Rethinking Best Interest for the Queer Child
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City University of New York (CUNY) CUNY Academic Works Publications and Research CUNY School of Law 2008 Traditional Advocacy for Nontraditional Youth: Rethinking Best Interest for the Queer Child Sarah Valentine CUNY School of Law How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cl_pubs/196 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] TRADITIONAL ADVOCACY FOR NONTRADITIONAL YOUTH: RETHINKING BEST INTEREST FOR THE QUEER CHILD Sarah E. Valentine* 2008 MICH. ST. L. REV. 1053 TABLE OF CONTENTS A BSTRA CT ................................................................................................1054 INTRODU CTION ......................................................................................... 1054 I. ROLE OF THE ATTORNEY REPRESENTING CHILDREN ........................ 1060 A . The Role Continuum ................................................................. 1061 B. Constitutional Standards ............................................................ 1065 C. Legislative Guidance: The Example of New York .................... 1068 D . Ethical R ules .............................................................................. 1070 II. QUEER KIDS IN A NON-QUEER WORLD ............................................ 1072 A . Sexual Children ......................................................................... 1073 B . Queer at H om e ........................................................................... 1076 C . Q ueer in School ......................................................................... 1083 D . R outes to C ourt .......................................................................... 1085 E. Queer in State Custody .............................................................. 1091 III. ATTORNEYS REPRESENTING QUEER YOUTH MUST BE REQUIRED TO ACT AS TRADITIONAL ZEALOUS ADVOCATES ................................... 1097 A. Dangers of Best Interest Lawyering for Queer Children ........... 1097 B. Advantages of Traditional Advocacy for Queer Children ......... 1100 C. Potential Objections to Requiring Traditional Advocacy for Queer C hildren ..................................................................................... 1106 IV. MECHANISMS FOR REQUIRING TRADITIONAL ADVOCACY FOR QUEER C HILDREN .......................................................................................... 1110 C ON CLU SION ............................................................................................ 1113 * Legal Research Coordinator, Associate Law Library Professor, City University of New York School of Law. I formerly represented juveniles in New York Family Court as well working in a general legal services practice. I wish to thank The Professional Staff Congress-City University of New York (PSC-CUNY) Research Award Program for its fi- nancial support and Megan Stuart for her skilled and enthusiastic research assistance. In addition this Article has benefitted greatly from the support and encouragement of Ruthann Robson. 1054 Michigan State Law Review [Vol. 2008:1053 ABSTRACT This Article argues that attorneys representing queer children-those children who either self identify or are perceived by others as being a sexual minority or who do not conform to normative gender roles-must provide traditional zealous advocacy to their queer child clients. The heterosexism that pervades our culture infects our families, schools, courts, and child wel- fare systems, often with disastrous results for queer kids. Unfortunately, these biases also afflict attorneys who represent this population, tainting their ability to represent their clients in a conscientious, ethical, and effec- tive manner. Given the extreme danger queer children face when they are entangled in the legal system, it is important to ensure that the attorneys representing them do not exacerbate the risks they face. The necessity for traditional advocacy is not dependent on the age of the child, the type of proceeding, or the sensibilities of the individual lawyer. Any advocacy model allowing an attorney to substitute his or her own judgment as to what is in a queer child's best interest is potentially devastating for queer child clients and must not continue. This Article concludes with a model rule, which would prohibit all but traditional representation for queer children. INTRODUCTION Queer youth' and the attorneys who represent them face unique and daunting challenges when attempting to safely navigate the legal and child welfare systems. The heteronormativity2 and homophobia that pervade our 1. I have previously defined "queer kids" as children "who are, who may be, who are questioning whether or not they are, who may be seen as being, or who are targeted for being lesbian, gay, bisexual, transgender, or gender nonconforming." Sarah E. Valentine, Queer Kids: A Comprehensive Annotated Legal Bibliography on Lesbian, Gay, Bisexual, Transgender,and QuestioningYouth, 19 YALE J.L. & FEMINISM 449, 453 (2008). 2. See Michael Warner, Introduction to FEAR OF A QUEER PLANET: QUEER POLITICS AND SOCIAL THEORY xxi (Michael Warner ed. 1993) (heterosexual culture has the exclusive ability to interpret itself as society, as the elemental form of human association, and indivisi- ble basis of community); see also Julie Novkov, The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History?, 33 LAW & Soc. INQUIRY 345, 360 (2008) (defining heteronormativity as "'those localized practices and centralized institutions that legitimize and privilege heterosexuality and heterosexual relationships as fundamental and "natural" within a society."') (citation omitted). 3. Homophobia is commonly used to express the full range of anti-LGBT thought and behavior. Scott Hirschfeld, Moving Beyond the Safety Zone: A Staff Development Ap- proach to Anti-Heterosexist Education, 29 FORDHAM URB. L.J. 611, 617-18 (2001) ("[W]hen discussing the belief.., that [same-sex attraction] is 'wrong' or 'less than,' it may be more accurate to use the term 'heterosexism,' which can be understood as an overt or tacit bias against non-heterosexuals based on a belief in the superiority or, sometimes, the omnipres- ence of heterosexuality. Heterosexism is a broader term than homophobia in that it need not Winter] TraditionalAdvocacy for NontraditionalYouth 1055 culture also infect our families, schools, courts, and child welfare organiza- tions. These biases are at the root of much of the harm suffered by queer children. Unfortunately, heterosexist and homophobic biases also afflict attorneys who are appointed to represent queer children, tainting their abil- ity to represent their clients in a conscientious, ethical, and effective man- ner. Given the extreme danger queer children face when they are entangled in the legal system, it is important to ensure the attorneys representing them do not exacerbate the risks these children confront. Most states can exert jurisdiction over children qua children until the age of majority and in some instances, much later.4 During the past sixty years, most children facing the punitive powers of the state received the right to be represented by counsel.' However, the contours of that represen- tation vary widely depending on the state, the proceeding, the attorney, and the court.' The education, expertise, and commitment attorneys bring to the representation of children are also highly variable. Attorneys assigned to represent children may be solo practitioners accepting the occasional ap- pointment or may work in a state supported office specializing in the repre- sentation of children. The level of state support and attorney expertise cer- tainly makes a difference in the adequacy of representation each child re- ceives.7 However, for many children (even those in delinquency proceed- ings) the representation is cursory at best, with the most well-meaning at- torneys viewing themselves as inconsequential This less than robust legal imply the fear and loathing the latter term suggests. Heterosexism can describe seemingly benign [but harmful] behavior based on the assumption that heterosexuality is the norm."). 4. CAL. WELF. & INST. CODE § 607 (West 2008). (a) The court may retain jurisdiction over any person who is found to be a ward or dependent child of the juvenile court until the ward or dependent child attains the age of 21 years, except as provided in subdivisions (b), (c), and (d). (b) The court may retain jurisdiction over any person who is found to be a person described in Section 602 by reason of the commission of any of the offenses listed in subdivi- sion (b), paragraph (2) of subdivision (d), or subdivision (e) of Section 707 until that person attains the age of 25 years if the person was committed to the Depart- ment of the Youth Authority. Id. 5. See discussion infra Section I.B. 6. In this Article the terms "family court" or "court" denote any proceeding that may affect in whose custody a queer child may be placed (i.e., custody, abuse and neglect, foster care extensions, adoptions, juvenile delinquency proceedings, and PINS or CHINS proceedings in which the child is alleged to be out of control or "in need of supervision"). The phrases "juvenile justice system" or "juvenile proceeding" are used specifically for those proceedings in which the state is asserting control over the juvenile based on the juvenile's own behavior