Free:
Perspective: New Era in Representing Children
By Tamara Steckler and Gary
Solomon
October 22, 2008
For as long as lawyers have been representing children in New York state and
elsewhere, the unfortunate backdrop for this otherwise noble and rewarding work
has been an often heated debate regarding the proper role of a child's lawyer
in neglect and abuse, permanency and termination of parental rights
proceedings. While a state has considerable discretion in defining that role,
New York, like many other states, has provided only general guidance to
children's lawyers, who are referred to as counsel or, confusingly, as
"law guardians" in New York statutes. As a result, while everyone
agrees that the child's lawyer, like any other lawyer, must conduct an adequate
factual investigation, communicate regularly with any verbal client and help
such a client understand the proceedings and make sound decisions, and prepare
for and advocate at court hearings, lawyers have been left relatively free to
follow, or override in their discretion, positions taken by their young and
immature clients. In other words, lawyers have been able to navigate freely
between the traditional lawyer's role - advocating for the client's expressed
interests, and a guardian ad litem role - advocating
for what the guardian determines to be in the child's interest.
On Oct. 17, 2007, Chief Judge Judith S. Kaye, a long-time children's rights
champion, signed new §7.2 of the Rules of the Chief
Judge, which states that in juvenile delinquency and person in
need of supervision proceedings, "the attorney for the child must
zealously defend the child," and that in other proceedings, the child's
attorney "should be directed by the wishes of the child" if "the
child is capable of knowing, voluntary and considered judgment," even if
the attorney "believes that what the child wants is not in the child's
best interests."
Under Rule 7.2, the attorney "would be justified in advocating a position
that is contrary to the child's wishes" when the attorney "is
convinced either that the child lacks the capacity for knowing, voluntary and
considered judgment, or that following the child's wishes is likely to result
in a substantial risk of imminent, serious harm to the child."
Rule 7.2 was promulgated shortly after the New York State Bar Association's
formal adoption of Standards for Attorneys
Representing Children in New York Child Protective, Foster Care and Termination
of Parental Rights Proceedings, which strike a similar theme.
Even before these developments, The Legal Aid Society's Juvenile Rights
Practice, for the first time in its 46-year existence, engaged its staff in a
comprehensive discussion of the role of the child's lawyer with a view towards
developing formal written guidelines for juvenile rights lawyers.
Now, against the complementary backdrop created by Rule 7.2 and the state bar
standards, Legal Aid's guidelines, "Giving the Children a Meaningful
Voice: The Role of the Child's Lawyer in Child Protective, Permanency and
Termination of Parental Rights Proceedings," have been released.
See The Legal Aid Society's report.
We believe that the strength of the adversarial process lies in the full
presentation and consideration of the affected parties' points of view. The
child, whose liberty interests are implicated in the proceeding, is entitled to
this opportunity no less than any other party. Accordingly, like Rule 7.2 and
the state bar standards, the Juvenile Rights Practice guidelines endorse the
traditional lawyer's role as advocate for the child's wishes, while also
recognizing narrow exceptions to the general rule.
Juvenile Rights Practice lawyers may, but are not required to, take positions
that are inconsistent with the client's expressed wishes only when the client
"lacks the capacity to fully comprehend the nature of the proceeding and
the issues raised and communicate a preference and comprehensible reasons for
it," or when arguing successfully for the result the child prefers would
expose the child to a risk of "grave physical harm."
However, we recognize the residual danger that lawyers will evaluate
"capacity" using different standards. For instance, a lawyer might
equate capacity with maturity, and thus believe that any child of 15 or 16
lacks capacity. Or, while evaluating the child's capacity, a lawyer might treat
what appears to the lawyer to be a bad decision by a child as evidence of a
lack of capacity. To insure that capacity determinations will be as consistent
as possible, the guidelines endorse the view that by age 10, a child usually
has decision-making ability, and that many children ages seven through nine
possess such ability.
Extensive Research
The Juvenile Rights Practice guidelines do not adopt this view without good
reason or without exhaustive research. Before arriving at this result, the
guidelines: (1) carefully analyze New York statutes, case law, and attorney
ethics and practice standards, as well as other authorities, and conclude that
this model of representation is permissible; (2) highlight the ways in which
the effectiveness and integrity of the judicial process, and the child's
confidence in that process, are enhanced when there is a lawyer who advocates
in accordance with the child's unique perspective; and (3) rely on expert
authority supporting the view that by age seven a child's social, language and
cognitive abilities have become more complex and sophisticated.
At the same time, however, the guidelines recognize that although many young
children do possess sufficient capacity to make decisions and ought to have a
loyal advocate, their deficits in experience, insight
and maturity heighten the importance of the lawyer's counseling role. Even when
the lawyer is "client-directed" in that the child's wishes will
prevail in the end if the lawyer and the child disagree, a lawyer's
representation of a child, like a lawyer's representation of an adult, also is
"lawyer-directed" in the sense that a lawyer should, without
overwhelming the client's will, attempt to steer the client away from
self-destructive and other ill-conceived positions and towards better ones. The
guidelines also recognize that while a child has the right to make certain
fundamental decisions that implicate his or her liberty interests, decisions
involving litigation strategy, including the means by which to achieve the
child's litigation goals, are made by the lawyer.
The guidelines also lay out a methodology for attorneys to use when making
decisions on behalf of non-verbal infants and other children who lack capacity.
(This is often referred to as "substituted judgment" representation.)
The lawyer, lacking the direction provided by a client, has no alternative but
to advocate in accordance with the governing legal standard.
For instance, the lawyer will look to the imminent risk standard at a removal
hearing, and to the preponderance of the evidence or clear and convincing
evidence standard at a fact-finding hearing. When making decisions on behalf of
a child who lacks capacity in certain other contexts, for instance, a custody
dispute involving non-parental custodians, the lawyer may, consistent with
applicable legal standards, consider the child's best interests.
The guidelines also instruct the lawyer to give at least some weight to the
wishes of a child who lacks decision-making capacity, since the child has
first-hand knowledge of the home environment and even very young children can
make a substantial contribution to the decision-making process. The lawyer also
should keep in mind the disparity between the lawyer's own life experiences and
expectations, and those of the child. At a formal hearing, the lawyer should
seek to elicit as much information as possible; although in many cases the
lawyer already will have adopted at least a tentative position before the
hearing commences, the lawyer cannot be certain that new information will not
change his or her position.
Working With Judges
We recognize that many Family Court judges have come to expect the child's
lawyer to employ a "substituted judgment" model much more broadly
than is permitted by §7.2 of the Rules of the Chief Judge or by the guidelines
we now adopt, and that the judges value that model because it seems to insure
that they will get as much information as possible.
There are a number of ways to address such concerns. First, if the child's
lawyer engages in effective counseling, makes appropriate determinations
regarding a client's incapacity and/or the risk of grave physical harm, and
avoids making frivolous arguments, judges should not be faced with a child's
lawyer who is advocating for a result that would place the child at risk of
serious harm. In any event, the judge can choose to reject the lawyer's
arguments.
Moreover, the evidence the judge requires will be presented by lawyers
representing other, highly adversarial parties. If those lawyers are
ineffective, the judge has the option of soliciting additional evidence;
indeed, appellate courts have instructed judges to do precisely that when
important evidence has not been produced. Finally, with promulgation of Rule
7.2, and adoption of the state bar standards, a new era of child advocacy in
Tamara Steckler is attorney-in-charge of
the Juvenile Rights Practice, and Gary Solomon is director of
Legal Support for the Juvenile Rights Practice.
Last updated January 20, 2009
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