around the bar
August 6, 2010

Too Many Children Without Lawyers to Represent Them

Lawyers who represent children in dependency proceedings say it’s time for these children – regardless of which state they live – to have a right to legal counsel.

Meeting yesterday at the 2010 _ Annual Meeting in San Francisco, a panel of children’s rights advocates discussed eliminating the barriers that prevent lawyers from representing these children in life-impacting legal proceedings.

According to the U.S. Department of Health and Human Services there are more than half a million children in foster care and under the jurisdiction of family courts.  These are children who have been, for example, removed from their homes, placed in temporary shelters and possibly separated from siblings.

When it comes down to who is looking out for the rights and interests of the children in the courtroom – a lawyer, a guardian ad litem or an attorney ad litem — there is no clear-cut, uniform answer.

“Every state has a different model,” says Hilarie Bass, a Miami commercial litigator who does pro bono work representing foster kids.

She points out the obvious — that there are too many children who need help, without enough money in the system to serve them.  Despite those hurdles, Bass, who is also incoming chair of the _ Section of Litigation, says she expects the section to make a recommendation on the right to counsel for children that should come up for debate before the ABA’s policymaking body in 2011.

“It would be a recommendation to provide for counsel and representation of children in delinquency and dependency proceedings,” says Bass.

ABA President Carolyn Lamm says the ABA is an association interested in promoting the best interest of children and finding solutions “before we have a crisis situation.”

Lamm adds, “These citizens are the most vulnerable of course, in terms of no one to defend their legal rights.  The ABA does so much work in the public interest.  This is a segment of the public that needs us and we are strong and forceful advocates for children and the rights of children to be represented.”

So far, the U.S. Supreme Court has not spoken on the issue of whether children have a constitutional right to counsel in dependency proceedings.

Georgia attorney Trenny Stovall directs the DeKalb County Child Advocacy Center and represents children in dependency proceedings every day.  She says children who don’t have their own lawyer do not have a voice.

“When children don’t have a lawyer, their ability to be considered a living being with rights is vastly diminished.  Without representation, they become a widget in the eyes of the court,” says Stovall.

Children like 16-year-old Trevor Wade — who has been through the dependency court system — will tell you that having a lawyer makes a difference.  He says his lawyer fought against a system that would have placed him back with an abusive father.  These days he’s an intern in a public defender’s office, helping kids who are going through the court system.

Wade hopes to go to law school and is zealous in his advocacy on this issue.

He says that when states and courts make decisions not to provide lawyers for children, the question that needs to be asked is, “What is the price of a child’s success?”

“Enforcing the Right to Counsel for Children: The Time is Now” was sponsored by the Section of Litigation, Criminal Justice Section, Standing Committee on Legal Aid and Indigent Defendants, Commission on Homelessness and Poverty, Commission on Youth at Risk and ABA Center on Children and the Law.

The _ is holding its Annual Meeting in San Francisco through Aug. 10.  The association’s policymaking House of Delegates will meet Aug. 9 – 10 to debate recommendations brought before it, including two recommendations, numbers 104 and 105, which relate to the issue of right to counsel in a civil law context.