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Preamble

Every child in every child welfare proceeding, including foster care and dependency proceedings, should be provided with competent independent legal counsel. The safety, stability and well being of children involved in these proceedings are highly dependent upon competent legal representation of all parties, including the young people whose lives are at issue. The following principles are designed to promote the safety, stability and well being of children through the provision of high quality legal services for child clients.

Principles

I. Legal representation provided by an attorney trained in child law and practice allows the child equal access to justice. Children, like adults, are deserving of and entitled to representation that protects their interests, expresses their wishes, and gives them meaningful access to the courts. Only lawyers sufficiently trained and financially supported to represent children can provide effective assistance of counsel to their clients.

II. A child has a fundamental liberty interest in his or her own safety, health and well-being as well as in maintaining the integrity of the family unit and in having a relationship with his or her biological parents. A child in state custody continues to have these fundamental liberty interests as well as a right to safe living conditions and services necessary to ensure protection from physical, psychological and emotional harm and to secure permanency in a safe, loving family. These fundamental liberty interests are separate and distinct from the interests of parents, guardians, or the state.

III. A child’s right to due process and equal protection must be guaranteed in order to protect the child’s fundamental liberty interests and improve upon the integrity and effectiveness of the judicial, child welfare and foster care systems.

IV. “Competent legal counsel” for a child is a lawyer trained in child law and advocacy who is capable, by means of a manageable caseload, available time, resources and support, and adequate compensation, to ensure effective assistance of counsel. Independent counsel owes the child client the same duties of zealous representation, undivided loyalty and confidentiality ethically required of counsel for adults. “Adequately compensated” means remuneration sufficient to the complexity of the case, comparable to state attorneys and paid in a timely manner.

V. A child involved in a child protective, foster care or dependency proceeding shall be considered a party to that proceeding, having the right to pursue legal remedies, to initiate legal proceedings in a court of competent jurisdiction and to express him- or herself, with the assistance of counsel, to the court or hearing officer.

VI. A child’s opinion regarding his or her circumstances is of paramount importance to insure any judicial understanding of that circumstance. Prior to any judicial disposition, a child shall have the opportunity to express his or her views and wishes to the court, personally or through a lawyer.

VII. Every child is presumed competent and entitled to contribute to his or her representation to the fullest extent feasible given the child’s cognitive and developmental capacities, absent a showing that he or she is unable to comprehend or make adequately considered decisions in connection with the representation after being counseled by his or her attorney. If the child’s attorney determines that it is necessary to substitute judgment for the child, the attorney must continue to maintain an attorney-client relationship with the child, to the fullest extent feasible given the child’s cognitive and developmental capacities, as well as inform the court of the child’s wishes.

VIII. Attorneys representing children are required to counsel the client to the fullest extent feasible given the child’s cognitive and developmental capacities with regard to every aspect of the case, including potential ramifications of the client’s choices, in order to ensure that the child is expressing his or her counseled wishes. Attorneys are ethically required to bring the fullness of their experiences to representing their child clients. This includes counseling the client against the particular outcome desired by the client where the attorney believes that outcome to be contrary to the interests of the client.

IX. Any attorney with legal responsibility for the representation of a child who has an open child welfare case must have full access to all information that bears upon the safety and well being of the child including services being provided to the child and family, the permanency plan, and steps being taken to secure permanency for the child, consistent with state and federal law.

X. Court-appointed special advocates (CASA) and lay Guardians Ad Litem (GAL) can be valuable sources of support for children in maltreatment and dependency proceedings but cannot substitute for independent counsel for the child.

XI. Attorneys representing children, parents and guardians and agencies in child welfare cases, as well as judicial officers presiding over those cases, can be assisted by guidelines for such case practice such as those standards set by the American Bar Association, the National Association of Counsel for Children and the National Council of Juvenile and Family Court Judges. Encouraging application of rules of practice nationally through such measures as fiscal incentives may contribute to heightened adherence to desired standards of practice.

Action Principles

1. Congress should encourage the development of national and state professional standards to ensure that attorneys representing children in maltreatment and dependency cases are trained in child law and provide effective representation to their child clients. National uniform standards for practice, such as the American Bar Association’s Standards of Practice For Lawyers Who Represent Children In Abuse and Neglect Cases (1996) and the National Association of Counsel for Children’s Recommendations for Representation of Children in Abuse and Neglect Cases and accompanying “Needs Checklist” (2001), should be further developed and their adoption strongly encouraged by federal law to the full extent possible.

2. The National Conference of Commissioners on Uniform State Laws should adopt and enact its proposed model rule on the “Uniform Representation of Children in Abuse, Neglect and Custody Proceedings Act” (2004), and therein require, inter alia, that:

A child at issue in a maltreatment or dependency case be presumed competent and entitled to contribute to his or her representation absent a showing that he or she is unable to do so.
Appointment of traditional, client-directed representation for a child in a maltreatment or dependency proceeding be mandatory and occur prior to any adversary hearing.

3. Congress should amend CAPTA and the Social Security Act (specifically those amendments titled the “Adoption and Safe Families Act” (ASFA) to require that:

Every child in every proceeding at which that child’s interests are at stake be afforded the opportunity to make his or her opinions and wishes known to the court through his or her representative, effectively and with zealous attention to the child’s stated interests.
At minimum, the child must be appointed an independent, trained attorney at any child welfare hearing implicating the child’s fundamental liberty interests, including adjudication of dependency, custody, adoption, TPR, foster care or residential placement.
Every child shall be entitled, to the fullest extent possible given the child’s cognitive and developmental capacity, to contribute his or her voice to the proceedings through independent counsel. .

4. Congress should amend CAPTA to require that:

No person in any representative capacity, be it CASA, GAL, AAL or attorney, represent a child in any proceeding without proper training in child advocacy law as determined by the individual states. Training requirements must also be met by attorneys representing state and local child protective service and social service systems.
Lawyers be trained and practice in accordance with the standards arrived at by the American Bar Association.
Each state report on its current representation model and standards, stated goals for the representation of children, and steps being taken towards their implementation.
Strict penalties should attach for states that delay in complying with such standards to protect children.

5. Further, Congress should:

Reject any proposed legislation that weakens a state or federal position on the need for competent, trained legal advocates working for abused, neglected and dependent children.