Children’s panel studies representation issues January 15, 2001 Jan Pudlow Associate Editor Regular News Children’s panel studies representation issues Associate Editor It shouldn’t require stealing $10 from Grandma’s wallet or being beaten by Dad so a child can be labeled either delinquent or dependent in order to get desperately needed mental health services. Too often, children come to court with no one representing them at all, and more needs to be done to encourage lawyers to specialize in children’s rights. Children at the center of rancorous court battles have a right to know what’s being said about them, so they can speak up about inaccuracies and let their voices be heard. Decisionmakers on a child’s case — social workers, teachers, police, prosecutors and public defenders — need to be able to share information through a seamless communication system that flows to the clerk of courts and judges who need good information to make good decisions. And everyone — including the public, the media, legislators, law students, lawyers and judges — needs to be better educated about the root causes of a child’s problem and where to go for help. Those were among the recommendations of five subcommittees of The Florida Bar Commission on the Legal Needs of Children, when it met in Coral Gables on December 14 (see sidebar on page 11). Commission members passed a motion asking to extend their work beyond this year, so there is time to hold public hearings and conduct more research on the unmet legal needs of children. While 11th Circuit Judge Sandy Karlan, who chairs the commission, told members there was a “good chance” of receiving an extension beyond the two years that ends in May, she didn’t formally ask for more time when she gave a progress report to the Board of Governors on December 15. “We have set some large goals,” Judge Karlan told the board. “When are children entitled to representation? What kind of representation are they entitled to? Does it require a lawyer? Do lawyers have to represent the interests of their clients, or do they decide that children can’t determine what is in their best interest? This is a strong philosophical debate that is being carried out all over the country. There are no standards for representing children.” So far, after six meetings, key accomplishments of the commission include a major research project by the University of Florida Gator TeamChild, led by Claudia Wright, to identify all of the state laws that affect children — including probate, domestic violence, health care, education, appellate rules, administrative code and federal laws that affect state funding. “We can see that there are areas of the law that conflict, including just on the definition of what is a child,” Judge Karlan said, adding that Rep. Sandra Murman, R-Tampa, has shown an interest in doing a children’s code. The Florida Bar Foundation has given the commission a $25,000 technology grant to work on linking by computer all of the stakeholders in a child’s case so they can talk to each other. Now, Judge Karlan said, “There is no way the courts, even within a circuit, can communicate with each other on where all the cases involving a family and child are.” The hope is that the technology grant will go a long way toward sharing information so better decisions can be made about children in a timely manner. `Best Interest of the Child’? “We have to get away from the subjective, amorphous `best interest of the child,’” urged Ann Haralambie, a Tucson, Arizona, attorney who limits her practice to juvenile and domestic relations cases. The president of the Arizona Association of Counsel for Children and past president of the National Association of Counsel for Children shared her expertise with the commission. “Most of us who represent children are not social workers, we are not child psychologists, and we have no in-depth training to determine what’s in the best interest of children,” Haralambie said. Even those who are deeply divided about the role of a child’s attorney, she said, agree on this much: “The current tradition of the role of the child’s attorney is horrible.” “What’s in the best interest of the child is very subjective and gives the illusion of advocacy without substance,” she said. “What does it mean? Whatever you think is the best thing to do, just slap `best interest of the child’ on it.” Some judges are just plain lazy in determining what is in the best interest of the child, she said, and readily rubberstamp what lawyers say, while other judges are handicapped by lack of information. “Your decisions as judges can never be better than the data you are given,” she said. “And children’s attorneys, unfortunately, can be loose cannons.” Haralambie urged the commission to adopt statewide standards, adding it won’t be necessary to reinvent the wheel. “The ABA standards now are probably the best out there,” said Haralambie, who wrote “The Child’s Attorney — A Guide to Representing Children in Custody, Adoption and Protection Cases,” published in 1993 by the American Bar Association Section of Family Law. The “scariest research,” she said, is that a child’s brain is developed by age 3. “If you don’t form certain neuronal connections by age 3, you’ll never form them,” she said. So if a child has had a decent upbringing by age 3, and then has been abused, there is a good chance at rehabilitation, she said. But, if the child has been raised since birth in a chaotic, violent household, that child likely will not have the physical brain connections for rehabilitation. “I find that terribly frightening, and that says a lot about what to do with the under-3-year-olds. And my under-3-year-old clients are the least likely to be able to tell me what they would like to see in their case plan,” she said. That’s why objective information about child development is crucial in developing standards for representation. “One thing we all have consensus on is we’ve got to take ourselves out of this loosey-goosey, my own subjective opinion,” she said. The other thing that