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Concerns raised over how best to provide representation to kids

Senior Editor Regular News

Concerns raised over how best to provide representation to kids

Senior Editor

The Legal Needs of Children Committee searched for common ground on how best to provide lawyers for children in dependency court — while not harming the statewide Guardian ad Litem Program.

Diverse committee members — leadership at the Department of Children and Families, the head of the GAL Program, judges, legal aid representatives, and private attorneys — unanimously passed a resolution of agreed-upon concepts to guide the way toward crafting proposed legislation they hope will become a Florida Bar lobbying position in the 2010 Florida Legislature.

“For it not to come together would be a shame,” Bar President Jesse Diner urged the committee at the Bar’s General Meeting in Tampa September 10. “If we all care about doing the right thing, then we can find a way to come together and make this work.”

First, the group must allay the fears of GAL Executive Director Theresa Flury that giving children lawyers in dependency court will not take funding or independence away from her office that is struggling from the loss of $5 million over the past two years.

Secondly, the committee must reconcile what Diner called “legitimate concerns” raised by the Family Law Section about not creating a new bureaucracy and not violating separation of powers that would take the management of lawyers out of the hands of the judiciary and the self-regulating Florida Bar.

“If we can achieve real consensus with the Family Law Section, then we have a real shot at getting the funding necessary to advance the issue of representation of children in the state of Florida,” said committee Chair Howard Talenfeld.

Skeptics also include the Florida Council of Juvenile and Family Court Judges. In a September 3 letter to Diner, FCJFCJ President and 20th Circuit Judge James Seals wrote: “In a world of unlimited resources a lawyer for every indigent party in dependency court sounds like a worthy aspiration. In the real world a lawyer for every child is imprudent from a fiscal standpoint, unnecessary from a genuine need standpoint, and time-burdensome from a case management standpoint.”

Diner said the judges’ group will have a chance to plead their case before the Bar Board of Governors. In the short-term, he urged the Family Law Section and the Legal Needs of Children Committee to form a subcommittee and immediately start ironing out concerns. That was achieved before the meeting ended, when Elisha Roy, chair of the Family Law Section Legislative Committee, ran over to the section meeting to get approval and enlist volunteers to serve on the new subcommittee.

Time is of the essence, as Diner had hoped to present the proposed legislation to the Board of Governors at its September 25 meeting in Hollywood. With so much work remaining, that step proved impossible, so Diner set the deadline for October 15 to receive the proposed legislation that Diner hopes to present to the Board of Governors at its December 11 meeting in Amelia Island. Anything later than that, Diner said, is too late for the Bar to approve as an official position to lobby the Legislature in 2010.

With the deadline looming to reach consensus, 11th Circuit Judge Sandy Karlan, who chaired the predecessor Legal Needs of Children Commission, relaxed her top priority to create a Statewide Office of the Children’s Advocate that would oversee both legal attorney-client and guardian ad litem representation to children in court.

“What is important is not the vehicle through which the representation is delivered. What is important is the representation for children, that there is the appointment of lawyers for children,” Karlan said. “As much as I have always been a huge advocate of the Office of the Children’s Advocate, so that we can all work together, and all be together, the house in which this occurs is not as important as that we make sure that the children’s legal needs are being met.”

Judge Karlan’s remarks over the speaker phone from Miami were pivotal in setting the tone of the committee’s deliberations to help the group speak as one voice, Talenfeld said.

“What Judge Karlan recognized was the importance of reaching consensus, regardless of the shape of that office. What counts is the fact that kids receive legal representation in the specified categories of the resolution,” Talenfeld said.

(Read the resolution that lists circumstances when attorneys would be appointed for children at )

“It’s so critical that the Guardian ad Litem Program, which has been the primary source of protecting children in dependency cases, is on board with this bill. Without the Guardian ad Litem Program being supportive, I am sure our chances of success would decrease dramatically,” Talenfeld said.

While Flury voted in favor of passing the resolution, the head of the GAL Program told the News she really voted for it because it is “a wish list that is nonbinding. How can you object to just trying?”

But Flury maintains she is not in favor of the proposed legislation.

“My first priority, my most important priority, is the best interest of these children and the Guardian ad Litem Program. It is impossible to comment on legislation not drafted. But trying to be realistic, the funding has me greatly concerned, because we’ve lost $5 million over the last two years and I need to concentrate on getting some of that back,” Flury said.

“I would never be opposed to additional representation for children, but philosophically my priority is the best interest of children, as opposed to children having their own attorneys, when funding is an issue.”

Talenfeld said he understands Flury’s concerns. Since the commission’s final report in 2002 — with the No. 1 priority advocating for the creation of the Statewide Office of the Children’s Advocate — the GAL Program was moved from the Office of the State Courts Administrator and became an independent office with better funding that reaches more abused and neglected children.

“We have to realize that in these economic times, those folks have feared we are just going to take some marbles and move it from one side of the budget to the other, so there will be less guardians and more lawyers,” Talenfeld said.”

“But in the end, the concern has got to be, we need more guardians and we need more lawyers. We’ve got to recognize that children aren’t going to win by moving the scarce resources that are already appropriated for the GAL for lawyers. They are going to profit if we have additional resources, where we are having kids represented in these defined circumstances.”

Asked about the realities of the down economy and the tight-fisted Legislature, Miami lawyer Alan Mishael, who helped craft the resolution, responded: “Studies show that the representation of children in dependency cases, for instance, actually saves money in the long run by shortening the time children stay in foster care — either getting them back to their families or getting them into adoptive homes, which not only promotes their mental and physical health, but cuts down on the cost of the taxpayer in funding the foster care system.”

Mishael, who represents foster and adoptive parents, said: “The effort to create a statutory right to counsel has been in progress for about 20 years in this state — since the court held that there is no constitutional right for counsel for kids in dependency cases. This is a statutory response to a long struggle to create a statutory right to counsel, recognizing that the work of volunteer guardians ad litem from the community is irreplaceable, but that under certain circumstances, the children absolutely need an attorney. They cannot rely on the kindness of strangers and volunteers to make sure their legal rights are enforced.

“We all claim to support equal access to justice, but funding the representation of children is where the rubber meets the road.”

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