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August 1, 2001
Commission on the Legal Needs of Children:

Children should have the right to counsel, too

By Jan Pudlow
Associate Editor

The Florida Bar's Commission on the Legal Needs of Children wants to
hear what kids have to say, so they listened to students at Miami Senior
High School and came away with an earful on everything from body
piercing as self-expression to disdain for curfews.

When the topic turned to when should children have lawyers, 78 percent of
144 students surveyed said "yes" when divorcing parents fight over
custody; 89 percent want their own counsel when their parents are
accused of abuse or neglect; 65 percent want a lawyer if they are being
expelled from school; and 79 percent say kids should have lawyers if
questioned by police or school officers.

"Everyone is speaking of lawyers, but who should pay for these lawyers?"
asked one student, described as "a 28-year-old in a 14-year-old's body,"
by Carlos Martinez, seeming more like a talk-show host than an 11th
Judicial Circuit chief assistant public defender and chair of the
commission's Representation Subcommittee, when he walked with a
microphone among the students and prodded them to speak their minds.

"The government should pay," shouted another child.

"But are we taxpayers? Are we paying?" asked another girl.

"The government spends a lot of money on stupid things, and when
something is necessary,

they make a huge deal about it and don't do anything," tossed out another
student.

"Like finding life in space when we can't even deal with life here," agreed
another girl.

Dealing with life here when it comes to how children are treated in Florida's
legal system is the mission of the commission as it enters its third and
final year. When children should have legal representation and what kind of
representation are key issues being tackled by the commission, chaired
by 11th Judicial Circuit Judge Sandy Karlan. That topic filled much of the
day when the commission met June 21 at the Bar's Annual Meeting in
Orlando, and speakers addressed everything from conflicts in the law to a
status report on pilot projects in Orange and Osceola counties to the
troubling number of youth who are charged with serious crimes but waive
their right to counsel.

University of Florida researchers Lonn Lanza-Kaduce, at the Center for
Studies in Criminology and Law, and Jodi Lane, an assistant professor of
criminology and sociology, shared their findings that juveniles transferred
to adult court are more likely to commit more crimes after age 18 than
counterparts of similar age, race, background and crimes who stayed in
the juvenile system. They also shared preliminary findings on juveniles
transferred to adult court who have no lawyer because they waived their
constitutional right to counsel.

"About five percent of the transfers (to adult court) and about 23 percent of
juvenile retainees with relatively serious offenses had no counsel of
record," Lanza-Kaduce said. "There is a representation issue that might
be important to look into a little more, and it ties in with recidivism. Be
careful. The controls haven't been done. But the preliminary results show
that among the transfers to adult court who didn't have counsel, 70 percent
of them re-offended. And 44 percent of the juvenile justice retainees
re-offended when they didn't have counsel. In both instances, this is the
highest percentage of re-offense. Failure to have counsel or legal
representation is linked, at least at this basic analysis, to higher rates of
recidivism," he continued.

Some commission members were stunned. How can this happen?

"One of the things that surprised some of us when we went to local
courthouses was this little form in the file that said, 'We will appoint
counsel for you, but we could recoup some of these costs against you and
your parents.' I don't know what impact that has on some of the
decision-making processes of whether to waive or not. Some of us came
away from the courthouse wondering what kind of impact that has,"
Lanza-Kaduce said.

The newest member of the commission, Fourth Judicial Circuit Chief
Assistant State Attorney Jay Plotkin, said: "I've been the sole person
making direct-file decisions for eight years in Jacksonville, and there has
never been a person direct-filed who didn't have an attorney. . . .I have a
hard time understanding that."

Another speaker addressed a clash in laws that makes the reports of
guardian ad litems inadmissible hearsay in court and therefore useless to
help judges making important decisions about children's lives.

Robert Merlin, a board certified marital and family lawyer from Coral
Gables, discussed his proposed legislation to amend F.S. § 61.403 (5)
with the following language:

"The guardian ad litem's report and testimony may be considered by the
trial court in its discretion and its admissibility shall not be precluded by
the technical rules of evidence."

The problem, Merlin said, is that a 1998 Second District Court of Appeal
opinion, in Scaringe v. Herrick (711 So.2d 204), ruled that a guardian ad
litem's report containing a statement of a child's wishes is inadmissible
hearsay.

