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June 01, 2012

State Report Cards Offer Picture of Child Representation Quality

Claire Chiamulera

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Children’s lawyers wanting to know how their states rank when it comes to appointing lawyers for abused and neglected children can check their state’s report card. The just-released A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused and Neglected Children gives 26 states As or Bs, 9 states Cs, and 16 states Ds or Fs.
The report card is the third issued by First Star and the Children’s Advocacy Institute (CAI). It is based on a study of states’ legal representation practices on behalf of abused and neglected children across six criteria.

According to First Star and CAI, the report serves two purposes:

  • Alert child advocates, policy makers, media and the public of inequities from state to state in providing abused and neglected children with legal representation in dependency proceedings;
  • Prompt a national call to action to promote stronger federal and state laws to provide children highly trained and qualified legal representation that helps them resolve and overcome childhood maltreatment and have better futures.

What’s in a grade?

States receiving the highest marks fully met the following six criteria based on review of their laws, state court rules, case law, and administrative orders:

  • require appointment of attorneys for children in abuse and neglect cases
  • mandate appointment of attorneys for the full duration of the juvenile court proceedings
    require client-directed advocacy
  • require specialized multidisciplinary training for attorneys representing children
  • expressly give a child legal status as a party and do not limit a child’s rights
  • apply their Rules of Professional Conduct (or state equivalent) to children’s attorneys

A point scale was used to rate states on each criterion, with point values set for each based on a state’s type and degree of compliance. States received up to 5 points extra credit if they mandated specific caseload standards for children’s attorneys in dependency proceedings. State officials were also invited to participate in and provide feedback in the grading process.

The grades

Fifteen states received an A or A+:
A+: Connecticut, Massachusetts, Oklahoma
A: Iowa, Kansas, Louisiana, Maryland, Mississippi, Missouri, New Mexico, New York, Ohio, Texas, Vermont, West Virginia

Eleven states received Bs:
Arkansas, California, District of Columbia, Michigan, New Jersey, North Carolina, Pennsylvania, Rhode Island, Tennessee, Virginia, Wyoming

Nine states received Cs:
Alabama, Arizona, Colorado, Minnesota, Nebraska, Oregon, South Dakota, Utah, Wisconsin

Six states received Ds:
Alaska, Georgia, Illinois, Kentucky, Nevada, South Carolina

Ten states received Fs:
Delaware, Florida, Hawaii, Idaho, Indiana, Maine, Montana, New Hampshire, North Dakota, Washington

States receiving As climbed since the last report card published in 2009, a sign that more states have adopted strong laws and best practices on the right to counsel for abused and neglected children in child protection proceedings.

The report acknowledged that many states have excellent practices in place relating to child representation but that these practices are not codified into state law and therefore lack a mechanism to ensure consistent enforceable representation for children. The authors encouraged these states to take steps to codify these practices into law.

On the other end are states with strong right to counsel laws that are not followed in practice. The report urged advocates and policy makers in these states to pursue legal remedies and approaches to enforce these laws so children receive legal representation.

States receiving Ds or Fs were found to have deficiencies in their statutes after review of the six evaluation criteria. Some trends among lower -performing states include:

  • More than 39% of states do not require all abused and neglected children to have legal representation.
  • Only 24% of states require multidisciplinary training or education for child’s counsel.
  • Only 31% of states mandate appointment of client-directed representation for the child.

At least one state, Florida, has disputed its F grade. Florida’s grade was based on the discretionary nature of appointing children’s lawyers, the failure to specify the duration of the lawyer’s appointment in child dependency proceedings, and the failure to address high caseloads. Florida has countered that the grades ignore that CAPTA authorizes its model of representation, which appoints a guardian ad litem or court appointed special advocate to represent the child’s best interests. Florida stressed that the study should look at outcomes of representation models as a quality indicator, not only whether an attorney is appointed to represent the child.

Call to action

The authors outlined the following “next steps” for states needing to improve their legal representation practices.

  • Learn from other states. States can learn from higher performing states’ (Oklahoma, Massachusetts, and Connecticut) laws and best practices and work with them to determine if certain laws and rules in those jurisdictions can be adapted.
  • Ensure state law compliance and enforcement. States with good laws and practices in their statutes that are not being enforced need to take steps to ensure compliance, including public education, media exposure, and litigation.
  • Work with state Court Improvement Programs (CIPs) to incorporate changes related to legal representation of children into law and practice. CIPs are leading reforms in dependency courts. Working with them may lead to opportunities to incorporate child representation best practices into law.
  • Fairly compensate children’s attorneys. Raise the quality of children’s legal representation by improving compensation for children’s attorneys. Fully compensating children’s attorneys for their work can allow them to carry more manageable caseloads and devote their full-time careers to children’s advocacy.
  • Comply with CAPTA. At the federal level, the authors recommended better monitoring of state compliance with the current requirement for representation for abused and neglected children under the Federal Child Abuse Prevention and Treatment Act (CAPTA). They also called for amendments to CAPTA that expand requirements for independent, competent legal counsel for children in dependency proceedings, and ensure children are treated as parties in these proceedings with rights.

The report cards offer an evaluation of states’ legal representation for children. According to the report, many states are doing well and have taken measures to protect children’s legal rights and ensure they receive quality legal advocacy in their laws. States with lower rankings can learn from higher ranked states and benefit from existing state statutes, the ABA’s recent Model Act, CAPTA’s guidance, and the work of state CIPs to foster change in juvenile dependency courts.

Claire Chiamulera is editor of Child Law Practice.