by The Florida Bar News
It’s important that every child have a voice in court. But should every child have an attorney to make sure his or her voice is heard loud and clear?
That question remains a sticky wicket for members of The Florida Bar Commission on the Legal Needs of Children, chaired by 11th Circuit Judge Sandy Karlan, as they grapple with making final recommendations at the first of the year.
What kind of representation children should have in dependency court — guardians ad litem, attorneys ad litem or some combination — is a debate that continued to rage on among members of the Representation Subcommittee at a recent meeting.
“I feel that kids taken from their parents should have lawyers. I’m not willing to concede,” said Sharon Langer, vice chair of the commission and member of the Board of Governors, who advocates an attorney-driven model of representation for children in dependency court. But 9th Judicial Circuit Judge Daniel Dawson called the attorney-driven model “harmful to children,” unnecessary, and too expensive to be feasible.
“Every child does not need an attorney ad litem, only a small percent. We can accomplish more with fewer lawyers,” said Dawson, who is heading up a legislature-funded pilot project in Osceola County that uses guardians ad litem as the first line of representation for children in dependency cases. The other half of the three-year pilot project in nearby Orange County uses the attorney ad litem model — and an attorney is appointed only to those children in which the court finds it necessary.
“How can you say attorneys are harmful to kids?” Langer asked.
Dawson explained: “It’s philosophically dangerous to have attorneys for every child. I have parents’ attorneys who come before me. And because they are skilled in the law, they do things that are bad for children.”
“I’m not proposing a lawyer for every child in every case. I’m proposing an attorney-driven model,” Langer said. “I’m proposing that children be raised to the same level as adults.”
“Children are not adults,” Dawson responded. “Attorneys violate their ethics every day. What happens when a client says, ‘My dad sexually abuses me, but don’t tell’?”
As Dawson explained, a lawyer is bound by the attorney-client privilege to keep the secret as the client wishes.
But a guardian ad litem can tell the child’s secret without violating any ethical canons — and is actually prohibited from advocating contrary to the safety of the child. While it’s required that a guardian ad litem reveal the child’s wishes to the court, it does not mean they have to act on it. Guardians ad litem are duty bound to recommend what’s best for the child, not necessarily what the child wants, Dawson said.
“The testimony we’ve heard in all the lawyer-driven models is that lawyers either violate their ethics or hurt children,” Dawson said. “They have to scoot around the issue. If someone can show me a model that’s attorney-driven and does not hurt kids. . . but I haven’t seen one yet.”
“What I would like to see accomplished is that the voice of the child is heard in court,” Langer pressed on. “I feel in order for a child to be heard with credibility in our system, to have that voice heard is the person who has the lawyer.”
“You need to sit in my courtroom,” Dawson said. “I agree we need attorneys and attorneys’ voices. Where we differ is when it comes to the best interest of the child. If the model is attorney-driven, you cannot have best interest.”
Carlos Martinez, assistant public defender in the 11th Circuit and chair of the Representation Subcommittee, interjected: “But everyone who has testified said that’s a false choice: best interest versus child’s wishes.”
Indeed, testifying before the commission the day before was Nova Law Professor Michael Jeffrey Dale, who said: “I firmly believe it’s a red herring, the best interest of the child versus the child’s stated wishes. It gets the blood going and is an alternative to jogging.”
Dale said he’d recently written a law review article on representation for children and found a mix around the country: 22 states provide a guardian ad litem in dependency cases, 23 states use the Court Appointed Special Advocates (CASA) model of volunteer representation, and 11 states use a mix of both. He said there is no definitive study on which model works best. Two dozen states have laws that there shall be some form of appointed counsel, and that could be the guardian ad litem.
“What’s the one thing we can’t legislate?” Dale asked. “Skill, talent, and commitment. That’s why, irrespective of the type of system, if you don’t have skilled, talented, and committed people, nothing will happen. This piece of the problem can’t be reached by writing a statute.”
First Circuit Judge T. Michael Jones, on the Representation Subcommittee, asked Dale: “Is it necessary for every child to have a lawyer? Or can that goal be met by having a hybrid of an effectual guardian ad litem and someone making an intelligent decision on when an attorney is needed?”
When pressed, Dale answered: “Yes, hire lawyers in every case.”
Commission member Richard Milstein asked how to instill in law students the desire to go into a career in public service and child advocacy, especially with lucrative salaries offered by large firms coupled with huge student loan debts to pay.
“That’s very, very difficult,” Dale answered. “I have 12 students in my juvenile law class, and I have 90 students in my family law class. If they come out of law school and are lucky enough not to have big debt, it’s extremely difficult to get the bar and young lawyers to do this work. It’s painful. People don’t want to do it. There’s the attitude that we’re not dealing with our children — we’re dealing with their children.”
Mark Hardin, director of child welfare at the American Bar Association Center on Children and the Law, in Washington, D.C., suggested: “What do you think of this as a long-term goal: Obtain funding and resources to attract careers in child advocacy and tighten standards for those who practice that kind of law?”
And Dale said: “I would favor that. If we could build the skill levels on all sides, we’d have high skill and less acrimony.”
Less acrimony in high conflict domestic cases is the goal of a pilot project of 11th Circuit Judge Judith Kreeger, who is a member of the Supreme Court’s Family Court Steering Committee. Her program uses intensive biweekly case management to urge parties to settle rather than go to trial, and she said her bottom-line goal is this: “I want to see the process de-adversarialized.”
Enlisting the help of cooperative lawyers amenable to mediation, she lets dueling parties understand up front how invasive a home study will be and how much a contested trial will cost. She tries to get at the core reasons for the acrimony, and the attitude in her court is not “Are we going to resolve this?” but “How are we going to resolve it?”
It seems to be working so far, she said, because it is “diffusing the anger.”
Martinez asked her if the guardian ad litem program was fully funded and available for such cases, “Would you still go to a lawyer?”
And Kreeger answered: “If we get to make the rules from scratch, I would like a well-trained volunteer guardian ad litem. And you need a lawyer to file the motions. I think a well-trained volunteer could serve, especially a mental health professional, which our Chapter 161 doesn’t allow to happen, by the way.”
Gerald Kornreich, vice chair of the commission, who has often appeared before Kreeger helping resolve high-conflict domestic cases, said: “I try to be both. In a high conflict case, you need an attorney and a guardian ad litem so strong that they discourage litigation.”
John Crouch, of the American Bar Association’s Family Law Section, came from Virginia to talk about representing children in custody proceedings and described the ABA’s work in better defining standards for the child’s attorney and the guardian ad litem.
“My problem with the adversarial system is that there’s not too many lawyers, but too little,” Crouch said. “Attorneys help bring evidence out and get at the truth. An important duty of the guardian ad litem is to bring evidence forward. The lawyer has more knowledge, experience, and tools to do that.”
Reprinted with permission of The Florida Bar News.