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GAL is charged with forming the client’s position by using his/her own
judgment. Under this model, the attorney GAL’s judgment as to the child’s
“best interests” takes precedence over the client’s wishes.
Pros: This model is favored by many as the traditional model of repre-
senting children, particularly young children who cannot meaningfully
178 Legal Ethics in Child Custody and Dependency Proceedings

participate in their litigation. It is also thought to protect older children
from the harm of their own bad choices.

Cons: Critics charge that this is an “old fashioned,” paternalistic model
of representation that treats children as chattel rather than empowering
them in the system. Critics charge that advocate directed representation is
wrong by definition because: 1) attorneys are not ethically allowed to dis-
regard their clients’ directives; 2) attorneys are not qualified to make “best
interests” determinations; and 3) the legal system requires that attorneys
be zealous advocates for a client’s position, not agents of the court. Critics
also charge that the system results in “relaxed advocacy” where attorneys
appointed as GAL feel, and are treated, as relieved of their traditional
lawyering responsibilities. Critics argue that this model has contributed
to sub standard representation of children across the country.

Jurisdictions Using a Form of This Model: Approximately 60% of the U/S
jurisdictions use a form of this model.

Source: The Colorado version is comprised of the following sources:
Colorado Revised Statutes 19-1-103, 19-1-111, 19-3-203; The Colorado
Rules of Professional Conduct at CRS, Volume 12 – pages 711–831; Supreme
Court of Colorado Chief Justice Directive 97-02; Colorado GAL Standards
of Practice.

2. THE LAY GUARDIAN AD LITEM MODEL

This advocate directed model provides for a non-attorney to “represent” the
child’s “best interests.” This person, usually a non-professional volunteer,
advocates for what he/she believes (not necessarily what the child believes)
is in the child’s “best interests.” The lay GAL “stands” in the proceeding
for the presumptively incompetent child. The focus is the protection of the
child by an adult who attempts to know and then articulate the child’s best
interests.

The NACC discourages the use of this as an exclusive model. Children, even
more than adults, require trained legal representation and this model, by
definition, is not legal representation. While the NACC recognizes the value
of non-legal advocacy for children, whether in the form of lay GAL or CASA,
we stress that it cannot be a substitute for trained professional attorneys
for children. On this point, the NACC and National CASA have agreed.
Non-legal advocates play an important role in the process, and jurisdic-
tions should consider implementing such programs in addition to appointing
attorneys.
Appendix A. National Association of Counsel for Children 179

Due to the substantial shortcomings of this model, states which use this model
of representation frequently appoint an attorney to represent the child or the
lay GAL.

Pros: The model has value when used in conjunction with legal counsel.

Cons: Assuming this is the only “representation” provided, the child has
no legal counsel. Lay GALs are unable to provide “legal” counsel and
cannot, for example, present evidence, examine witnesses, appeal adverse
decisions, or advise the client of the ramifications of legal matters. Lay
GALs attempting to serve in the role of legal counsel are engaging in
the unauthorized practice of law. Additionally, lay representatives are less
accountable than professionals for their actions because their conduct is
not governed by ethical and legal standards.

Ann M. Haralambie identifies and discusses the “hybrid” role in The Child’s
Attorney, A Guide to Representing Children in Custody, Adoption and Protection
Cases, ABA 1993 at p. 37.

Child Abuse and Neglect Cases: Representation as a Critical Component of Effec-
tive Practice. NCJFCJ Permanency Planning for Children Project, Technical
Assistance Bulletin, 1999, page 45.

Jurisdictions Using a Form of this Model Include: Florida, Hawaii, Maine

Sources: Florida uses a lay volunteer Guardian ad litem model. Florida’s
Guardian Ad Litem Program includes an attorney who advises volunteers on
the protection of children’s rights and represents the program in contested
court proceedings. Fla. Stat. 39.820 (2000).

In Hawaii, children in dependency cases are generally represented by vol-
unteer lay guardians ad litem and CASAs called Volunteer Guardians Ad
Litem (VGAL). Children may also be represented by an Attorney Guardian
Ad Litem. H.R.S. 587–40.

Maine law calls for a GAL who is usually an attorney but is not required to
be by statute. The GAL is considered a party and has the right to call and
cross examine witnesses and has access to discovery. Should the GAL be an
attorney, he/she essentially functions in the hybrid role of Attorney GAL
defined in IV. A. 1. above. It is not clear how such duties can be performed
competently or without violating the law against unauthorized practice of
law if the appointment is of a lay person. Maine Supreme Judicial Court Rules
for Guardians Ad Litem; 22 M.R.S. 4005; 4 M.R.S. 1501.
180 Legal Ethics in Child Custody and Dependency Proceedings

3. THE “TWO DISTINCT LAWYER ROLES” MODEL

A single lawyer model, either advocate directed (best interests) or client
directed, may not meet the needs of all children, given their developing and
varied capacities from infants to mature and articulate teens. This model
would require appointment of a best interest lawyer-guardian ad litem or a
traditional attorney under certain circumstances as set out in law.
In 1998, Michigan passed a version of this model that creates two separate
and distinct roles for the lawyer representing children: attorney and lawyer-
guardian ad litem. Michigan requires the appointment of a lawyer-GAL in
every case and the lawyer-GAL is to represent the best interests of the child.
The statute permits the court to appoint an attorney where the mature child
and lawyer-GAL are in conflict about identification of the child’s interests.
The model prescribes aggressive duties for the lawyer-GAL and provides
for attorney-client privilege. It requires the lawyer-GAL to tell the court the
wishes and preferences of the child even if the lawyer-GAL advocates for a
different view and requires the lawyer-GAL to weigh the child’s wishes in
making the best interests determination according to the age and maturity
of the client. When a lawyer is appointed as “attorney,” however, the attor-
ney owes the same duties of undivided loyalty, confidentiality and zealous
representation of the child’s express wishes as the Attorney would to an adult
client. Some proponents of the Two Distinct Lawyer Role model urge that the
law require appointment of an attorney instead of a lawyer-GAL at a certain
age (unless the child is mentally handicapped), rather than leave attorney
appointment to the discretion of the court.
Pros: Proponents argue that the pure forms of either advocate directed
(“best interests”) or client directed (“expressed wishes”) models are defi-
cient when applied to all children, so that a model which provides clear
lawyer duties depending on the age and maturity of the child better serves
the child client. This model is also well defined by statute and lessens
the tendency toward “relaxed advocacy.” This model also reduces the risk
inherent in the ABA and NACC models that a lawyer appointed as “attor-
ney” would find an exception to (or water down) the duty of aggressive
and client-directed advocacy.
Cons: Critics argue that, at its foundation, this is just an attorney directed
model with most of the shortcomings of model A. 1. above. The appoint-
ment of an attorney GAL is the rule, not the exception, and an attorney
is appointed only in rare circumstances. Also, under rare circumstances
the child could be represented by both an attorney and a lawyer-guardian
ad litem which adds to the cost. The test for appointing one or the other
lawyer roles remains unsettled.
Appendix A. National Association of Counsel for Children 181

Jurisdictions Using the Model: Michigan
Source: MCL 712A.13a(1)(b) (for definition of “attorney”) and MCL
712A.17d (for duties of lawyer-guardian ad litem)


B. CLIENT DIRECTED REPRESENTATION

1. TRADITIONAL ATTORNEY

A traditional attorney functions as a client directed advocate. He/she advo-
cates for the expressed wishes of the client and is bound by the client’s direc-
tives concerning the objectives of representation. The model does not pro-
hibit the attorney from acting in his/her capacity as counselor for the client,
and state ethics codes include the counseling function. Attorneys are not
required, without first counseling their client as to more appropriate options,
to blindly follow directives that are clearly harmful to the client. Further, the
model does not require attorneys to advocate positions not supported by
facts and the law.
Pros: The model is thought to give voice and autonomy to the client and
to empower the child within the system. It allows attorneys to function
in a familiar setting. Proponents believe it produces good outcomes for
children because it encourages independent, zealous advocacy, and the
attorney is not confused by the role or duties.

Cons: Critics charge that the model does not work for young children
who cannot meaningfully direct their litigation or for older children who
may misdirect their litigation.

Jurisdictions Using a Form of This Model Include: Oregon uses a tradi-
tional attorney, but not in all cases. Additionally, a CASA appointment is
required in Oregon. Likewise, in many cases a traditional attorney is used in
Massachusetts, but in conjunction with a Guardian ad Litem.

