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October 07, 2013 Articles

Fostering Justice Conference Focuses on the Right to Counsel

By Monique R. Sherman

In June, over  a hundred child-welfare attorneys, judges, legislators, and academics from across the country gathered in Seattle for the Third National Conference on the Right to Counsel for Abused and Neglected Children. A parallel symposium brought together current and former foster youth to address the same issues and report their findings and input back to the full group.

Fostering Justice was unique—while attendees learned from the programming, the focus was on participation and brainstorming. Initially, participants heard from Judge Marguerite D. Downing, of the Superior Court of California in Los Angeles, who explained from the judge's point of view the importance of the participation of children and young people in court proceedings about themselves and the importance of having someone to explain the law and proceedings to them.

Next, Judge William D. Acey presented the points of view of a group of participants he had surveyed about whether his practice of appointing an attorney for every child in dependency proceedings made a difference. Not surprisingly, he reported that children's attorneys answered a resounding "yes" and presented him with bullet points detailing the reasons. The state's attorneys and social workers were not as convinced. Court-appointed special advocates  appreciated the assistance because they are not attorneys and do not have the background to file legal motions.

The response of foster parents was less consistent. But one particular foster parent made clear to the judge that attorneys appointed to represent children need to be dedicated to the representation and need to take the time to do it right. Finally, Mikayla Milam, a seventh grader in foster care, described her experience with an attorney. Although the attorney's efforts to help Mikayla remain in the same school were unsuccessful, Mikayla expressed her gratitude that she had an attorney who listened to what she wanted and gave her the chance to have her voice heard.

Throughout the day, the current and former foster youth expressed similar sentiments. Whether they were successful in obtaining the outcomes they wanted, having an attorney who ensured their voices were heard in the proceedings was of key significance to their conception of the legitimacy of the proceedings.

Before getting down to work, participants received an overview of the status of the right to counsel for children around the country. Funding cuts have impeded progress in some areas, but in other jurisdictions, such as Washington State, the courts have consistently held that there is no categorical right to counsel. Much of the remainder of the day was spent working on the messaging that is necessary to convince key decision makers that the right to counsel for children in dependency proceedings is worth the unavoidable expense.

First, participants focused on the outcomes that could be measured to show that children's counsel are fundamentally useful and actually save money in the long run.

A threshold question had to be answered before the group started down this road: If we focus on outcomes as justification for the expense of children's counsel, don't we run the risk of losing the focus on representation for children in abuse and neglect proceedings as a due process right? The collective answer was that the two arguments are not incompatible and that because the due process argument simply will not hold sway in all corners, an argument based on outcomes needs to be constructed to build broad consensus among key decision makers.

The room full of child advocates generated at least as many potential outcomes to measure as there were participants. The following are among the outcomes that participants suggested could be measured and compared in relation to the presence or lack of child's counsel:

  • number of pre-permanency placements
  • reunification rates
  • length of time to permanency
  • number of kids who age out of care
  • educational stability
  • educational attainment
  • physical health
  • mental health
  • family visits
  • contacts with juvenile delinquency and number of runaway incidents
  • abuse in care
  • repeat maltreatment
  • Participants then shared information about where and how data were already being collected on these and other measures, and brainstormed potential effective measurement ideas for the future. The Children's Rights Litigation Committee has convened several conversations on outcomes and will continue to investigate what outcomes are already being gathered around the country and how this information might be put to use as we think about illustrating the importance of lawyers for children.

    Next, the group tackled the question of effective litigation strategies. In some states, such as Washington, the courts have been grappling with the question of whether (and when) children are entitled to an attorney in abuse and neglect proceedings. After a mock appellate argument conducted by Casey Trupin of Columbia Legal Services and Mike Dale of Nova Southeastern University's Shepard Broad Law Center, participants discussed the most effective arguments in support of the child's right to counsel, including due process. Of key concern was the manner of due process argument to be made: Because children are always in some type of custody, arguments in favor of the child's right to counsel based on due process may be vulnerable to the argument that children's due process rights cannot be the same as adults'. Some advocated a distinction between a child being in the custody of parents (a more typical type of custody that is more akin to liberty) and being in the custody of the state. State custody is a different type of custody that necessarily brings due process considerations into play.

    While the approach certainly will vary from state to state and depend on individual circumstances, the discussion produced tangible ideas for practitioners around the country.

    Legislative Strategies
    Finally, the group discussed the legislative strategies that have been successful in various arenas and recent developments at the state and federal levels. Participants then broke out into discussion groups on federal policy advocacy, state and county legislation, and court and county rules.

    Moving Messaging Ideas
    The symposium ended with sessions on effective messaging. Participants in both conferences worked together to identify the most effective messaging for the various target audiences (judges, the media, members of the public) and discussed the best ways to get those messages out in the era of social media. Some of the most moving messaging ideas came from the current and former foster youth who attended the conference:

    "Nothing about us without us."
    "It's my life. I should have my own voice."

    Other messaging ideas tended more to the practical and humorous:

    "It's a freakin' COURT. You need a freakin' LAWYER."
    "You have a broken toilet? You need a PLUMBER.
    You have a legal problem? You need a LAWYER."
    "You wouldn't want kids to self-medicate—why would you want them to self-litigate?"

    Many participants in the symposium left the day feeling invigorated, inspired, and energized. Indeed, one of the foster youth said that the day had been "life-changing."

    Information and tools generated during the day will be housed on the website . To learn more or to get involved in efforts to secure a child's right to a lawyer in abuse and neglect cases, contact Cathy Krebs, director of the Children's Rights Litigation Committee.

    Keywords: litigation, children's rights, due process, foster youth, right to counsel, dependency proceedings, Fostering Justice, measurable outcomes, litigation, messaging

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    Monique R. Sherman – October 7, 2013