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October 19, 2015 Articles

Representing Very Young Children

By Jeanine McKelvey

In June 2015, the American Bar Association hosted a free teleconference to discuss the representation of nonverbal and young children in the child welfare system. The specific age group discussed was children birth to age five. Children in this group present unique challenges that attorneys are often not trained to address. The lack of language skills makes the zealous representation of these small clients uniquely difficult. The panelists examined the variety of roles that lawyers for young children undertake across the country, including "substituted judgment," "legal interests," "best interest," or a hybrid of roles. They also looked at the obstacles that attorneys representing young children face and the ethical concerns that are unique to this group of clients.

Moderating this discussion was Brent Pattison, director of the Middleton Center for Children's Rights, Drake University Law School. Joining him were Emily Kaplan, assistant attorney in charge, Legal Aid Society, Juvenile Rights Practice, New York, New York; Tammy Mullins, attorney ad litem, Pea Ridge, Arkansas; Lisa A. Kelly, Bobbe and Jon Bridge Professor of Child Advocacy, director, Children and Youth Advocacy Clinic (CYAC), University of Washington School of Law, Seattle, Washington; and Sara Johnson, staff attorney, Kids Voice, Pittsburgh, Pennsylvania.

Models of Representation
Representation models are varied between states, and the panelists represented this variety. In fact, there is not unanimity on the issue of young children in dependency court being appointed an attorney at all. In New York, every child is appointed an attorney, and the majority of them are represented by the Juvenile Rights Practice of the Legal Aid Society. Their model is the "traditional" one in which the attorneys advocate for their clients wishes. With very young children, social workers are used to understand the development levels and to help determine what is in the child's legal interest.

This is very different from the Arkansas model. There, an attorney is appointed for the children at the beginning of the case and uses the "best interest" model. The attorney gathers information from multiple sources and then makes a recommendation to the court that the attorney believes is in the child's best interest. This may include obtaining medical records, requesting hair follicle testing, using play therapy, and counseling reports.

Kids Voice in Pennsylvania is yet another model. Attorneys are appointed at the inception of the cases as a guardian ad litem (GAL) and they represent both the child's legal and best interests. The attorney works very closely with a child advocacy specialist to develop a recommendation that will serve the child's best interest. To that end, they have developed a "road map" that is used to direct their investigation.

In Washington, children are not appointed counsel in every case. For young children, nonlawyer court appointed special advocates (CASAs) are used routinely.

One common thread was seen between each panel member and that was the importance of independent investigation. Each member stressed how important it is for the attorney who represents young children to not completely rely on the reports from the social service agency and to use his or her investigative tools to obtain additional information.

Obstacles Faced in Representing Young Children
One of the biggest obstacles faced by attorneys representing young children is obtaining important information. Unlike the older children who can be interviewed and give insight into the issues, the very young client may not be able to talk to the attorney to guide his or her representation. Additionally, HIPAA laws can prohibit access to important medical information. Obtaining an order that grants the attorney access to medical information is important.

In Arkansas, attorneys obtain an order from the court at the beginning of each case that grants them access to information protected under HIPAA, and they will consult with an expert from Children's Hospital to interpret the medical records.

In New York, the parents need to sign HIPAA releases before the attorney can access the medical information. Attorneys receive additional training on childhood development, and they will observe the children's interactions with the parents and others to help guide their position.

Kids Voice, in Pittsburg, uses their "road map" to guide representation from the time they are appointed at the opening of the case. An order from the court is obtained at the start of the case that grants access to the children's records. Attorneys will visit their clients, obtain medical information, talk to daycare providers, and look at social media for information about the family if it is available. They also rely on the child advocacy specialist to help in obtaining important information, including the medical records. Together they will develop a strategy, with assistance if they disagree on a position.

In Washington, the attorneys appointed for the children often come into the case posttermination of parental rights. They are looking at the stated goal of permanency and the steps being taken to reach that goal. While they meet with their clients and investigate the services, the main goal is to finalize the permanent plan. In some cases they may seek to reinstate parental rights if the goal is no longer in their clients' best interest.

Some additional obstacles faced by the attorney for young children are the high caseloads that many of us carry and the time needed to develop a relationship with the clients. It is important to meet the children at the right time and place. For this age group, it can be important to engage in play activities and listen to what the kids talk about while playing. Keeping caseloads manageable is important to allow this relationship to develop. High caseloads prove to be a barrier in adequate representation, especially to the children in this group.

Ethical Issues Faced in Representing Young Children
Many of the children who come into the child welfare system are part of sibling groups, and representing a young child who is part of a sibling group can be challenging. The older children may have different positions than what is recommended or in the younger child's best interest. In New York, the statements of the child are protected by lawyer-client confidentiality, and even a young child, depending on the maturity level, can direct his or her representation. Assessing the case for possible conflicts between the siblings at the front end is important and can prevent conflicting off an entire case later in the process. Also, the positions that the child client and attorney take can change over time. Assessing the case for conflicts is appropriate at each stage of the case. Because cases can continue for long periods of time, constant vigilance is needed.

Should Kids Be Present in Court?
Just as the representation models were different, the opinions on having children present in court for the hearings were varied among the panel members. In Arkansas, all children are expected to be present in court regardless of their age. This makes the child more "real" and not just a name from the report. Once the initial hearing is done, younger children will come to court periodically and the older ones will generally appear at each hearing.

In Pennsylvania, children generally come to court, but their appearance can be waived on a showing of good cause. The court requires children to be present once every six months, and for younger children, the attorney may ask the court if the child is requested present for the next hearing. If difficult matters are before the court, the child can be excused prior to that part of the hearing.

In contrast, in New York there is no expectation that the child will be present in court. Kaplan shared that the judges prefer young children not be present at the hearings as it was perceived a distraction to the parents. In some cases, the court may bifurcate the hearing to meet the child and then continue with the legal part of the hearing after the child is no longer present. For the children that are placed home with their parents, attorneys will often encourage them to bring the child to court for the hearing. This allows the judge to see the child and parent interacting and can assist the court in seeing the bond.

Some Additional Issues
Assessing the safety of the nonverbal client and ensuring a safe environment for the child is important. In Pennsylvania, the attorney will talk with relatives and older children to gain insight into the issues and gain prospective from different vantage points.

Frequent visitation between parents and children is important to maintain the bond between them. Sometimes there will be a recommendation for visitation for an extended period of time one time each week, but research shows that shorter, more frequent visits are more beneficial to the bonding between parent and child. Additionally, many times a child is said to be "acting out" post-visit with the parents. Because the child is nonverbal, the attorney needs to look at what is happening both before and after the visits. Pattison experienced this type of case, and his investigation revealed that the child was being woken up from a nap and taken to the visit. Once the visit was adjusted to allow for a full naptime, the child no longer had an adverse reaction post-visit.

Representing nonverbal and very young children can be very challenging. There are obstacles and ethical issues that are unique to this area of law. It is important to identify the model of representation in the state where you practice, obtain training in the areas of childhood development, and associate with others who can assist in developing your position. Children in the child welfare system across this country are vulnerable—nonverbal and very young children in this system are even more so. Ensuring they receive competent representation is important and the job of every attorney who chooses this type of practice. This Roundtable should serve as starting point to discuss the representation of these young children in your jurisdiction. Listen to the Roundtable on the Children's Rights Programs & Materials page.

Keywords: litigation, children's rights, child welfare, young children, child development, child advocacy specialist, court appointed special advocate, legal interest, best interest, ethical issues

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Jeanine McKelvey – October 19, 2015