Sources: Oregon Revised Statutes 419A.170; 419A.012; 419B.195; Ethics
provision 3.3. Mass. Gen. Laws ch. 119, 29; Mass. Ethics Opinion 93-6. ABA
Model Rules of Professional Conduct (Model Rules): Preamble; 1.14(a); ABA
Model Code of Professional Responsibility (Model Code): EC 7-1; EC 7-12.

2. CHILD’S ATTORNEY (ABA STANDARDS MODEL)

The following selected provisions from the ABA Standards of Practice for
Lawyers Who Represent Children in Abuse and Neglect Cases define the model.
“The term ‘child’s attorney’ means a lawyer who provides legal services for a
182 Legal Ethics in Child Custody and Dependency Proceedings

child and who owes the same duties of undivided loyalty, confidentiality, and
competent representation to the child as is due an adult client. The child’s
attorney should elicit the child’s preferences in a developmentally appropriate
manner, advise the child, and provide guidance. The child’s attorney should
represent the child’s expressed preferences and follow the child’s direction
throughout the course of litigation. To the extent that a child cannot express a
preference, the child’s attorney shall make a good faith effort to determine the
child’s wishes and advocate accordingly or request appointment of a guardian
ad litem. To the extent that a child does not or will not express a preference
about particular issues, the child’s attorney should determine and advocate
the child’s legal interests. If the child’s attorney determines that the child’s
expressed preference would be seriously injurious to the child (as opposed
to merely being contrary to the lawyer’s opinion of what would be in the
child’s interests), the lawyer may request appointment of a separate guardian
ad litem and continue to represent the child’s expressed preference, unless
the child’s position is prohibited by law or without any factual foundation.”
Pros: Proponents see the model as the most significant advance in child
representation in many years. They see the model as an evolution from the
GAL model of the 1970s. The model is a detailed roadmap for represen-
tation taking role and duty confusion out of the picture. The model also
discourages relaxed advocacy.
Cons: Critics argue the model still does not work well for young children
and that the directive to resort to representation of the child’s “legal inter-
ests” in some cases is not a meaningful directive. Critics complain that
focusing on the child’s so-called “legal interests” is unsatisfactory because
the legal interests of the child may be unclear or contradictory. For exam-
ple, a child has a legal interest in being protected from abusive or neglectful
parents. The ABA Standards are also criticized for including broad excep-
tions to the client-directed ideal and thus giving the lawyer unfettered and
unreviewed discretion identifying the goals of the child – the same sort
of unbridled discretion that critics complain about in the best interests
substituted judgment model.
Jurisdictions Using a Form of This Model Include: At the time of the prepa-
ration of this document, no jurisdiction had adopted the ABA Standards
as the exclusive system of representation. A number of jurisdictions have
adopted many of the “duties” requirements of the standards (e.g., case inves-
tigation, motion practice) as opposed to the “role” requirements. As to “role”
of counsel, Oregon uses a traditional attorney similar to this model.
Source: ABA Standards of Practice for Lawyers Who Represent Children in
Abuse & Neglect Cases, 1996 American Bar Association, Chicago, IL
Appendix A. National Association of Counsel for Children 183

3. CHILD’S ATTORNEY (ABA/NACC MODEL)

The ABA Standards were adopted by the ABA in 1996. The following year, the
NACC adopted the standards with reservation as to Standard B-4. Standard
B-4 is the critical client direction language of the standards and some mem-
bers of the NACC board believed the ABA Standards gave too much autonomy
to the child client and was unrealistic where young children were concerned.
The ABA Standards (NACC Revised Version), is the NACC’s attempt to achieve
a better balance of client autonomy and protection within standard B-4. This
child’s attorney model places the attorney in the role of traditional attorney
and addresses the needs of the young child through the application of an
objective best interests evaluation in limited situations. The model requires
that the attorney assume the traditional role of zealous advocate and not GAL
to avoid any propensity toward relaxed advocacy. At the same time, it rec-
ognizes that some children are not capable of directing their litigation. The
model allows for a degree of advocate direction so long as it is the exception
to the rule, and based on objective criteria.
The distinction between the ABA Standards and the NACC Revised ABA
Standards is that where the ABA remained consistent with the client directed
attorney throughout, the NACC carved out a significant exception where the
client cannot meaningfully participate in the formulation of his or her posi-
tion. In such cases, the NACC’s version calls for a GAL type judgment using
objective criteria. Additionally, the NACC’s version requires the attorney to
request the appointment of a separate GAL, after unsuccessful attempts at
counseling the child, when the child’s wishes are considered to be seriously
injurious to the child.

Pros: Proponents believe this is the best blending of the traditional attor-
ney and attorney/GAL, providing the best of both options.

Cons: One critic has suggested that, by blending the attorney and GAL
roles, this model dilutes both. The NACC model is also criticized for giving
the lawyer unfettered and unreviewed discretion identifying the goals of
the child – the same sort of unbridled discretion that critics complain
about in the best interests advocate directed model.

Jurisdictions Using a Form of This Model Include: At the time of the prepa-
ration of this document, no jurisdiction had adopted the ABA/NACC Revised
Standards as the exclusive system of representation. A number of jurisdic-
tions have adopted many of the “duties” requirements of the model (e.g.,
case investigation, motion practice) as opposed to the “role” requirements.
As to “role” of counsel, Oregon uses a traditional attorney similar to this
model.
184 Legal Ethics in Child Custody and Dependency Proceedings

Source: ABA Standards of Practice for Lawyers Who Represent Children in
Abuse & Neglect Cases, (NACC Revised Version) NACC Children’s Law Man-
ual Series, 1999 Edition, p. 177.
78 Adoption 2002: The President’s Initiative on Adoption and Foster Care.
Guidelines for Public Policy and State Legislation Governing Permanence for
Children, U.S. Dept. of HHS ACF ACYF Children’s Bureau, 1999, p. VII-21.
appendix b


American Bar Association Standards of
Practice for Lawyers Who Represent Children
in Abuse and Neglect Cases
Defending Liberty, Pursuing Justice
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR
LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES

Approved by the American Bar Association House of Delegates, February 5, 1996



PREFACE

All children subject to court proceedings involving allegations of child abuse
and neglect should have legal representation as long as the court jurisdiction
continues. These Abuse and Neglect Standards are meant to apply when a
lawyer is appointed for a child in any legal action based on: (a) a petition filed
for protection of the child; (b) a request to a court to change legal custody,
visitation, or guardianship based on allegations of child abuse or neglect
based on sufficient cause; or (c) an action to terminate parental rights.
These Standards apply only to lawyers and take the position that although
a lawyer may accept appointment in the dual capacity of a “lawyer/guardian
ad litem,” the lawyer’s primary duty must still be focused on the protection
of the legal rights of the child client. The lawyer/guardian ad litem should
therefore perform all the functions of a “child’s attorney,” except as otherwise
noted.
These Standards build upon the ABA-approved JUVENILE JUSTICE
STANDARDS RELATING TO COUNSEL FOR PRIVATE PARTIES (1979) which
include important directions for lawyers representing children in juve-
nile court matters generally, but do not contain sufficient guidance to aid
lawyers representing children in abuse and neglect cases. These Abuse and
Neglect Standards are also intended to help implement a series of ABA-
approved policy resolutions (in Appendix) on the importance of legal rep-
resentation and the improvement of lawyer practice in child protection
cases.
In support of having lawyers play an active role in child abuse and neglect
cases, in August 1995 the ABA endorsed a set of RESOURCE GUIDELINES:
IMPROVING COURT PRACTICE IN CHILD ABUSE & NEGLECT CASES produced
by the National Council of Juvenile and Family Court Judges. The RESOURCE
GUIDELINES stress the importance of quality representation provided by
competent and diligent lawyers by supporting: 1) the approach of vigorous
187
188 Legal Ethics in Child Custody and Dependency Proceedings

representation of child clients; and 2) the actions that courts should take to
help assure such representation.
These Standards contain two parts. Part I addresses the specific roles and
responsibilities of a lawyer appointed to represent a child in an abuse and
neglect case. Part II provides a set of standards for judicial administrators
and trial judges to assure high quality legal representation.



