children:
- The Medicaid Act promises early and periodic screening, diagnosis and
treatment for children's medical and mental health needs;
- The Individuals with Disabilities Education Act (IDEA) promises a free,
appropriate, public education to children with disabilities, including
emotional/behavioral disabilities so often present in childhood involved in
the foster care system; and
- The Adoption and Safe Families Act (ASFA) promises, among other things,
the speedy and permanent placement of children who become involved in the
foster care system.
These promises of essential services are important for all children, but for
court-involved children (delinquency court and foster care court), they are
"make or break" needs. All three cost money, however -- lots of money --
to implement fully.
When doctors and dentists are not reimbursed fairly, they choose not to
participate in the Medicaid program, leaving a grossly inadequate number of
medical and mental health professionals who will. When parents do not
receive early intervention with adequate services or an opportunity to earn a
living wage, there is little hope that they will be able to turn things around
and become successful parents. When children do not receive special
education services that are tailored to their actual needs, "manifestation
determination" hearings that are meaningful and fair, and appropriate transition
services, they do not have the chance to explore their potential to become
successfully independent adults. When foster parents are not given
adequate rates and support services, it is unlikely they will be able to meet a
child's many needs. When child protection social workers are overburdened
and underpaid, they cannot even identify all of the children who desperately
need and are entitled to help. In addition, children need adoption
placement services. They need fully funded Head Start Programs. They need
public schools that are adequately funded with reasonable class sizes.
They need mentors. The list could go on, but most of all, they need love.
When these things are not provided, foster children are at even higher risk of
delinquent behavior. They need a delinquency court system able to
recognize these undiagnosed or diagnosed yet untreated disabilities.
They need a court system seeking to rehabilitate that has appropriate
rehabilitation services available. They a court system with adequate court
personnel and facilities, and trained judges with the time and temperament to
really pursue "the child's best interest."
Corporate Welfare Cheats Children
Yet, cycle after cycle of tax breaks, exclusions, exemptions, and preferences
for corporations and the wealthy have resulted in budge cuts that hit hardest at
the weakest and most vulnerable population. Health and human services
continue to be decimated. The Three Big Federal Promises are broken.
We see it every day.
How many hundreds of millions of dollars of deficit did your state have last
year "requiring" such cuts? How much is predicted for next year?
Here in North Carolina, we had over a billion-dollar deficit last year and may
have a two billion-dollar deficit this year. New estimates by the National
Center on Budget and Policy Priorities reveal that state governments are facing
their worst fiscal crisis since the 1930's.
Every service provider for children, even the many with hearts of gold, are
rationing, denying, screening out and trying to justify denial of services.
It is so easy for all of us, in order to keep our own sanity, to irrationally
accept the system's cynical line, "there's no money in the budget," as though
that is a cosmically-fixed reality. By doing so, though, we surrender the
cornerstones of constitutional democracy -- self-government and sovereignty of
the people.
As we know so well, most of these children do not even have lawyers to appeal
the denial of essential services guaranteed under current law. Even in
states like North Carolina that have lawyer GALs for foster children these
lawyers only advocate their own "substituted judgment" for the child's best
interest regarding placement and have no authority, training or pay to appeal
even the grossest denial of Medicaid or IDEA services. Similarly, in
delinquency court, the children have a lawyer to defend the charge in the
petition but no one to appeal a denial of services.
Jane's Story
Most lawyers who work with children have seen a composite child, "Jane,"
interact with a money-starved system: she is allowed to be physically
and/or sexually abused repeatedly at home because Child Protective Services
(CPS) does not have the resources to investigate the report of abuse; finally
Jane is brought into foster care but not provided with the mental health
treatment she needs. Jane is not "identified" as in need of special
education services despite all the signs and requests from the foster parent.
Jane gets into trouble in school due to her emotional/behavioral disability but
gets no "manifestation determination" hearing. Jane is suspended or
expelled from school because of her disability-related behavior. While
suspended or expelled from school, Jane gets arrested for possessing drugs or
joy riding in a car or shoplifting. Jane has a lawyer to defend the
"charge" but no lawyer to sort out and appeal all of the above broken federal
laws guaranteeing services. The delinquency charge results in a permanent
removal from her foster home and her transfer to a group home or a locked
facility.
At any point in Jane's story, a lawyer could make a significant difference and
change the final outcome. For example, a lawyer could have ensured that
Jane received the appropriate mental health and special education services soon
after her entry into foster care, thus preventing her eventual expulsion from
school and involvement in the juvenile justice system.
Securing Justice for Children
In re Gault, 387 U.S. 1, 13, 26 (1967) said: "...neither the 14th
Amendment nor the Bill of Rights is for adults alone" and that "under our
constitution the condition of being a boy or girl does not justify a kangaroo
court." While the court did not define "kangaroo court," we know it when
we see it, and we see kangaroo courts every day for children. They are
treated as objects of the proceedings rather than participants with the right to
be heard through counsel.
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, our institutions,
and our individual selves, is not sufficiently indignant or morally outraged
over the maltreatment of children. Could it be because the general public
does not know the truth?
We, the civil rights lawyers for children, know the truth, and we must step up
and speak out. We must take the need that children have for lawyers to the
court of public opinion. The goal is not lawyers, however. The goal
is obtaining for children their inherent right to the basic necessities of life.
Lawyers are the means to that end.
We need to share among ourselves our successes and failures, our
pleadings/briefs, tactics, and strategies. Most of all, we need to infect
one another with the enthusiasm and hope essential to be vigorous and creative,
and not negative and pessimistic. We need to critically, but
constructively, ask why we rarely have the opportunity to attend conferences
with the theme of children as "persons" with rights and how to fight for those
rights. We need to get back to the classic trial lawyer, pep rally-type,
constitution-thumping conferences that will fire us up, teach us how to link
litigation with public education, and coalesce our efforts into a united front.
We need to build upon the focus on constitutional rights of South Carolina Chief
justice jean Toal, who wrote in dissent: "...the state of the child in
this country and this state is a disgrace...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." Greenville
County DSS v. Bowes 437 S.E. 2D 107, 114 (1993).
In short, we need action consistent with the Preamble to the Rules of
Professional Conduct, which says that lawyers are "public citizens with a
special responsibility for the quality of justice."
Susan Cockfield has urged us to "change the dialogue in this discussion."
Who wants to attend and/or help organize a small gathering of vigorous, fired
up, civil rights litigators for children to do just that?
My E-mail address is
Lewisp@legalaidnc.org
and direct phone number is 919-226-0051.
Lewis Pitts has been a public interest lawyer for 30 years, focusing on
racial justice, children's rights, environmental justice and participatory
democracy. He currently is senior managing attorney for
Advocates for
Children's Services of Legal Aid of North Carolina in Durham, NC.
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