Children deserve independent representation
By Jan Pudlow
What kind of representation do children deserve? Lawyers, guardians ad litem, a combination? And what kinds of cases should trigger mandatory representation so that children no longer get lost in the court system without a voice?
Just three months ago, those contentious issues had sharply divided members of The Florida Bar Commission on the Legal Needs of Children’s Representation Subcommittee, comprised of a feisty cross-section that includes a public defender, social worker and head of a large guardian ad litem program, legal aid lawyer, family law attorneys, and judges.
But at the Bar Midyear Meeting in Miami, on January 11, that divide was bridged by a compromise unanimously passed by the full commission. The commission met only three days after the Senate Judiciary Committee also debated how to better provide legal representation for children in court.
“Everyone’s major concerns were addressed. It is a compromise. We cut the baby in half,” said a relieved and smiling Carlos Martinez, chair of the Representation Subcommittee and an assistant public defender in the 11th Judicial Circuit.
One of their recommendations is to create a statewide Office of the Children’s Advocate that would fall under the oversight and budget of the Justice Administration Commission, as are the public defender and state attorney offices. The idea is to better assure independence by avoiding the conflict of interest when the very judge who appoints a guardian ad litem or legal counsel for the child also supervises those court personnel.
That idea is similar to a proposal for an Office of Public Advocacy spelled out in a 47-page report of an interim project of the Senate Judiciary Committee, chaired by Sen. Locke Burt, R-Ormond Beach. The Senate Judiciary Committee is scheduled to take up a reworded committee bill on January 23, after this News went to press.
Commission Chair and 11th Circuit Judge Sandy Karlan praised the Representation Subcommittee for its recommendations, saying, “A tremendous amount of work went a long, long way to meld everyone’s interests on behalf of the representation of children.”
(The commission continues its work in reaching consensus on the Treatment and Services Subcommittee and the Confidentiality Subcommittee.)
Bar President Terry Russell told the commission: “We’re so proud of you. You’re probably doing the most important work The Florida Bar is doing today. . . . I can’t think of anything that is more important than trying to get our arms around and understand the legal, physical, and emotional needs of our children and where and how we can better serve them as lawyers and as a profession. Probably more than any time in Florida history that I can recall, the legal system, the judiciary, and the profession are under such steady and determined attack. To be able to proudly hold up the work of this commission is a great accomplishment for us all.”
One factor driving the issue of legal representation of children is a funding shift with constitutional Amendment 7, passed by voters in 1998, that mandates the state pick up a larger portion of trial courts’ expenses. The Florida Supreme Court has said the Guardian Ad Litem Program, which uses 4,500 volunteers to help carry out its duties statewide, needs to be moved from the trial courts to somewhere else, but it hasn’t taken a position on where that new home should be.
Unlike the original Senate proposal, however, the Bar’s position is to keep the public defender as it is now — representing children in delinquency cases. But the recommendations encourage better communication with other lawyers or guardians representing the child who may also be involved in other court proceedings to make sure there aren’t conflicting court orders or unnecessary duplication of services.
“The Senate bill does things we’re talking about,” said Ninth Judicial Circuit Judge Daniel Dawson. “The Senate Judiciary Committee has concerns of the conflict of putting the guardian ad litem and legal counsel in the same organization. Putting everything under one umbrella is turning into a nightmare. . . .The court shouldn’t appoint and have control of who the attorney is.”
Joni Goodman, director of the 11th Circuit’s Guardian Ad Litem Program, said: “We thought if the Office of the Children’s Advocate contracts with local legal aid offices and with universities for the legal counsel function, it would address the conflict issue. If it does not, we need to address it.”
The Guardian Ad Litem and Legal Counsel would be two divisions under the newly created Office of the Children’s Advocate, according to the Bar commission’s model. And Martinez stressed that the statewide office would have oversight functions, with decisions on individual cases handled separately at the circuit level.
“What really is important is that there is a place where information and standards are available on a statewide basis,” said Florida Supreme Court Justice Barbara Pariente. “This type of coordinated view is critical. The endorsement by this commission of a coordinated, independent entity is the most important thing.”
Rather than dictating what type of representation children should have in other areas of court — including child abuse, neglect, and termination of parental rights in dependency court; adoption in family court; or when the child is a victim or witness in criminal court — the Bar commission recommends: “When appropriate, and at the court’s discretion, children should have a guardian ad litem and/or legal counsel appear and participate in court proceedings whenever their interests may be at state.”
“The GAL Division shall be funded and staffed so that every child in Chapter 39 proceedings would have a guardian ad litem assigned, whether staff GAL or volunteer GAL,” the commission recommends.
“The GAL Division shall also have sufficient legal staff to be present at all legal proceedings, where any other party would be represented by legal counsel, including depositions and appeals, unless the court has appointed the Legal Counsel Division or other independent legal counsel, and the court has made a finding that a GAL is unnecessary to protect the best interests of the child.”
The commission recommends that children be afforded GAL and/or Legal Counsel representation in an array of proceedings, including CINS/FINS (children and families in need of services); entitlement to special education and related services; probate or inheritance where a child has a financial stake in the outcome; and permanent injunction for domestic violence where the child is the victim or the accused perpetrator.
Another section of the commission subcommittee’s report lists when legal counsel shall be appointed to represent the child’s legal interest. That includes all termination of parental rights cases “unless the court determines that the legal interests of the child are otherwise being protected;” and anytime the child’s liberty interests are at stake in CINS/FINS cases.