PART I – STANDARDS FOR THE CHILD’S ATTORNEY


A. DEFINITIONS

A-1. The Child’s Attorney. The term “child’s attorney” means a lawyer who
provides legal services for a child and who owes the same duties of undivided
loyalty, confidentiality, and competent representation to the child as is due
an adult client.

Commentary
These Standards explicitly recognize that the child is a separate individual with
potentially discrete and independent views. To ensure that the child’s indepen-
dent voice is heard, the child’s attorney must advocate the child’s articulated
position. Consequently, the child’s attorney owes traditional duties to the child
as client consistent with ER 1.14(a) of the Model Rules of Professional Conduct.
In all but the exceptional case, such as with a preverbal child, the child’s attor-
ney will maintain this traditional relationship with the child/client. As with
any client, the child’s attorney may counsel against the pursuit of a particular
position sought by the child. The child’s attorney should recognize that the child
may be more susceptible to intimidation and manipulation than some adult
clients. Therefore, the child’s attorney should ensure that the decision the child
ultimately makes reflects his or her actual position.

A-2. 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 interests without being bound by the child’s expressed preferences.

Commentary
In some jurisdictions the lawyer may be appointed as guardian ad litem. These
Standards, however, express a clear preference for the appointment as the
“child’s attorney.” These Standards address the lawyer’s obligations to the child
as client.
Appendix B. Defending Liberty, Pursuing Justice 189

A lawyer appointed as guardian ad litem is almost inevitably expected to
perform legal functions on behalf of the child. Where the local law permits,
the lawyer is expected to act in the dual role of guardian ad litem and lawyer
of record. 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. Moreover, in many states, a
guardian ad litem may be required by statute or custom to perform specific tasks,
such as submitting a report or testifying as a fact or expert witness. These tasks
are not part of functioning as a “lawyer.”
These Standards do not apply to nonlawyers when such persons are appointed
as guardians ad litem or as “court appointed special advocates” (CASA). The
nonlawyer guardian ad litem cannot and should not be expected to perform any
legal functions on behalf of a child.


A-3. Developmentally Appropriate. “Developmentally appropriate” means
that the child’s attorney should ensure the child’s ability to provide client-
based directions by structuring all communications to account for the indi-
vidual child’s age, level of education, cultural context, and degree of language
acquisition.


Commentary
The lawyer has an obligation to explain clearly, precisely, and in terms the client
can understand the meaning and consequences of action. See DAVID A. BINDER &
SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING. A CLIENT-CENTERED
APPROACH (1977). A child client may not understand the legal terminology and
for a variety of reasons may choose a particular course of action without fully
appreciating the implications. With a child the potential for not understanding
may be even greater. Therefore, the child’s attorney has additional obligations
based on the child’s age, level of education, and degree of language acquisition.
There is also the possibility that because of a particular child’s developmental
limitations, the lawyer may not completely understand the child’s responses.
Therefore, the child’s attorney must learn how to ask developmentally appro-
priate questions and how to interpret the child’s responses. See ANNE GRAFFAM
WALKER, HANDBOOK ON QUESTIONING CHILDREN: A LINGUISTIC PERSPECTIVE
(ABA Center on Children and the Law 1994). The child’s attorney may work
with social workers or other professionals to assess a child’s developmental abil-
ities and to facilitate communication.
190 Legal Ethics in Child Custody and Dependency Proceedings

B. GENERAL AUTHORITY AND DUTIES

B-1. Basic Obligations. The child’s attorney should:
1(1) Obtain copies of all pleadings and relevant notices;
2(2) Participate in depositions, negotiations, discovery, pretrial confer-
ences, and hearings;
3(3) Inform other parties and their representatives that he or she is rep-
resenting the child and expects reasonable notification prior to case
conferences, changes of placement, and other changes of circum-
stances affecting the child and the child’s family;
4(4) Attempt to reduce case delays and ensure that the court recognizes
the need to speedily promote permanency for the child;
5(5) Counsel the child concerning the subject matter of the litigation, the
child’s rights, the court system, the proceedings, the lawyer’s role, and
what to expect in the legal process;
6(6) Develop a theory and strategy of the case to implement at hearings,
including factual and legal issues; and
7(7) Identify appropriate family and professional resources for the
child.


Commentary
The child’s attorney should not be merely a fact-finder, but rather, should zeal-
ously advocate a position on behalf of the child. (The same is true for the guardian
ad litem, although the position to be advocated may be different). In further-
ance of that advocacy, the child’s attorney must be adequately prepared prior
to hearings. The lawyer’s presence at and active participation in all hearings is
absolutely critical. See, RESOURCE GUIDELINES, at 23.
Although the child’s position may overlap with the position of one or both
parents, third party caretakers, or a state agency, the child’s attorney should be
prepared to participate fully in any proceedings and not merely defer to the other
parties. Any identity of position should be based on the merits of the position,
and not a mere endorsement of another party’s position.
While subsection (4) recognizes that delays are usually harmful, there may
be some circumstances when delay may be beneficial. Section (7) contemplates
that the child’s attorney will identify counseling, educational and health services,
substance abuse programs for the child and other family members, housing and
other forms of material assistance for which the child may qualify under law. The
lawyer can also identify family members, friends, neighbors, or teachers with
whom the child feels it is important to maintain contact; mentoring programs,
such as Big Brother/Big Sister; recreational opportunities that develop social skills
and self-esteem; educational support programs; and volunteer opportunities
which can enhance a child’s self-esteem.
Appendix B. Defending Liberty, Pursuing Justice 191

B-2. Conflict Situations.
(1) If a lawyer appointed as guardian ad litem determines that there is a con-
flict caused by performing both roles of guardian ad litem and child’s
attorney, the lawyer should continue to perform as the child’s attorney
and withdraw as guardian ad litem. The lawyer should request appoint-
ment of a guardian ad litem without revealing the basis for the request.
(2) If a lawyer is appointed as a “child’s attorney” for siblings, there may also
be a conflict which could require that the lawyer decline representation
or withdraw from representing all of the children.


Commentary
The primary conflict that arises between the two roles is when the child’s
expressed preferences differ from what the lawyer deems to be in the child’s
best interests. As a practical matter, when the lawyer has established a trusting
relationship with the child, most conflicts can be avoided. While the lawyer
should be careful not to apply undue pressure to a child, the lawyer’s advice and
guidance can often persuade the child to change an imprudent position or to
identify alternative choices if the child’s first choice is denied by the court.
The lawyer-client role involves a confidential relationship with privileged
communications, while a guardian ad litem-client role may not be confidential.
Compare Alaska Bar Assoc. Ethics Op. #854 (1985) (lawyer-client privilege does
not apply when the lawyer is appointed to be child’s guardian ad litem) with
Bentley v. Bentley, 448 N.YS. 2d 559 (App. Div. 1982) (communication between
minor children and guardian ad litem in divorce custody case is entitled to
lawyer-client privilege). Because the child has a right to confidentiality and
advocacy of his or her position, the child’s attorney can never abandon this role.
Once a lawyer has a lawyer-client relationship with a minor, he or she cannot and
should not assume any other role for the child, especially as guardian ad litem.
When the roles cannot be reconciled, another person must assume the guardian
ad litem role. See Arizona State Bar Committee on Rules of Professional Conduct,
Opinion No. 86-13 (1986).

B-3. Client Under Disability. The child’s attorney should determine
whether the child is “under a disability” pursuant to the Model Rules of
Professional Conduct or the Model Code of Professional Responsibility
with respect to each issue in which the child is called upon to direct the
representation.

Commentary
These Standards do not accept the idea that children of certain ages are
“impaired,” “disabled,” “incompetent,” or lack capacity to determine their
192 Legal Ethics in Child Custody and Dependency Proceedings

position in litigation. Further, these Standards reject the concept that any dis-
ability must be globally determined.
Rather, disability is contextual, incremental, and may be intermittent. The
child’s ability to contribute to a determination of his or her position is functional,
depending upon the particular position and the circumstances prevailing at the
time the position must be determined. Therefore, a child may be able to determine
some positions in the case but not others. Similarly, a child may be able to direct
the lawyer with respect to a particular issue at one time but not at another. This
Standard relies on empirical knowledge about competencies with respect to both
adults and children. See, e.g., ALLENE. BUCHANAN & DAN W. BROCK, DECIDING
FOR OTHERS. THE ETHICS OF SURROGATE DECISION MAKING 217 (1989).


