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ABA Model Act Governing Representation of Children In POLICY UPDATE ABA Adopts Model Act on Child Representation in Abuse and Neglect Cases by Andrea Khoury “You are the one who makes the decisions, [but] I need to be heard unreasonable. so people may understand how I feel or what I need . Listen to The lawyer’s appointment is in me, since no one else will, and try to understand where I’m coming effect until the lawyer is dis- charged by the court. from.” —Former Foster Youth The child’s lawyer’s duties, among other things, include: entiments like this one from a states appoint lawyers to function in Sformer foster youth reinforce the the traditional lawyer role. Some interviewing and counseling importance of quality, client-di- states appoint nonlawyers, and some the child rected representation. In August states instruct the lawyer to use a preparing the case 2011, the ABA House of Delegates hybrid role. The Model Act gives negotiating and participating in passed the most comprehensive legislatures concrete language to hearings and settlement discus- policy concerning the child’s adopt that provides long-needed sions representative’s role in dependency uniform guidance to lawyers repre- meeting with the child at least cases since The Standards of Prac- senting children. The following once per quarter tice for Lawyers Who Represent summary highlights the Act’s Children in Abuse and Neglect provisions. consulting with the best inter- Cases were adopted in 1996. The ests advocate when appropriate Model Act Governing the Represen- Key requirements and consistent with confidenti- tation of Children in Abuse, Neglect, The Model Act provides some basic ality and the child’s legal and Dependency Proceedings gives requirements: interests attorneys clear guidance on repre- representing the child in all Every child is appointed a lawyer senting the most vulnerable client, who is bound by the rules of proceedings before the court the minor-child. professional conduct, including eliciting the child’s wishes in a Children’s attorneys are the confidentiality and zealous developmentally appropriate voices for the children. Children de- advocacy, and has access to the manner serve someone who listens to how child’s confidential information The lawyer is entitled to reason- they feel and what they want. Rep- regarding education, health, resenting children is not easy but by able and timely fees and mental health, social services, expenses. implementing The Model Act states delinquency, and other informa- can ensure that children in abuse tion relevant to the proceeding. Diminished capacity The Model Act includes guidance for lawyers representing a child with The Model Act gives legislatures concrete language to adopt that diminished capacity.1 It allows a provides long-needed uniform guidance to lawyers representing state to use a rebuttable presumptive children. age (e.g., 10 years old) to establish a child’s ability to direct the represen- tation. The lawyer may, however, rebut that presumption if the child is and neglect proceedings across The judicial officer may appoint a younger and deemed capable of the country have the best best interests advocate who does directing representation. A child representation. not function as the child’s lawyer having a different opinion than the Historically, states have not been but assists the court in determin- lawyer or insisting upon a course of uniform in child attorney gover- ing best interests of the child. action that the lawyer considers nance. Some states appoint guard- Lawyers must have specific child unwise is not diminished capacity. ians ad litem to represent what they welfare legal training. The determination should focus on think is best for the child. Some Caseloads for lawyers may not be the decision-making process rather 106 ABA Child Law Practice —www.childlawpractice.org Vol. 30 No. 7 than the decision. The lawyer not the same as determining the should not expect the child to child’s best interests. This is solely Resource convey information in the same way left to the judicial officer. For technical assistance on as an adult client. The commentary encourages representation of children in The Model Act provides criteria lawyers to see the world through the abuse in neglect cases, involving for determining diminished eyes of the child and to ensure all youth in dependency court, and capacity: advocacy is: other child welfare issues, contact Andrea Khoury at child’s developmental stage child-centered, [email protected] cognitive ability research-informed, emotional and mental permanency driven, and child’s developmental ability development holistic. child’s emotional maturity ability to communicate The lawyer should consider the purpose of the hearing ability to understand child’s legal interests and aim to whether the child would be consequences quickly resolve the case. severely traumatized by such consistency of child’s decisions attendance Protective action strength of wishes and opinions of others (including social The Model Act reiterates the guid- ance in the