Over the past year, there has been increased attention on the right to legal representation for children who have been separated from their families at our borders. Images and stories of young children attending court hearings alone, without an attorney, have been shared by media outlets all over the world.
With this new focus on the legal rights of children comes an opportunity to examine this critical issue within the context of our dependency court system. In a recent article, The Imprint highlighted the October Washington State Supreme Court decision, In the Matter of the Dependency of E.H., which denies children a right to legal representation in their dependency court proceedings.
The Washington Supreme Court got it wrong. All parties – including children – must have access to high-quality legal representation.
Like it or not, the dependency court system is an adversarial system. While there are many points during a child welfare case where collaboration is effective and serves the family well, it cannot be overlooked that families are brought into the court process because the government has stepped into their private lives. In dependency proceedings, the state or county is most often seeking to separate children from their parents – an action that is very rarely welcomed or wanted.
This action has a significant impact on the life of a child, as do the decisions that follow – where the child will live, what contact will continue between the child and parents, siblings and other relatives, whether the child’s educational and medical needs are being met, and whether the child will eventually return home. The child’s life rests in the hands of the court. Without genuine voice – legal representation – in these proceedings, the child is chattel.
The Washington Supreme Court in part denied a right to counsel based on a confounding assumption that, unlike for parents, there is no great potential for a loss of liberty for the child. An attorney might “increase the child’s comfort and agency in the courtroom,” but per the court, there is very little concern of an erroneous abridgement of a child’s liberty.
The Washington Supreme Court got it wrong. To a young child, an unwarranted separation from parents, extended family, community, classmates and other supports may be the greatest deprivation that child will suffer. When separation is necessary due to a finding of abuse or neglect, the harm resulting from erroneous decisions continues, as the court will make many other decisions permanently impacting the child’s well-being: medical and mental health care decisions, school, placement, relationships with extended family and more.
Placement in foster care, whether for a few days or many months, can have a lifelong effect on the child. Countless research studies have documented the trauma and harm of separation. While we maintain that attorneys for both parents and children are critical, the damage to a child, when her rights are left unprotected, cannot be easily undone.
Almost always it is the child who loses everything familiar to her. It is the child who becomes a victim of the very system set up to protect her. Younger children may not understand the concept of temporary separation, and older children become painfully aware of being treated as “less than” when the court denies them something as basic as a lawyer to represent them in court.
In California, the legislature recognized decades ago that children and parents have a right to counsel in a dependency court case. While California can be proud of our statutory scheme, rights alone are not enough. Effective representation requires sufficient resources to ensure manageable caseloads, proper training and supervision, and retention of experienced counsel. As evidenced by the holding in In the Matter of the Dependency of E.H., children and some parents walk into dependency courtrooms every day, all across our country, without a lawyer.
It is inconceivable that life altering decisions are made about them and about their family without a highly skilled lawyer standing by their side. Courts can only make the best decisions when presented with all of the available evidence. When the party with the power, in this case the government, has the advantage of representation, and the disenfranchised family members do not – the scales of justice cannot possibly right themselves.
All but 14 states mandate some form of legal representation for children. Every state mandates legal representation for parents at a hearing to terminate parental rights, but not necessarily at the onset of a case when critical decisions are made that will set a family’s path.
Despite the extraordinary rights at stake, very few states provide the resources to ensure every parent and child has a trained attorney with a manageable caseload at each stage of a dependency proceeding. The government, by contrast, always has publicly funded counsel. This must change.
In 2016, in collaboration with a diverse team of partner organizations, Children’s Law Center of California (CLC), the American Bar Association Center on Children and the Law, the Center for Family Representation, and Casey Family Programs launched the Family Justice Initiative (FJI). FJI’s mission is to ensure every child and every parent has high-quality, multi-disciplinary legal representation when child welfare courts make life-changing decisions about their families.
We must make the investment needed to ensure children have a voice in a system meant to protect them. As expressed by Washington State Supreme Court Justice Mary Yu in her dissent, children are individuals to be heard with their own set of protected rights and interests. We as a nation must stand by this principle.
Leslie Heimov is executive director of the Children’s Law Center of California (CLC). Susan Abrams is director of policy and training at CLC.