A Child's Right to Counsel

The process in which many abused and neglected children find themselves is, first and foremost, a legal one. Once a report of child maltreatment is deemed founded, dependency courts in each state and the District of Columbia make a determination as to whether the child is abused or neglected and whether to remove the child from his or her home. The conclusion of this trial often ushers in an extended series of legal hearings that determine and oversee the child’s placement(s) and services.  Requests are made through motions, decisions are made by judges in courtrooms and an understanding of the legal process is essential for anyone advocating for any party, including the child.  This period of hearings can last years, and a number of related legal proceedings can also ensue, including those related to termination of parental rights, adoption, custody, or criminal cases.

Notably, the court in dependency proceedings operates beyond its usual role as an arbiter between contending litigants.  In these cases, the court formally steps in to function as the legal parent.  But its parental role is played out not in a home as an individual who can monitor and supervise the child on a daily basis, but through intermittent court proceedings.   And, while courts in these proceedings are typically the most “active” courts in the United States, they remain ultimately dependent on the information presented to them.  Hearing from a child who wants to participate in his or her court case and who has had effective counsel to understand the legal issues involved, the impact of different decisions, and the scope of possibilities is imperative to sound decision-making by a court when it is acting as parent (or what is referred to as parens patriae).  The child is the person who knows best what has been taking place in his family, and in a system that is not functioning well, may be the only person who can convey that critical information to the court.

For these reasons, the Children's Advocacy Institute believes that each child involved in a dependency proceeding must be represented by his/her own attorney in a client-directed fashion. Such attorneys must receive multidisciplinary training appropriate to this representation; maintain manageable caseloads that affords them appropriate time and resources to devote to each client; and represent their clients through all stages of the proceeding, including any appeals.

CAI's work in this area includes the following:

• CAI's Bob Fellmeth oped: On Legal Fees for Parents and Children, Trump Administration Scores One for Basic Republican Values (Feb. 7, 2019)
• CAI advocacy results in federal policy shift allowing IV-E reimbursement to states for providing children with legal representation in child abuse and neglect cases (Jan. 7, 2019)
• CAI to Co-Sponsor Sept. 12 Congressional Briefing on Children's Right to Counsel (Aug. 12, 2016)
• CAI research featured in NACC Infographic on a child's right to counsel  (Sept. 8, 2015)
• CAI Joins Amici Curiae Brief in Support of Child's Right to Counsel in Dependency Cases (Jan. 23, 2013)
• CAI Files Petition for Writ of Certiorari to U.S. Supreme Court (pdf) in case challenging high caseloads of attorneys for abused and neglected children (July 11, 2012) View more case information
• CAI/First Star Release 3rd Edition of A Child's Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children, grading state laws regarding the appointment of attorneys for abused and neglected children (May 10, 2012)
• CAI Files Petition for Rehearing in Attorney Caseload Challenge; Leading Groups and Experts File Amici Briefs in Support of CAI's Position (Oct. 4, 2011) —Ninth Circuit Orders Defendants to File a Response (Oct. 26, 2011)
• CAI Joins Amici Brief to Washington Supreme Court on a Child's Right to Counsel in TPR Proceedings (Sept. 16, 2011)
• The American Bar Association Adopts the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings  — including language mirroring that used by CAI and First Star to grade states in A Child's Right to Counsel (Aug. 8, 2011)

A Child's Right to Counsel: A National Report Card on Legal Representation for Abused and Neglected Children. 3rd Edition.