B-4. Client Preferences. The child’s attorney should elicit the child’s prefer-
ences in a developmentally appropriate manner, advise the child, and provide
guidance. The child’s attorney should represent the child’s expressed prefer-
ences and follow the child’s direction throughout the course of litigation.

Commentary
The lawyer has a duty to explain to the child in a developmentally appropri-
ate way such information as will assist the child in having maximum input in
determination of the particular position at issue. The lawyer should inform the
child of the relevant facts and applicable laws and the ramifications of taking
various positions, which may include the impact of such decisions on other fam-
ily members or on future legal proceedings. The lawyer may express an opinion
concerning the likelihood of the court or other parties accepting particular posi-
tions. The lawyer may inform the child of an expert’s recommendations germane
to the issue.
As in any other lawyer/client relationship, the lawyer may express his or her
assessment of the case, the best position for the child to take, and the reasons
underlying such recommendation. A child, however, may agree with the lawyer
for inappropriate reasons. A lawyer must remain aware of the power dynamics
inherent in adult/child relationships. Therefore, the lawyer needs to understand
what the child knows and what factors are influencing the child’s decision. The
lawyer should attempt to determine from the child’s opinion and reasoning
what factors have been most influential or have been confusing or glided over
by the child when deciding the best time to express his or her assessment of the
case.
Consistent with the rules of confidentiality and with sensitivity to the child’s
privacy, the lawyer should consult with the child’s therapist and other experts and
obtain appropriate records. For example, a child’s therapist may help the child to
understand why an expressed position is dangerous, foolish, or not in the child’s
best interests. The therapist might also assist the lawyer in understanding the
child’s perspective, priorities, and individual needs. Similarly, significant persons
Appendix B. Defending Liberty, Pursuing Justice 193

in the child’s life may educate the lawyer about the child’s needs, priorities, and
previous experiences.
The lawyer for the child has dual fiduciary duties to the child which must be
balanced. On one hand, the lawyer has a duty to ensure that the child client
is given the information necessary to make an informed decision, including
advice and guidance. On the other hand, the lawyer has a duty not to overbear
the will of the child. While the lawyer may attempt to persuade the child to
accept a particular position, the lawyer may not advocate a position contrary
to the child’s expressed position except as provided by these Abuse and Neglect
Standards or the Code of Professional Responsibility.
While the child is entitled to determine the overall objectives to be pursued, the
child’s attorney, as any adult’s lawyer, may make certain decisions with respect to
the manner of achieving those objectives, particularly with respect to procedural
matters. These Abuse and Neglect Standards do not require the lawyer to consult
with the child on matters which would not require consultation with an adult
client. Further, the Standards do not require the child’s attorney to discuss
with the child issues for which it is not feasible to obtain the child’s direction
because of the child’s developmental limitations, as with an infant or preverbal
child.

Commentary
There are circumstances in which a child is unable to express a position, as
in the case of a preverbal child, or may not be capable of understanding the
legal or factual issues involved. Under such circumstances, the child’s attorney
should continue to represent the child’s legal interests and request appointment
of a guardian ad litem. This limitation distinguishes the scope of independent
decision making of the child’s attorney and a person acting as guardian ad litem.

(1) To the extent that a child cannot express a preference, the child’s attor-
ney shall make a good faith effort to determine the child’s wishes and
advocate accordingly or request appointment of a guardian ad litem.
(2) To the extent that a child does not or will not express a preference about
particular issues, the child’s attorney should determine and advocate
the child’s legal interests.

Commentary
The child’s failure to express a position is distinguishable from a directive that the
lawyer not take a position with respect to certain issues. The child may have no
opinion with respect to a particular issue, or may delegate the decision-making
authority. For example, the child may not want to assume the responsibility of
expressing a position because of loyalty conflicts or the desire not to hurt one
of the other parties. The lawyer should clarify with the child whether the child
wants the lawyer to take a position or remain silent with respect to that issue
194 Legal Ethics in Child Custody and Dependency Proceedings

or wants the preference expressed only if the parent or other party is out of the
courtroom. The lawyer is then bound by the child’s directive. The position taken
by the lawyer should not contradict or undermine other issues about which the
child has expressed a preference.

Commentary
One of the most difficult ethical issues for lawyers representing children occurs
when the child is able to express a position and does so, but the lawyer believes
that the position chosen is wholly inappropriate or could result in serious injury
to the child. This is particularly likely to happen with respect to an abused child
whose home is unsafe, but who desires to remain or return home. A child may
desire to live in a dangerous situation because it is all he or she knows, because
of a feeling of blame or of responsibility to take care of the parents, or because of
threats. The child may choose to deal with a known situation rather than risk
the unknown world of a foster home or other out-of-home placement.

(3) If the child’s attorney determines that the child’s expressed preference
would be seriously injurious to the child (as opposed to merely being
contrary to the lawyer’s opinion of what would be in the child’s interests),
the lawyer may request appointment of a separate guardian ad litem and
continue to represent the child’s expressed preference, unless the child’s
position is prohibited by law or without any factual foundation. The
child’s attorney shall not reveal the basis of the request for appointment
of a guardian ad litem which would compromise the child’s position.

In most cases the ethical conflict involved in asserting a position which would
seriously endanger the child, especially by disclosure of privileged information,
can be resolved through the lawyer’s counseling function. If the lawyer has taken
the time to establish rapport with the child and gain that child’s trust, it is
likely that the lawyer will be able to persuade the child to abandon a dangerous
position or at least identify an alternate course.
If the child cannot be persuaded, the lawyer has a duty to safeguard the child’s
interests by requesting appointment of a guardian ad litem, who will be charged
with advocating the child’s best interests without being bound by the child’s
direction. As a practical matter, this may not adequately protect the child if the
danger to the child was revealed only in a confidential disclosure to the lawyer,
because the guardian ad litem may never learn of the disclosed danger.
Confidentiality is abrogated for various professionals by mandatory child
abuse reporting laws. Some states abrogate lawyer-client privilege by man-
dating reports. States which do not abrogate the privilege may permit reports
notwithstanding professional privileges. The policy considerations underlying
abrogation apply to lawyers where there is a substantial danger of serious injury
Appendix B. Defending Liberty, Pursuing Justice 195

or death. Under such circumstances, the lawyer must take the minimum steps
which would be necessary to ensure the child’s safety, respecting and following
the child’s direction to the greatest extent possible consistent with the child’s
safety and ethical rules.
The lawyer may never counsel a client or assist a client in conduct the lawyer
knows is criminal or fraudulent. See ER 1.2(d), Model Rules of Professional
Conduct, DR 7-102(A)(7), Model Code of Professional Responsibility. Further,
existing ethical rules require the lawyer to disclose confidential information
to the extent necessary to prevent the client from committing a criminal act
likely to result in death or substantial bodily harm, see ER 1.6(b), Model Rules
of Professional Conduct, and permit the lawyer to reveal the intention of the
client to commit a crime. See ER 1.6(c), Model Rules of Professional Conduct,
DR 4-10](C)(3), Model Code of Professional Responsibility. While child abuse,
including sexual abuse, are crimes, the child is presumably the victim, rather
than the perpetrator of those crimes. Therefore, disclosure of confidences is
designed to protect the client, rather than to protect a third party from the
client. Where the child is in grave danger of serious injury or death, the child’s
safety must be the paramount concern.
The lawyer is not bound to pursue the client’s objectives through means not
permitted by law and ethical rules. See DR-7-101(A)(1), Model Code of Profes-
sional Responsibility. Further, lawyers may be subject personally to sanctions for
taking positions that are not well grounded in fact and warranted by existing law
or a good faith argument for the extension, modification, or reversal of existing
law.

B-5. Child’s Interests. The determination of the child’s legal interests should
be based on objective criteria as set forth in the law that are related to the
purposes of the proceedings. The criteria should address the child’s specific
needs and preferences, the goal of expeditious resolution of the case so the
child can remain or return home or be placed in a safe, nurturing, and
permanent environment, and the use of the least restrictive or detrimental
alternatives available.

