Resolution of the Legal Needs of Children Committee – September 10, 2009
Resolution of the Legal Needs of Children Committee – September 10, 2009
WHEREAS, the Legislature has historically agreed with the Governor’s Blue Ribbon Task Force that in dependency proceedings under chapter 39, the guardian ad litem volunteer is an indispensable intermediary between the child and the court, and between the child and DCF, and that if there is any program that costs the least and benefits the most, it is the Guardian Ad Litem Program,
WHEREAS, since the creation in 1999 of the Commission on the Legal Needs of Children under the leadership of Judge Sandy Karlan, a realization has also developed among Floridians concerned with promoting the welfare of the State’s children that under some circumstances in which the protection of children may require more than appointment of a lay volunteer guardian ad litem, it is necessary that children receive legal representation and that the State has a moral obligation to affirmatively support funding of that representation;
WHEREAS, it is the LNOCC’s consensus that so long as appropriations of the Statewide Guardian Program remain at least at parity with historical funding levels, mandatory funding of legal representation should be provided, without affecting current law regarding the appointment of guardians ad litem,
in all of the following situations:
1. Where an older child in a dependency proceeding disagrees with the guardian ad litem’s view of what is in his best interest,
2. Where any child in a dependency proceeding has been continuously in out-of-home care, as measured from initial entry into shelter care, for more than one year, and
(A) where DCF has not filed a termination of parental rights petition for that child or when parental rights have been terminated but the child has been in out-of-home care, as measured from initial entry into shelter care, for more than 18 months, and there has been a termination of parental rights petition filed, and
(B) the child has not been either returned to the custody of his or her parents or has been placed pursuant to section 39.621,
3. Where a child is at least 17 years of age in out-of-home care who is determined by the court to reasonably require legal representation in seeking assistance from the government, including as an adult, pursuant to section 39.013(2),
4. Where the child is the subject of a proceeding in which the state is seeking the commitment or placement of the child for longer than 24 hours to a secure residential treatment facility, including licensed care under chapters 394 and 395 or residential group care,
5. Where the child is the subject of a proceeding in which the state is seeking to administer psychotropic medication,
6. Where an older child has been removed from a stable out-of-home placement of six months or longer duration and is the only party objecting to the change of placement, and the only party seeking to obtain appellate review thereof,
7. Where
(A) the court determines in its discretion that counsel should be appointed, or
(B) following compulsory review of each case at the time either adoption is first approved as the permanency goal, or a termination of parental rights petition has been filed, it is determined by the representation unit, under the direction of an attorney, that the appointment of counsel for the child, in addition to a guardian ad litem, is necessary to protect the child’s interests based on the particular circumstances of the case, and that , consistent with funding priorities , that counsel should therefore be appointed, and the court grants the request that counsel be appointed,
8. In an adoption case where the court finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex legal issues involved in the case,
9. In cases under (a) section 731.303 (estates and trust proceedings), (b) section 742.031 (paternity proceedings), and (c) administrative appeals under section 393.125 involving children with developmental disabilities or who may be eligible for such services, where the court or hearing officer finds that the child’s legal interests are not being adequately protected, if the child requires legal advocacy, or if there are complex issues involved in the case,
10. In domestic violence proceedings under section 741.2902, where the court exercises its discretion to appoint counsel for a child who is a victim or accused perpetrator of domestic violence when a permanent injunction is sought,
11. In proceedings under section 914.17 where the court exercises its discretion to appoint counsel to represent a minor in a criminal proceeding if the minor is a victim of, or a witness to child abuse or neglect, of if the minor is a victim of a sexual offense or a witness to a sexual offense committed against a minor.
12. In cases under section 984.17 (children and families in need of services proceedings), where the court determines that the child’s liberty interests are at stake and that counsel should be appointed.
13. In delinquency proceedings under section 985.033, where in addition to the existing right to counsel, in those situations where the child has not waived counsel for court proceedings, and where in the court’s discretion it appoints counsel in school matters, including disciplinary actions and issues relating to Exceptional Student Education,
WHEREAS, at the same time the Family Law Section of The Florida Bar and other important stakeholders, including many juvenile judges, legislators and the Statewide Guardian Ad Litem Program, have endorsed the LNOCC’s core objective of assuring legal representation to these children, a number of significant and as yet unresolved concerns have been raised as to the precise vehicle for ethically, constitutionally and economically meeting that objective, without at the same time chilling existing local and private funding of comparable programs;
BE IT THEREFORE RESOLVED THAT:
1. The LNOCC emphatically supports and endorses the provision of compensated and mandatory representation of Children as itemized above,
2. The legislative approach must meet all Florida Bar ethical, constitutional and economic imperatives, and without prejudice to the existing recurring and non-recurring funding of the Statewide Guardian Ad Litem Program,
3. The LNOCC recognizes that different stakeholders, including LNOCC Members, will have different views on how to implement the provision of compensated and mandatory representation of Children as itemized above, and that the LNOCC will work toward the ultimate goal of proposing and supporting legislation best formulated to enhance the likelihood of passage during the forthcoming legislative session, with the understanding that by supporting this Resolution, no LNOCC Member shall be bound to support any particular legislative proposal ultimately promoted by the LNOCC.
4. A joint committee of the LNOCC and the Family Law Section of The Florida Bar be appointed to prepare proposed legislation consistent with this resolution no later than October 15, 2009, for further consideration by the LNOCC.
