Publication Date

Winter 2008

Document Type

Article

Abstract

When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of competence and calls for attention to the unique and critical demands of child representation.

While states and the federal government have recognized the need to attend to all of these interests, many have been unwilling to commit the resources necessary to truly meet the full range of interests. The result is a system that creates pressures for and tolerance of mediocre or passive representation, or what one judge has referred to as a "potted plant" theory of representation of child clients. Evaluative reports of appointed counsel indicate that competence has been a significant concern in representation of children. Indeed child advocates themselves have raised concern about competency. In Connecticut, for example, child advocate attorneys filed suit against the state alleging that systematic inadequate representation by court appointed counsel was violating the rights of the children and families involved in child protection cases. That is not to say that all attorneys representing children are anything other than dedicated professionals. For many, however, the system simply does not provide the clarity or resources for long-term quality representation.

This essay explores the dimensions of this problem of competence and diligence in children's representation. First, the practical realities of poor funding and heavy caseloads are described and the ethical obligations of attorneys in these circumstances are explored. Second, the article examines the standards and scope of training requirements being adopted by the states and contrasts these standards to the actual demands of child representation. Finally, the article explores the confused role definitions of attorneys in child welfare representation. The article suggests why that confusion persists and how it may cause attorneys to minimize some of their responsibilities in these cases. The article concludes with some practical suggestions for attorneys in these roles to minimize the pressures toward incomplete representation.

Publication Title

Capital University Law Review

Volume

37

Issue

2

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