Commentary
A lawyer who is required to determine the child’s interests is functioning in a
nontraditional role by determining the position to be advocated independently
of the client. The lawyer should base the position, however, on objective criteria
concerning the child’s needs and interests, and not merely on the lawyer’s personal
values, philosophies, and experiences. The child’s various needs and interests
may be in conflict and must be weighed against each other. Even nonverbal
children can communicate their needs and interests through their behaviors and
developmental levels. See generally JAMES GARBARINO & FRANCES M. STOTT,
196 Legal Ethics in Child Custody and Dependency Proceedings

WHAT CHILDREN CAN TELL US: ELICITING, INTERPRETING, AND EVALUATING
(1992). The lawyer may seek the
CRITICAL INFORMATION FROM CHILDREN
advice and consultation of experts and other knowledgeable people in both
determining and weighing such needs and interests.
A child’s legal interests may include basic physical and emotional needs, such
as safety, shelter, food, and clothing. Such needs should be assessed in light of the
child’s vulnerability, dependence upon others, available external resources, and
the degree of risk. A child needs family affiliation and stability of placement.
The child’s developmental level, including his or her sense of time, is relevant
to an assessment of need. For example, a very young child may be less able to
tolerate separation from a primary caretaker than an older child, and if sepa-
ration is necessary, more frequent visitation than is ordinarily provided may be
necessary.
In general, a child prefers to live with known people, to continue normal
activities, and to avoid moving. To that end, the child’s attorney should deter-
mine whether relatives, friends, neighbors, or other people known to the child are
appropriate and available as placement resources. The lawyer must determine
the child’s feelings about the proposed caretaker, however, because familiarity
does not automatically confer positive regard. Further, the lawyer may need to
balance competing stability interests, such as living with a relative in another
town versus living in a foster home in the same neighborhood. The individual
child’s needs will influence this balancing task.
In general, a child needs decisions about the custodial environment to be made
quickly. Therefore, if the child must be removed from the home, it is generally
in the child’s best interests to have rehabilitative or reunification services offered
to the family quickly. On the other hand, if it appears that reunification will
be unlikely, it is generally in the child’s best interests to move quickly toward
an alternative permanent plan. Delay and indecision are rarely in a child’s best
interests.
In addition to the general needs and interests of children, individual children
have particular needs, and the lawyer must determine the child client’s individ-
ual needs. There are few rules which apply across the board to all children under
all circumstances.



C. ACTIONS TO BE TAKEN

C-1. Meet With Child. Establishing and maintaining a relationship with a
child is the foundation of representation. Therefore, irrespective of the child’s
age, the child’s attorney should visit with the child prior to court hearings and
when apprised of emergencies or significant events impacting on the
child.
Appendix B. Defending Liberty, Pursuing Justice 197

Commentary
Meeting with the child is important before court hearings and case reviews. In
addition, changes in placement, school suspensions, in-patient hospitalizations,
and other similar changes warrant meeting again with the child. Such in per-
son meetings allow the lawyer to explain to the child what is happening, what
alternatives might be available, and what will happen next. This also allows
the lawyer to assess the child’s circumstances, often leading to a greater under-
standing of the case, which may lead to more creative solutions in the child’s
interest. A lawyer can learn a great deal from meeting with child clients, includ-
ing a preverbal child. See, e.g., JAMES GARBARINO, ET AL., WHAT CHILDREN CAN
TELL US: ELICITING, INTERPRETING, AND EVALUATING CRITICAL INFORMATION
(1992).
FROM CHILDREN


C-2. Investigate. To support the client’s position, the child’s attorney should
conduct thorough, continuing, and independent investigations and discov-
ery which may include, but should not be limited to:

Commentary
Thorough, independent investigation of cases, at every stage of the proceedings,
is a key aspect of providing competent representation to children. See, RESOURCE
GUIDELINES, AT 23. The lawyer may need to use subpoenas or other discovery
or motion procedures to obtain the relevant records, especially those records
which pertain to the other parties. In some jurisdictions the statute or the order
appointing the lawyer for the child includes provision for obtaining certain
records.

(1) Reviewing the child’s social services, psychiatric, psychological, drug
and alcohol, medical, law enforcement, school, and other records rele-
vant to the case;
(2) Reviewing the court files of the child and siblings, case-related records
of the social service agency and other service providers;


Commentary
Another key aspect of representing children is the review of all documents sub-
mitted to the court as well as relevant agency case files and law enforcement
reports. See, RESOURCE GUIDELINES, at 23. Other relevant files that should be
reviewed include those concerning child protective services, developmental dis-
abilities, juvenile delinquency, mental health, and educational agencies. These
records can provide a more complete context for the current problems of the
child and family. Information in the files may suggest additional professionals
198 Legal Ethics in Child Custody and Dependency Proceedings

and lay witnesses who should be contacted and may reveal alternate potential
placements and services.
(3) Contacting lawyers for other parties and nonlawyer guardians ad
litem or court appointed special advocates (CASA) for background
information;

Commentary
The other parties’ lawyers may have information not included in any of the avail-
able records. Further, they can provide information on their respective clients’
perspectives. The CASA is typically charged with performing an independent
factual investigation, getting to know the child, and speaking up to the court
on the child’s “best interests.” Volunteer CASAs may have more time to perform
their functions than the child’s attorney and can often provide a great deal of
information to assist the child’s attorney. Where there appears to be role conflict
or confusion over the involvement of both a child’s attorney and CASA in the same
case, there should be joint efforts to clarify and define mutual responsibilities.
See, RESOURCE GUIDELINES, at 24.
(4) Contacting and meeting with the parents/legal guardians/caretakers of
the child, with permission of their lawyer;

Commentary
Such contact generally should include visiting the home, which will give the
lawyer additional information about the child’s custodial circumstances.
(5) Obtaining necessary authorizations for the release of information;

Commentary
If the relevant statute or order appointing the lawyer for the child does not
provide explicit authorization for the lawyer’s obtaining necessary records, the
lawyer should attempt to obtain authorizations for release of information from
the agency and from the parents, with their lawyer’s consent. Even if it is not
required, an older child should be asked to sign authorizations for release of his
or her own records, because such a request demonstrates the lawyer’s respect for
the client’s authority over information.
(6) Interviewing individuals involved with the child, including school per-
sonnel, child welfare case workers, foster parents and other caretakers,
neighbors, relatives, school personnel, coaches, clergy, mental health
professionals, physicians, law enforcement officers, and other potential
witnesses;
Appendix B. Defending Liberty, Pursuing Justice 199

Commentary
In some jurisdictions the child’s attorney is permitted free access to agency case
workers. In others, contact with the case worker must be arranged through the
agency’s lawyer.

(7) Reviewing relevant photographs, video or audio tapes and other
evidence; and


Commentary
It is essential that the lawyer review the evidence personally, rather than relying
on other parties’ or counsel’s descriptions and characterizations of the evidence.

(8) Attending treatment, placement, administrative hearings, other pro-
ceedings involving legal issues, and school case conferences or staffing
concerning the child as needed.


Commentary
While some courts will not authorize compensation for the child’s attorney to
attend such collateral meetings, such attendance is often very important. The
child’s attorney can present the child’s perspective at such meetings, as well as
gather information necessary to proper representation. In some cases the child’s
attorney can be pivotal in achieving a negotiated settlement of all or some issues.
The child’s attorney may not need to attend collateral meetings if another person
involved in the case, such as a social worker who works the lawyer, can get the
information or present the child’s perspective.

C-3. File Pleadings. The child’s attorney should file petitions, motions,
responses or objections as necessary to represent the child. Relief requested
may include, but is not limited to:
(1) A mental or physical examination of a party or the child;
2(2) A parenting, custody or visitation evaluation;
3(3) An increase, decrease, or termination of contact or visitation;
4(4) Restraining or enjoining a change of placement;
5(5) Contempt for non-compliance with a court order;
6(6) Termination of the parent-child relationship;
7(7) Child support;
8(8) A protective order concerning the child’s privileged communications
or tangible or intangible property;
9(9) Request services for child or family; and
10(10) Dismissal of petitions or motions.
200 Legal Ethics in Child Custody and Dependency Proceedings

Commentary
Filing and arguing necessary motions is an essential part of the role of a child’s
attorney. See, RESOURCE GUIDELINES, at 23. Unless the lawyer is serving in a
role which explicitly precludes the filing of pleadings, the lawyer should file any
appropriate pleadings on behalf of the child, including responses to the pleadings
of the other parties. The filing of such pleadings can ensure that appropriate issues
are properly before the court and can expedite the court’s consideration of issues
important to the child’s interests. In some jurisdictions, guardians ad litem are
not permitted to file pleadings, in which case it should be clear to the lawyer that
he or she is not the “child’s attorney” as defined in these Standards.