The major issue the Representation Subcommittee dealt with is lack of funding, Martinez reported to the full commission.
“It hurts children and Florida loses millions of dollars a year in federal funding,” he said.
The very first sentence of the Representation Subcommittee’s report states: “In order to secure the fundamental rights of children to physical and emotional well-being and safety, and to protect children’s legal interests, constitutional and statutory rights, Florida should fully fund independent advocacy that includes the availability of guardians ad litem and legal counsel for children in certain legal and administrative proceedings as recommended herein.”
As Martinez told the full commission: “The main thing is funding, but let’s deal with the things we can get through, and that is the independence of the representation and developing standards” for quality representation.
Thirdly, Martinez said, his subcommittee was “trying to deal with circumstances where we see gaps in Florida law where children should have representation.”
The subcommittee views representation of children “as a three-legged stool: the guardian ad litem, legal counsel, and the public defender for delinquency,” Martinez said.
Keeping the public defender for delinquency cases separate from the proposed Office of Public Advocacy was on the minds of several senators when the Senate Judiciary Committee met to discuss its interim project on legal representation of children January 8.
Sixth Judicial Circuit Public Bob Dillinger testified against lumping the services of the public defender in delinquency cases into one bureaucracy with guardians and lawyers for children in dependency and other non-criminal matters.
“What’s in the best interest of the child may not be in the legal interest of the child,” Dillinger told the Senate Judiciary Committee.
Dillinger offered this common example: A child is arrested for cocaine possession. The legal interest of the child is for his public defender to challenge whether the cop had the legal right to search his underage client. What is in the child’s best interest, on the other hand, is acknowledging the child is addicted to cocaine and needs treatment.
The first struggle for the Senate Judiciary Committee, as Burt put it, is to decide “whether or not to create a new office when we are laying off existing employees and have no money in the budget.”
Dorothy Johnson, staff director of the Senate Judiciary Committee, reiterated the rationale for creating one Office of Public Advocacy: “Currently, there are 21 guardian ad litem offices in the state, directed by the chief judge of each circuit. There is mixed representation, with no clear, consistent supervision of those programs. Now, with children in dependency and delinquency courts, there is no clear coordination of representation in the two systems.”
Furthermore, because judges supervise the employees who are representing children in court, “it puts pressure on attorneys not to disagree with the judge,” she said.
Via video-conferencing from the Children First Project at Nova Southeastern University, surrounded by her law students, Chris Zawisza testified: “I think it is imperative to create such an office for representing children in dependency, family law, and other civil issues.”
She agreed with the Bar committee’s position that it would be best to leave the public defender’s function in delinquency cases where it is because of the clash between the child’s right to be defended in an adversarial process vs. the best interest of the child.
A central oversight agency could “encourage the greatest flexibility for circuits” to carry out representation of children that best fits their circuit’s needs.
Because there is no national model, Zawisza said, there is a need for Florida to test various models to see what works best.
To bolster the argument that the status quo definitely is not working in Florida, Zawisza reminded the Senate Judiciary Committee of these disturbing facts:
• 10 percent of children have suffered confirmed maltreatment while in foster care, which is more than 17 times the accepted national standard. Children in foster care are five times more likely to be abused or neglected than the general population.
• 42 percent of children in foster care live in facilities that exceed their capacity; and 12 percent of foster homes had 10 or more children.
• Caseworkers had monthly face-to-face visits with the child in placement in only 29 percent of cases.
• 14 percent of foster children have had four or more placements.
• 20 percent of foster children move more than two times a year.
• 57 percent of foster children are not placed with their siblings, and in only 52 percent of cases were foster children allowed to visit their siblings.
• In 2000, the average length of stay for a child in foster care was more than three years — more than three times the national standard.
Ultimately, she said, better representation and coordination of representation for children will save the state money, because it will help get children in permanent homes quicker. The longer children languish in foster care, she said, the more likely they are to wind up committing crimes and going to the delinquency system or needing rehabilitative services.
How far lawmakers are willing to go in assuring children have a voice in court is still up for grabs.
Sen. Skip Campbell, D-Tamarac, said: “I personally feel that every child should have an attorney. I believe the guardian ad litem has benefits, but it doesn’t go far enough to make sure kids are protected. . . . If we’re going to fix a problem, let’s fix it. Representation for kids now is a mishmash. Let’s throw it away and rebuild it.”
But Sen. Jim Sebesta, R-St. Petersburg, suggested: “Let’s look at programs that are working well and do it that way. Let’s do it correctly in the confines of a shrinking state budget.”
Johnson, the Senate Judiciary staff director, said she looked at programs throughout the state and the country.
“Attorneys think every child needs an attorney. And the guardians ad litem think no child needs an attorney,” Johnson said.
The best compromise, she said, is to have a guardian ad litem and attorney team to represent the children.
“Do we need a whole new state office to do that?” Sebesta asked.
“Yes,” Johnson answered. “To address the conflict where employees stand before the court that supervise them.”
After more discussion, Campbell said, “I have a feeling this committee can support the bill if it’s limited to dependency. . . . I would ask that we go forward with an eye on the dependency side.”
Burt said: “Maybe we can put language in the bill that will mandate creating better coordination between the public defender and this new office. . . .Where I sense we’re at is an uncomfortable feeling creating something new, rather than reorganizing what we have."