"This flies in the face of F.S. §61.403, which specifically says in
subparagraph five: 'The guardian ad litem shall file a written report which
may include recommendations and a statement of the wishes of the child.
It is impossible for this information to come before the court unless a child
is before the court."

Merlin also is working on a provision for the payment of fees for guardian
ad litems, often the same lawyers appointed over and over who volunteer
their services pro bono.

"As a practical matter, we don't have the kind of resources available to the
trial courts. We have this requirement that lawyers do pro bono work. We
have family lawyers who offer themselves to do this," said Judge Karlan.

"We don't have access to the guardian ad litem program where they train
them. This goes to the whole issue that we've been addressing: Should we
have guardians for the children or should we have lawyers, because you
create double layers? Where is the training coming from? Who's doing it?
So we're kind of hit or miss. This hearsay exception that he is raising is
coming up to be a problem in the family cases, and I suspect it also
applies to the dependency cases. . . .In family court, they may appoint a
guardian, but in dependency court they must. Some of these are real
systemic problems. What we're left with is when you finally do appoint a
guardian because that's all you can get that person should be entitled to
have their report come in. Otherwise, why are we appointing them? What
help can they be to the court?" Karlan said.

Richard C. Milstein, a Miami lawyer on the commission, wants to address
the sticky ethical situation when attorneys are appointed as GALs.

"If I am appointed as a guardian ad litem, do I take off my Florida Bar
credentials when a child who is 15 tells me he is using drugs and will
continue to use drugs? Am I not obligated at that point because I'm an ad
litem, not an attorney to expose that child to criminal prosecution because
of Florida Bar rules? Yet, I am there for the protection of the child because
he is in a custody battle with his parents and may go into Baker Act,"
Milstein said.

"As an ad litem, when a child tells you something and you get deposed,
do you have to disclose it? Absolutely. There's no confidentiality privilege.
. . I think we really need an in-depth study of the ad litem issue."

One real-life study of guardian ad litems and attorney ad litems is currently
being played out in the Ninth Judicial Circuit with a legislature-funded pilot
project.

Gerard Glynn, director of clinical programs at Barry University law school,
talked about Barry's role in doing the attorney ad litem piece of the pilot
project in both counties. In Osceola, the guardian ad litems are a
traditional staff-run program. In Orange, the GAL program is unique in the
state in that it is an attorney guardian ad litem.

Even though the legislation restricts the attorney ad litem representation to
dependency court, Glynn said, the judges have expanded their
representation, with court approval, such as in school discipline and
special education matters.

"In your interim report, one of the things you've said is that children need
to be heard. I believe that was one thing listed as an overwhelming
consensus of this committee. And if we do nothing else, I think the
attorney ad litem project is allowing children to be heard," Glynn said.

Children are treated as clients, informed about the process every step of
the way, he added.

"These children's lives have been horribly disrupted because of the actions
of their families, and, unfortunately, too often because of the actions of
some of us in the system. And they have important things to say and they
have incredibly creative solutions to come up with if people would listen,"
Glynn said.

One of the big questions the commission is addressing is whether every
child in dependency court should get an attorney. "I'll leave that for you all
to decide," Glynn said. "I actually like the model that is set up in the Ninth
Circuit. We're not appointed to every child. We're appointed only to those
children in which the juvenile court finds it necessary for them to have an
attorney."

Commission member Frank Orlando, director of the Youth Policy Center
at Nova Southeastern University, asked: "Who defines 'necessary?'"

"There is no definition," Glynn answered. "We are representing a very
small portion of the children in the dependency system, there's no
question about that. I would love for every child to have an attorney. My
position is that it may be unrealistic for us to get funding, and then one
must decide how to do it. Because if we're going to have fewer lawyers, I
would prefer that they not have the large caseload. . . . The 'necessary' is
defined by each of the six juvenile judges in the Ninth Judicial Circuit."

Chris Andriacchi, senior attorney at the Osceola GAL program, said, "I
don't know of any other guardian ad litem program that has 100 percent
representation of children. We now have that, because of the pilot project.
By that, I mean they are not only represented by somebody, they are
represented in court by an attorney at every legal event and not just in
court," as well as assigned a professional guardian.

"It's nice to have volunteers do it, but why do the children not deserve the
same things the parents get in court? " Ancriacchi asked.

"How come we have to go through all this to get a professional social
worker, a guardian ad litem for each child, with an attorney present at
every step? This is the first time this has happened in the state of Florida.
What is the excuse for that?"

[Revised: 10-23-2014]