C-4. Request Services. Consistent with the child’s wishes, the child’s attor-
ney should seek appropriate services (by court order if necessary) to access
entitlements, to protect the child’s interests and to implement a service plan.
These services may include, but not be limited to:
1(1) Family preservation-related prevention or reunification services;
2(2) Sibling and family visitation;
3(3) Child support;
4(4) Domestic violence prevention, intervention, and treatment;
5(5) Medical and mental health care;
6(6) Drug and alcohol treatment;
7(7) Parenting education;
8(8) Semi-independent and independent living services; 9(9) Long-term
foster care;
10(10) Termination of parental rights action;
11(11) Adoption services;
12(12) Education;
13(13) Recreational or social services; and
14(14) Housing.

Commentary
The lawyer should request appropriate services even if there is no hearing sched-
uled. Such requests may be made to the agency or treatment providers, or if such
informal methods are unsuccessful, the lawyer should file a motion to bring the
matter before the court. In some cases the child’s attorney should file collateral
actions, such as petitions for termination of parental rights, if such an action
would advance the child’s interest and is legally permitted and justified. Different
resources are available in different localities.

C-5. Child With Special Needs. Consistent with the child’s wishes, the child’s
attorney should assure that a child with special needs receives appropriate
Appendix B. Defending Liberty, Pursuing Justice 201

services to address the physical, mental, or developmental disabilities. These
services may include, but should not be limited to:
1(1) Special education and related services;
2(2) Supplemental security income (SSI) to help support needed services;
3(3) Therapeutic foster or group home care; and
4(4) Residential/in-patient and out-patient psychiatric treatment.

Commentary
There are many services available from extra judicial, as well as judicial, sources
for children with special needs. The child’s attorney should be familiar with
these other services and how to assure their availability for the client. See gener-
ally, THOMAS A. JACOBS, CHILDREN & THE LAW: RIGHTS & OBLIGATIONS (1995);
LEGAL RIGHTS OF CHILDREN (2d ed. Donald T. Kramer, ed., 1994).


C-6. Negotiate Settlements. The child’s attorney should participate in set-
tlement negotiations to seek expeditious resolution of the case, keeping in
mind the effect of continuances and delays on the child. The child’s attorney
should use suitable mediation resources.

Commentary
Particularly in contentious cases, the child’s attorney may effectively assist nego-
tiations of the parties and their lawyers by focusing on the needs of the child. If
a parent is legally represented, it is unethical for the child’s attorney to negotiate
with a parent directly without the consent of the parent’s lawyer. Because the
court is likely to resolve at least some parts of the dispute in question based
on the best interests of the child, the child’s attorney is in a pivotal position in
negotiation. Settlement frequently obtains at least short term relief for all parties
involved and is often the best resolution of a case. The child’s attorney, however,
should not become merely a facilitator to the parties’ reaching a negotiated set-
tlement. As developmentally appropriate, the child’s attorney should consult the
child prior to any settlement becoming binding.


D. HEARINGS

D-1. Court Appearances. The child’s attorney should attend all hearings
and participate in all telephone or other conferences with the court unless a
particular hearing involves issues completely unrelated to the child.

D-2. Client Explanation. The child’s attorney should explain to the client,
in a developmentally appropriate manner, what is expected to happen before,
during and after each hearing.
202 Legal Ethics in Child Custody and Dependency Proceedings

D-3. Motions and Objections. The child’s attorney should make appro-
priate motions, including motions in limine and evidentiary objections, to
advance the child’s position at trial or during other hearings. If necessary,
the child’s attorney should file briefs in support of evidentiary issues. Fur-
ther, during all hearings, the child’s attorney should preserve legal issues for
appeal, as appropriate.

D-4. Presentation of Evidence. The child’s attorney should present and
cross examine witnesses, offer exhibits, and provide independent evidence as
necessary.

Commentary
The child’s position may overlap with the positions of one or both parents, third-
party caretakers, or a child protection agency. Nevertheless, the child’s attorney
should be prepared to participate fully in every hearing and not merely defer
to the other parties. Any identity of position should be based on the merits of
the position (consistent with Standard B-6), and not a mere endorsement of
another party’s position.

D-5. Child at Hearing. In most circumstances, the child should be present
at significant court hearings, regardless of whether the child will testify.

Commentary
A child has the right to meaningful participation in the case, which generally
includes the child’s presence at significant court hearings. Further, the child’s
presence underscores for the judge that the child is a real party in interest in the
case. It may be necessary to obtain a court order or writ of habeas corpus ad
testificandum to secure the child’s attendance at the hearing.
A decision to exclude the child from the hearing should be made based on a
particularized determination that the child does not want to attend, is too young
to sit through the hearing, would be severely traumatized by such attendance,
or for other good reason would be better served by nonattendance. There may be
other extraordinary reasons for the child’s non-attendance. The lawyer should
consult the child, therapist, caretaker, or any other knowledgeable person in
determining the effect on the child of being present at the hearing. In some
jurisdictions the court requires an affirmative waiver of the child’s presence if
the child will not attend. Even a child who is too young to sit through the hearing
may benefit from seeing the courtroom and meeting, or at least seeing, the judge
who will be making the decisions. The lawyer should provide the court with
any required notice that the child will be present. Concerns about the child
being exposed to certain parts of the evidence may be addressed by the child’s
Appendix B. Defending Liberty, Pursuing Justice 203

temporary exclusion from the court room during the taking of that evidence,
rather than by excluding the child from the entire hearing.
The lawyer should ensure that the state/custodian meets its obligation to
transport the child to and from the hearing. Similarly, the lawyer should ensure
the presence of someone to accompany the child any time the child is temporarily
absent from the hearing.

D-6. Whether Child Should Testify. The child’s attorney should decide
whether to call the child as a witness. The decision should include consider-
ation of the child’s need or desire to testify, any repercussions of testifying,
the necessity of the child’s direct testimony, the availability of other evidence
or hearsay exceptions which may substitute for direct testimony by the child,
and the child’s developmental ability to provide direct testimony and with-
stand possible cross-examination. Ultimately, the child’s attorney is bound
by the child’s direction concerning testifying.

Commentary
There are no blanket rules regarding a child’s testimony. While testifying is
undoubtedly traumatic for many children, it is therapeutic and empowering
for others. Therefore, the decision about the child’s testifying should be made
individually, based on the circumstances of the individual child and the indi-
vidual case. The child’s therapist, if any, should be consulted both with respect to
the decision itself and assistance with preparation. In the absence of compelling
reasons, a child who has a strong desire to testify should be called to do so. See
ANNM HARALAMBIE, THE CHILD’S LAWYER: A GUIDE TO REPRESENTING CHIL-
ch. 4 (1993). If the
DREN IN CUSTODY, ADOPTION, AND PROTECTION CASES
child should not wish to testify or would be harmed by being forced to testify, the
lawyer should seek a stipulation of the parties not to call the child as a witness
or seek a protective order from the court. If the child is compelled to testify, the
lawyer should seek to minimize the adverse consequences by seeking any appro-
priate accommodations permitted by local law, such as having the testimony
taken informally, in chambers, without presence of the parents. See JOHN E.
B. MYERS, 2 EVIDENCE IN CHILD ABUSE AND NEGLECT CASES ch. 8 (1992). The
child should know whether the in chambers testimony will be shared with others,
such as parents who might be excluded from chambers, before agreeing to this
forum. The lawyer should also prepare the child for the possibility that the judge
may render a decision against the child’s wishes which will not be the child’s
fault.

D-7. Child Witness. The child’s attorney should prepare the child to tes-
tify. This should include familiarizing the child with the courtroom, court
204 Legal Ethics in Child Custody and Dependency Proceedings

procedures, and what to expect during direct and cross examination and
ensuring that testifying will cause minimum harm to the child.