ABA Model Rules of The Model Act also provides worker, therapists, teachers, several options to make court atten- family members, or hired experts) Professional Conduct (2004) when lawyers represent a client with dance most meaningful for the diminished capacity who is at risk child, including the child being Diminished capacity can be in- of substantial physical, financial, or present throughout the entire hear- cremental and issue specific. A child other harm unless action is taken, ing, the child speaking with the judi- may be able to make considered de- and cannot adequately act in his or cial officer in chambers, and exclud- cisions about sibling visits but not her own interest. Under these ing the child during harmful about another aspect of the case. circumstances, the lawyer may take testimony. The child should direct representa- reasonably necessary protective tion in those areas that she does action. See Rule 1.14, ABA Model Passing The Model Act is only have capacity. Rules of Professional Conduct. the first step. States must adjust their Protective action includes consult- statutes to ensure that every child is Substituted judgment ing with family members or profes- appointed an attorney who follows Even when the child’s capacity is sionals who work with the child, it. States must also ensure that law- diminished the lawyer must make a taking a reconsideration period to yers have training to implement the good faith effort to determine the allow for improvement in circum- provisions. The American Bar Asso- child’s needs and wishes and stances or child’s capacity, and in ciation Center on Children and the maintain a normal client-lawyer extreme cases requesting a best Law can be a helpful resource. relationship with the client as much interests advocate be appointed. as possible. Only when this relation- Andrea Khoury, JD, directs the Bar- ship is not possible can the lawyer Child’s participation in Youth Empowerment Project and is substitute his or her judgment and proceedings an assistant staff director at the represent the child based on that The Model Act establishes that each American Bar Association Center on judgment. child has the right to notice and to Children and the Law. She assisted Substituted judgment means the attend and fully participate in all in drafting the Model Act Governing lawyer attempts to determine what hearings related to his or her case. If Representation of Children in Abuse the child would decide if the child the child wants to be at a hearing and Neglect Proceedings. was capable of making an ad- and is not transported, The Model equately considered decision. The Act requires the court to postpone Endnotes commentary further explains that 1 Previous guidance in the Standards of Practice the hearing. The commentary the lawyer may seek guidance from for Lawyers Who Represent Children in Abuse provides the following factors to appropriate professionals and others and Neglect Cases and The ABA Model Rules consider the manner in which the who know the child and must seek of Professional Responsibility, although helpful, child will participate: do not provide as much detail and concrete opportunities to see the child in her guidance at the Model Act. This clearer guidance environment. The Model Act makes whether the child wants to attend will help provide consistency in representation clear that substituted judgment is child’s age across the country. Vol. 30 No. 7 ecuring ABA Child Law Practice —www.childlawpractice.org 107 AMERICAN BAR ASSOCIATION SECTION OF LITIGATION SECTION OF FAMILY LAW CRIMINAL JUSTICE SECTION COMMISSION ON HOMELESSNESS AND POVERTY COMMISSION ON YOUTH AT RISK GENERAL PRACTICE, SOLO AND SMALL FIRM DIVISION 1 STEERING COMMITTEE ON LEGAL AID AND INDIGENT DEFENSE 2 JUDICIAL DIVISION 3 PHILADELPHIA BAR ASSOCIATION 4 LOS ANGELES COUNTY BAR ASSOCIATION 5 LOUISIANA STATE BAR ASSOCIATION 6 YOUNG LAWYERS DIVISION 7 INDIVIDUAL RIGHTS AND RESPONSIBILITIES 8 GOVERNMENT AND PUBLIC SECTOR LAWYERS REPORT TO THE HOUSE OF DELEGATES RESOLUTION 9 RESOLVED, That the American Bar Association adopts the Model Act Governing the 10 Representation of Children in Abuse, Neglect, and Dependency Proceedings, dated August, 11 2011. 1 101A 1 ABA Model Act Governing the Representation of Children in 1 2 Abuse, Neglect, and Dependency Proceedings 3 4 SECTION 1. DEFINITIONS. In this [act]: 5 (a) “Abuse and neglect proceeding” means a court proceeding under [cite state 6 statute] for protection of a child from abuse or neglect or a court proceeding under [cite 7 state statute] in which termination of parental rights is at issue.2 These proceedings 8 include: 9 (1) abuse; 10 (2) neglect; 11 (3) dependency; 12 (4) child in voluntary placement in state care; 13 (5) termination of parental rights; 14 (6) permanency hearings; and 15 (7) post termination of parental rights through adoption or other 16 permanency proceeding. 17 (b) A child is: 18 (1) an individual under the age of 18; or 19 (2) an individual under the age of 22 who remains under the jurisdiction of 20 the juvenile court.
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