most everyone agrees with is that the child’s wishes must be communicated by a child’s adovocate, even if that advocate believes the child’s wishes are wrong. The exception, she said, is when the child doesn’t want that wish communicated. Determining what is the child’s wish is something a lawyer can ascertain, even if the lawyer doesn’t agree with it, such as the 16-year-old girl who’s been molested by her stepfather, but wants to go home anyway. Some lawyers abdicate their responsibilities, arguing that it’s what the child wants, so let’s do it, she said. “There has to be a middle ground,” she said. “Let the judge be the judge, and let the judge have the perspective of the child through the child’s eyes,” she said. And advocates should be held accountable, too. “We need to give children not just the illusion but the reality of being heard.” Haralambie recommended that services be provided in a family-friendly way, because there is a real stigma for a family to go through dependency court. “We need to think broader than the courts,” she said, suggesting that programs for families could be placed in schools and churches, where there is no stigma attached in attending. Wanted: Pediatric Lawyers The medical profession has had specialists for children for more than a century. So what’s taking the legal profession so long? That was the question both asked and answered by Diane Geraghty, a professor of law and director of the ChildLaw Center at Loyola University Chicago School of Law. Less than 25 years ago, the legal profession began to grasp the importance of lawyers specializing in pediatric law, Geraghty told commission members. It wasn’t until the end of the ’60s, with Supreme Court decisions, the civil rights movement and the clinical education movement, that the need for lawyers specializing in representing children was finally sparked. “There was no case law before that setting out that children have rights,” Geraghty told the commission, in summing up the history that led to focusing on a specialty in advocating for children. Another important correlation was that in the late ’60s and early ’70s, women began entering law schools, helping boost advocacy for children. In 1972, the first casebook on juvenile justice was published, following by treatises on the legal rights of children in the ’80s. The end of the ’80s and early ’90s, Geraghty said, “was a disastrous period for children,” with the crack cocaine epidemic, which flooded children into child welfare departments, and the proliferation of handguns that caused juvenile crime to spike. Driven by those external factors, pressure was put on legal education and the bar in general that led to the demand for legal education on children’s issues, she said. “For a long time, children’s work was thought of as an area that wasn’t challenging, and it is now considered ground-breaking in many areas. It now encompasses the rights of grandparents and the rights of unmarried fathers,” she said. In 1993, the same year the ABA established a committee and came out with the report, “America’s Children at Risk,” Loyola’s ChildLaw Center program was established. Students get a hands-on education with real cases that provide service to the community, and faculty get to disseminate their research. The goal is to attract and train a group of law students who seek to represent children in their legal careers. And its overall mission is to improve the quality of justice for children and families. “We don’t train our students to be social workers or mental health professionals, but we do expose them to those professions and their ethics and values, and teach them how to work with them.” Besides providing substantive knowledge in the law, advocacy skills and a strong ethical foundation, she said, students build skills in dealing with children. “Just the basic ability to communicate is so different when it’s a child, as opposed to a corporate client,” Geraghty said. “You have to know something about linguistics. You have to know that children under a certain age can only think and communicate in certain concrete terms,” she said. That’s why Loyola has a program that allows law students to put kids on the witness stand and do examination and cross-examination. “The traditional warrior-like mentality of litigation and rules of evidence is not particularly well-suited to certain aspects of solving children’s legal problems,” she said. “When you’re trying to think forward about what should happen to this child and this family, the adversary system does not work particularly well. So you have to have mediation.” The legal program at Loyola, she said, has been very involved in trying to improve the administration of justice and the quality of justice for children. “We can provide students with excellent training, but if we put them in systems that are dysfunctional, it impedes our ultimate goal,” Geraghty said. One idea in retaining law students to focus on this area of law is with financial incentives, such as convincing the legislature to forgive student loans for the people willing to practice in the area of child advocacy. With law students graduating with a debt of $100,000 or $150,000, “even for the most talented students, the pressures they are feeling economically are great,” she said. Another concern is that it’s mostly women who focus on this area of the law. “We have to question what it means when all of the guys go to the dot.com side of the law school, and women are left with the public service,” Geraghty said. She spoke of other challenges in advocating for children: “They are kids and can’t vote, the public’s attention span, which has been on child welfare, is short. And we have to capture the moment or it will go away.” To the roomful of judges and lawyers giving their time to the Bar’s Commission on the Legal Needs of Children, Geraghty said: “There truly is no more noble work that you can be doing than the work you are doing today. You are part of a world community trying to function in a way that is noble and good.”