Commentary
The lawyer’s preparation of the child to testify should include attention to the
child’s developmental needs and abilities as well as to accommodations which
should be made by the court and other lawyers. The lawyer should seek any
necessary assistance from the court, including location of the testimony (in
chambers, at a small table etc.), determination of who will be present, and
restrictions on the manner and phrasing of questions posed to the child.
The accuracy of children’s testimony is enhanced when they feel comfortable.
See, generally, Karen Saywitz, Children in Court: Principles of Child Develop-
ment for Judicial Application, in A JUDICIAL PRIMER ON CHILD SEXUAL ABUSE
15 (Josephine Bulkley & Claire Sandt, eds., 1994). Courts have permitted sup-
port persons to be present in the courtroom, sometimes even with the child
sitting on the person’s lap to testify. Because child abuse and neglect cases are
often closed to the public, special permission may be necessary to enable such
persons to be present during hearings. Further, where the rule sequestering wit-
nesses has been invoked, the order of witnesses may need to be changed or an
exemption granted where the support person also will be a witness. The child
should be asked whether he or she would like someone to be present, and if
so, whom the child prefers. Typical support persons include parents, relatives,
therapists, Court Appointed Special Advocates (CASA), social workers, victim
witness advocates, and members of the clergy. For some, presence of the child’s
attorney provides sufficient support.

D-8. Questioning the Child. The child’s attorney should seek to ensure that
questions to the child are phrased in a syntactically and linguistically appro-
priate manner.

Commentary
The phrasing of questions should take into consideration the law and research
regarding children’s testimony, memory, and suggestibility. See generally, Karen
Saywitz, supra D-7; CHILD VICTIMS, CHILD WITNESSES: UNDERSTANDING AND
IMPROVING TESTIMONY (Gail S. Goodman & Bette L. Bottoms, eds. 1993);
ANN HARALAMBIE, 2 HANDLING CHILD CUSTODY, ABUSE, AND ADOPTION CASES
24.09v24.22 (2nd ed. 1993); MYERS, supra D-6, at Vol. 1, ch 2; Ellen Matthews
& Karen Saywitz, Child Victim Witness Manual, 12/1 C.J.E.R.J. 40 (1992).
The information a child gives in interviews and during testimony is often
misleading because the adults have not understood how to ask children develop-
mentally appropriate questions and how to interpret their answers properly. See
Appendix B. Defending Liberty, Pursuing Justice 205

A-3 Commentary. The child’s attorney must become skilled
WALKER, SUPRA,
at recognizing the child’s developmental limitations. It may be appropriate to
present expert testimony on the issue and even to have an expert present dur-
ing a young child’s testimony to point out any developmentally inappropriate
phrasing.

D-9. Challenges to Child’s Testimony/Statements. The child’s competency
to testify, or the reliability of the child’s testimony or out-of-court state-
ments, may be called into question. The child’s attorney should be familiar
with the current law and empirical knowledge about children’s competency,
memory, and suggestibility and, where appropriate, attempt to establish the
competency and reliability of the child.

Commentary
Many jurisdictions have abolished presumptive ages of competency. See
HARALAMBIE, SUPRA D-8 AT 24.17. The jurisdictions which have rejected pre-
sumptive ages for testimonial competency have applied more flexible, case-by-
case analyses. See Louis I. Parley, Representing Children in Custody Litigation,
11 J. AM. ACAD. MA TRIM. LAW. 45, 48 (Winter 1993). Competency to testify
involves the abilities to perceive and relate.
If necessary, the child’s attorney should present expert testimony to establish
competency or reliability or to rehabilitate any impeachment of the child on
those bases. See generally, Karen Saywitz, supra D-8 at 15; CHILD VICTIMS,
SUPRA D-8; Haralambie, supra D-8; J. MYERS, SUPRA D-8; Matthews & Saywitz,
supra D-8.

D-10. Jury Selection. In those states in which a jury trial is possible, the
child’s attorney should participate in jury selection and drafting jury instruc-
tions.

D-11. Conclusion of Hearing. If appropriate, the child’s attorney should
make a closing argument, and provide proposed findings of fact and con-
clusions of law. The child’s attorney should ensure that a written order is
entered.

Commentary
One of the values of having a trained child’s attorney is such a lawyer can often
present creative alternative solutions to the court. Further, the child’s attorney
is able to argue the child’s interests from the child’s perspective, keeping the case
focused on the child’s needs and the effect of various dispositions on the child.
206 Legal Ethics in Child Custody and Dependency Proceedings

D-12. Expanded Scope of Representation. The child’s attorney may request
authority from the court to pursue issues on behalf of the child, adminis-
tratively or judicially, even if those issues do not specifically arise from the
court appointment. For example:
1(1) Child support;
2(2) Delinquency or status offender matters;
3(3) SSI and other public benefits;
4(4) Custody;
5(5) Guardianship;
6(6) Paternity;
7(7) Personal injury;
8(8) School/education issues, especially for a child with disabilities;
9(9) Mental health proceedings;
10(10) Termination of parental rights; and
11(11) Adoption.

Commentary
The child’s interests may be served through proceedings not connected with
the case in which the child’s attorney is participating. In such cases the lawyer
may be able to secure assistance for the child by filing or participating in other
actions. See, e.g., In re Appeal in Pima County Juvenile Action No. S-113432,
872 P.2d 1240 (Ariz. Ct. App. 1994). With an older child or a child with involved
parents, the child’s attorney may not need court authority to pursue other ser-
vices. For instance, federal law allows the parent to control special education.
A Unified Child and Family Court Model would allow for consistency of repre-
sentation between related court proceedings, such as mental health or juvenile
justice.

D-13. Obligations after Disposition. The child’s attorney should seek to
ensure continued representation of the child at all further hearings, includ-
ing at administrative or judicial actions that result in changes to the child’s
placement or services, so long as the court maintains its jurisdiction.

Commentary
Representing a child should reflect the passage of time and the changing needs
of the child. The bulk of the child’s attorney’s work often comes after the initial
hearing, including ongoing permanency planning issues, six month reviews,
case plan reviews, issues of termination, and so forth. The average length of
stay in foster care is over five years in some jurisdictions. Often a child’s case
workers, therapists, other service providers or even placements change while
the case is still pending. Different judges may hear various phases of the case.
The child’s attorney may be the only source of continuity for the child. Such
Appendix B. Defending Liberty, Pursuing Justice 207

continuity not only provides the child with a stable point of contact, but also
may represent the institutional memory of case facts and procedural history for
the agency and court. The child’s attorney should stay in touch with the child,
third party caretakers, case workers, and service providers throughout the term
of appointment to ensure that the child’s needs are met and that the case moves
quickly to an appropriate resolution.
Generally it is preferable for the lawyer to remain involved so long as the case
is pending to enable the child’s interest to be addressed from the child’s per-
spective at all stages. Like the JUVENILE JUSTICE STANDARDS, these ABUSE AND
NEGLECT STANDARDS require ongoing appointment and active representation
as long as the court retains jurisdiction over the child. To the extent that these
are separate proceedings in some jurisdictions, the child’s attorney should seek
reappointment. Where reappointment is not feasible, the child’s attorney should
provide records and information about the case and cooperate with the successor
to ensure continuity of representation.


E. POST HEARING

E-1. Review of Court’s Order. The child’s attorney should review all writ-
ten orders to ensure that they conform with the court’s verbal orders and
statutorily required findings and notices.

E-2. Communicate Order to Child. The child’s attorney should discuss the
order and its consequences with the child.

Commentary
The child is entitled to understand what the court has done and what that means
to the child, at least with respect to those portions of the order that directly affect
the child. Children may assume that orders are final and not subject to change.
Therefore, the lawyer should explain whether the order may be modified at
another hearing, or whether the actions of the parties may affect how the order
is carried out. For example, an order may permit the agency to return the child
to the parent if certain goals are accomplished.

E-3. Implementation. The child’s attorney should monitor the implemen-
tation of the court’s orders and communicate to the responsible agency and,
if necessary, the court, any noncompliance.

Commentary
The lawyer should ensure that services are provided and that the court’s orders are
implemented in a complete and timely fashion. In order to address problems with
implementation, the lawyer should stay in touch with the child, case worker, third
208 Legal Ethics in Child Custody and Dependency Proceedings

party caretakers, and service providers between review hearings. The lawyer
should consider filing any necessary motions, including those for civil or criminal
contempt, to compel implementation. See, RESOURCE GUIDELINES, at 23.


F. APPEAL

F-1. Decision to Appeal. The child’s attorney should consider and discuss
with the child, as developmentally appropriate, the possibility of an appeal. If
after such consultation, the child wishes to appeal the order, and the appeal
has merit, the lawyer should take all steps necessary to perfect the appeal
and seek appropriate temporary orders or extraordinary writs necessary to
protect the interests of the child during the pendency of the appeal.

