The Florida Bar

Florida Bar News

Panel says kids have a right to an attorney

Senior Editor Regular News

Panel says kids have a right to an attorney

Legal Needs of Children Committee supports legislation to provide children in dependency court with lawyers

Senior Editor

“When the state takes a child out of their home and into state custody, it seems to me that every single child that is the main focus of such a process is entitled to a lawyer to represent their rights against the state,” Rosemary Barkett, U.S. 11th Circuit Court of Appeals judge, told members of The Florida Bar Legal Needs of Children Committee.

“Amen!” shouted a voice on the conference call November 16.

Within an hour, the committee voted 27 to 5 to adopt yet another incarnation of proposed legislation —this time with bold language declaring “no child shall be denied the right to be represented by his or her own attorney at all stages” of dependency proceedings and must be informed of their right to have their own attorney.

Howard Talenfeld “A clear signal came through loud and clear that the overwhelming consensus of this committee is that children in a dependency courtroom need lawyers,” said Howard Talenfeld, chair of the Legal Needs of Children Committee, shortly after the conference call.

The next step is presenting the proposed bill — that also has the support of the Public Interest Law Section — to the Legislation Committee and the Board of Governors meeting December 11 in Amelia Island, so that the Bar may approve it as an official position to lobby the Legislature in 2010.

Bar President Jesse Diner is a strong ally of the proposed legislation, Talenfeld said, and didn’t want to see children’s rights to attorney representation watered down amid all the wrangling over clashing positions.

“As we were whittling away categories of representation and weakening the bill to try to achieve 100 percent consensus, Jesse Diner made it very clear to me that my charge was to make sure this legislation was meaningful representation for children. He instructed me he does not want a band-aid,” Talenfeld said.

Working toward consensus, Talenfeld said, has been “very contentious” and a “long road on a 10-year mission,” that began with the creation of the predecessor 1999-2002 Legal Needs of Children Commission, chaired by 11th Circuit Judge Sandy Karlan.

“It would be a real accomplishment, if after all this time, we would be able to provide this right for children that should have been in the books already. I am thrilled and I hope this committee passes it,” Judge Karlan said after Barkett’s rousing comments.

Judge Barkett — a former Florida Supreme Court justice who serves on the board of directors of Lawyers for Children America that supports pro bono attorneys representing children in dependency court — is not a member of the Bar committee and apologized “for coming in as a sort of a Johnny-go-lately.”

But she ignited the committee with a little speech about “improving the lot of children and families in our court system” and a lawyer’s duty to protect due process.

“If you do not protect due process, you don’t have anything else to protect. We cannot leave it to benevolent dictatorship,” Barkett said.

“Don’t get offended by this, but a dictatorship is easier, more comfortable, and more efficient. Having a lawyer challenge your authority, question your decision, hear what you do, is not a pleasant thing. But that is the system that we have, as long as juvenile dependency proceedings are in a court of law.. . .

“I am not always right, including in this thing. Except that I do believe in my whole heart the concept of letting a lawyer represent a child is one of the core values of our society.. . . My urging, my begging, is that we do something for once that recognizes the unalienable right of every litigant to appear in court with a lawyer, if they so choose.”

While everyone on the committee expressed passion for doing the right thing for abused and neglected children, conflicting philosophies and funding-shortage fears combined to drive a wedge between children’s advocates who have been working on the issue for years.

“I will tell you it has been a very difficult experience for me as chair,” Talenfeld said. “I don’t think anyone has been satisfied with any work product at any time.”

Barkett, too, said she is not happy with parts of the bill that outline certain critical categories prioritizing when the government should pay for lawyers for children — such as when there has been termination of parental rights and the child has been in shelter care for more than 18 months.

“I’ve had people on one side yelling at me that I caved in with these categories,” Barkett said. “I think this is a good starting point. It is a great starting point to bring to The Florida Bar Board of Governors.”

Miami Beach lawyer Alan Mishael, who has been working on many versions of the proposed legislation since the spring, admitted, “I think I have antagonized a fair number of people.”

On this critical day of voting, Mishael said: “I am fully in support of this existing bill. It’s not perfect, but we cannot allow the perfect to be the enemy of the good.”

Even though the committee had passed draft legislation in March, Talenfeld opened up the discussion again to bring the new Guardian ad Litem director and other new members of the committee into the process.

“We found out we opened up Pandora’s Box,” said Talenfeld, who recounted how the committee took into consideration valid concerns from the Family Law Section about funding and separation of powers issues, and from the Florida Council of Juvenile and Family Court Judges, who expressed concern both about hurting GAL funding and making appointment of attorneys mandatory, rather than discretionary. In some cases, the judges’ group wrote in a memo, an attorney would only “add one more voice to the multitude without providing much additional assistance to the court.”

Throughout the process, GAL Program Executive Director Theresa Flury expressed concern about taking funding and independence away from her office that is struggling from the loss of $5 million over the past two years.

Flury and Mary Linville Atkins, a lawyer at the statewide GAL office, were two of the five “nay” votes on November 16.

“We would never oppose an attorney for the child, but to make it mandatory for every child to have an attorney would do exactly what the GAL Program does,” Flury said after she came out on the losing side of the vote. “I agree in many areas that children need representation. If we were fully funded, we could do it, and with our model we could do it more efficiently.”

She said the much-touted Palm Beach model provides best-interest representation to children from infants to 12 years old, with one attorney handling a caseload of 35 children. In contrast, Flury said, each GAL attorney has a case load of 225 children.

“For us to implement that statewide is over $100 million,” Flury said. “I don’t know where Florida has $100 million to implement this.”

Funding lawyers for children remains a challenge.

“I have been meeting with the leadership in the Senate and the House. This will not fly without new funding. That is a practical reality,” Talenfeld said.

Judge Barkett admitted: “I don’t know about the funding thing. I understand there has to be a funding mechanism, because Howard and Alan tell me so.. . . Look, children’s needs are not being funded by the State of Florida. Period. The end,” Barkett said, whether it’s for mental health services or foster care.

“So whatever entity provides lawyers for children at government expense, it has to be done in some prioritized way.”

The funding mechanism outlined in the proposed bill calls for appropriations to go to the Justice Administrative Commission, which would then contract with a not-for-profit 501(c)(3). Talenfeld said The Florida Bar Foundation would likely be the recipient of the appropriations.

Elisha Roy, a Family Law Section member working with the Legal Needs of Children Committee to iron out concerns, said: “Children should have representation. We all agree on that. The issue is how it happens.. . . If we create a new revenue source, should we not be lobbying for that revenue source to be used to fund the courts? The fear is: Where is the funding coming from? What do you sacrifice?”

Because of the funding issue, Ronald Gilbert, of Miami, cast a “nay” vote.

“The problem is there are only so much funds the Legislature can appropriate, unless you have a dedicated source,” Gilbert said. “If you want 10 percent of all Bar dues, or 10 percent of legislative campaign funds to go toward this, I have no problem with the legislation.”

In selling the bill at the Legislature, Talenfeld said he would shine a spotlight on “the great work in Palm Beach, where lawyers and guardians are working together and are shortening the length of stay of children in the system and saving children’s lives.”

Even though the GAL Program is currently opposed, Talenfeld said, “I am hopeful that after we get a dedicated source of funding for this bill that they will step on board to have the rights of children for attorneys in dependency courtrooms.”

News in Photos