Commentary
The lawyer should explain to the child not only the legal possibility of an appeal,
but also the ramifications of filing an appeal, including the potential for delaying
implementation of services or placement options. The lawyer should also explain
whether the trial court’s orders will be stayed pending appeal and what the agency
and trial court may do pending a final decision.

F-2. Withdrawal. If the child’s attorney determines that an appeal would be
frivolous or that he or she lacks the necessary experience or expertise to handle
the appeal, the lawyer should notify the court and seek to be discharged or
replaced.

F-3. Participation in Appeal. The child’s attorney should participate in an
appeal filed by another party unless discharged.

Commentary
The child’s attorney should take a position in any appeal filed by the parent,
agency, or other party. In some jurisdictions, the lawyer’s appointment does not
include representation on appeal. If the child’s interests are affected by the issues
raised in the appeal, the lawyer should seek an appointment on appeal or seek
appointment of appellate counsel to represent the child’s position in the appeal.

F-4. Conclusion of Appeal. When the decision is received, the child’s attor-
ney should explain the outcome of the case to the child.

Commentary
As with other court decisions, the lawyer should explain in terms the child can
understand the nature and consequences of the appellate decision. In addition,
Appendix B. Defending Liberty, Pursuing Justice 209

the lawyer should explain whether there are further appellate remedies and what
more, if anything, will be done in the trial court following the decision.

F-5. Cessation of Representation. The child’s attorney should discuss the
end of the legal representation and determine what contacts, if any, the
child’s attorney and the child will continue to have.

Commentary
When the representation ends, the child’s lawyer should explain in a develop-
mentally appropriate manner why the representation is ending and how the child
can obtain assistance in the future should it become necessary. It is important
for there to be closure between the child and the lawyer.


PART II – ENHANCING THE JUDICIAL ROLE
IN CHILD REPRESENTATION


PREFACE

Enhancing the legal representation provided by court-appointed lawyers for
children has long been a special concern of the American Bar Association
(see, e.g., JUVENILE JUSTICE STANDARDS RELATING TO COUNSEL FOR PRI-
VATE PARTIES (1979); ABA Policy Resolutions on Representation of Children
(Appendix). Yet, no matter how carefully a bar association, legislature, or
court defines the duties of lawyers representing children, practice will only
improve if judicial administrators and trial judges play a stronger role in
the selection, training, oversight, and prompt payment of court-appointed
lawyers in child abuse/neglect and child custody/visitation cases.
The importance of the court’s role in helping assure competent represen-
tation of children is noted in the JUVENILE JUSTICE STANDARDS RELATING
TO COURT ORGANIZATION AND ADMINISTRATION (1980) which state in the
Commentary to 3.413 that effective representation of parties is “essential”
and that the presiding judge of a court “might need to use his or her position
to achieve” it. In its RESOURCE GUIDELINES: IMPROVING COURT PRACTICE IN
CHILD ABUSE & NEGLECT CASES (1995), the National Council of Juvenile and
Family Court Judges stated, “Juvenile and family courts should take active
steps to ensure that the parties in child abuse and neglect cases have access
to competent representation. . . . ” In jurisdictions which engage nonlawyers
to represent a child’s interests, the court should ensure they have access to
legal representation.
These Abuse and Neglect Standards, like the RESOURCE GUIDELINES, rec-
ognize that the courts have a great ability to influence positively the quality
210 Legal Ethics in Child Custody and Dependency Proceedings

of counsel through setting judicial prerequisites for lawyer appointments
including requirements for experience and training, imposing sanctions for
violation of standards (such as terminating a lawyer’s appointment to repre-
sent a specific child, denying further appointments, or even fines or referrals
to the state bar committee for professional responsibility). The following
Standards are intended to assist the judiciary in using its authority to accom-
plish the goal of quality representation for all children before the court in
abuse/neglect related proceedings.

G. THE COURT’S ROLE IN STRUCTURING CHILD REPRESENTATION
G-1. Assuring Independence of the Child’s Attorney. The child’s attorney
should be independent from the court, court services, the parties, and the
state.

Commentary
To help assure that the child’s attorney is not compromised in his or her inde-
pendent action, these Standards propose that the child’s lawyer be independent
from other participants in the litigation. “Independence” does not mean that
a lawyer may not receive payment from a court, a government entity (e.g.,
program funding from social services or justice agencies), or even from a par-
ent, relative, or other adult so long as the lawyer retains the full authority for
independent action. For ethical conflict reasons, however, lawyers should never
accept compensation as retained counsel for the child from a parent accused
of abusing or neglecting the child. The child’s attorney should not prejudge the
case. The concept of independence includes being free from prejudice and other
limitations to uncompromised representation.

2.1(d) states that plans for providing counsel for
JUVENILE JUSTICE STANDARD
children “must be designed to guarantee the professional independence of counsel
and the integrity of the lawyer-client relationship.” The Commentary strongly
asserts there is “no justification for . . . judicial preference” to compromise a
lawyer’s relationship with the child client and notes the “willingness of some
judges to direct lawyers’ performance and thereby compromise their indepen-
dence.”

G-2. Establishing Uniform Representation Rules. The administrative office
for the state trial, family, or juvenile court system should cause to be published
and disseminated to all relevant courts a set of uniform, written rules and
procedures for court-appointed lawyers for minor children.

Commentary
Although uniform rules of court to govern the processing of various types of child
related judicial proceedings have become common, it is still rare for those rules
Appendix B. Defending Liberty, Pursuing Justice 211

to address comprehensively the manner and scope of representation for children.
Many lawyers representing children are unclear as to the court’s expectations.
Courts in different communities, or even judges within the same court, may have
differing views regarding the manner of child representation. These Standards
promote statewide uniformity by calling for written publication and distribution
of state rules and procedures for the child’s attorney.


G-3. Enhancing Lawyer Relationships with Other Court Connected Per-
sonnel. Courts that operate or utilize Court Appointed Special Advocate
(CASA) and other nonlawyer guardians ad litem, and courts that administer
nonjudicial foster care review bodies, should assure that these programs and
the individuals performing those roles are trained to understand the role of
the child’s attorney. There needs to be effective coordination of their efforts
with the activities of the child’s attorney, and they need to involve the child’s
attorney in their work. The court should require that reports from agencies
be prepared and presented to the parties in a timely fashion.


Commentary
Many courts now regularly involve nonlawyer advocates for children in various
capacities. Some courts also operate programs that, outside of the courtroom,
review the status of children in foster care or other out-of-home placements. It
is critical that these activities are appropriately linked to the work of the child’s
attorney, and that the court through training, policies, and protocols helps assure
that those performing the nonlegal tasks (1) understand the importance and
elements of the role of the child’s attorney, and (2) work cooperatively with
such lawyers. The court should keep abreast of all the different representatives
involved with the child, the attorney, social worker for government or private
agency, CASA volunteer, guardian ad litem, school mediator, counselors, etc.


H. THE COURT’S ROLE IN APPOINTING THE CHILD’S ATTORNEY

H-1. Timing of Appointments. The child’s attorney should be appointed
immediately after the earliest of:
1(1) The involuntary removal of the child for placement due to allegations
of neglect, abuse, or abandonment;
2(2) The filing of a petition alleging child abuse and neglect, for review of
foster care placement, or for termination of parental rights; or
3(3) Allegations of child maltreatment, based upon sufficient cause, are
made by a party in the context of proceedings that were not originally
initiated by a petition alleging child maltreatment.
212 Legal Ethics in Child Custody and Dependency Proceedings

Commentary
These ABUSE AND NEGLECT STANDARDS take the position that courts must assure
the appointment of a lawyer for a child as soon as practical (ideally, on the day
the court first has jurisdiction over the case, and hopefully, no later than the
next business day). The three situations are described separately because:
1(1) A court may authorize, or otherwise learn of, a child’s removal from
home prior to the time a formal petition is instituted. Lawyer represen-
tation of (and, ideally, contact with) the child prior to the initial court
hearing following removal (which in some cases may be several days) is
important to protect the child’s interests;
2(2) Once a petition has been filed by a government agency (or, where autho-
rized, by a hospital or other agency with child protection responsibilities),
for any reason related to a child’s need for protection, the child should
have prompt access to a lawyer; and
3(3) There are cases (such as custody, visitation, and guardianship disputes

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