In April 2007, a nationwide study — “A Child’s Right to Counsel,” published by First Star — produced a national report card on legal representation for children in abuse and neglect proceedings.1 The study, which conducted an extensive analysis of child representation laws in all 50 states and the District of Columbia, reported that Washington was among the five worst states regarding legal representation for children in dependency proceedings, receiving an “F” grade. Among the top five states were Louisiana, Mississippi and West Virginia.
In recent years, Washington’s foster care system and the children who are in the system’s care have been in the news. Because of increased attention on the plight of foster children in Washington and a report by the Pew Commission on Children in Foster Care,2 the Washington Supreme Court established its own Commission on Children in Foster Care in February 2005 with a goal of improving how courts and child welfare agencies work together for the safety and well-being of children in foster care.3
One way the Commission hoped to achieve this goal was by establishing a workgroup to explore how Washington law might be amended to provide better representation for children in dependency proceedings. Based on recommendations from the workgroup, which included advocates from all areas of the child-welfare community, who had varying interests and desired outcomes, the Commission adopted a recommendation that youth ages 12 and older be appointed attorneys in dependency proceedings. The Commission’s attention to the issue, coupled with Washington’s poor national showing in the First Star report, has prompted a right-to-counsel movement that is gaining momentum.
For many advocates involved in the movement, the goal is to provide all children with someone who can advocate for a child’s stated interests in dependency proceedings, specifically attorneys. The unique functions attorneys provide are varied and include, among other things: spotting legal issues; filing motions, legal briefs and appeals; maintaining an attorney-client relationship with the child (to allow the child to share privileged and confidential communications on case issues) and ensuring a distinct level of trust; assuring that the child’s expressed positions related to the case are effectively presented to the court; and educating the child regarding his/her legal rights in the dependency proceeding, educational issues, benefits upon aging out of care, and other financial benefits. In addition, lawyers for children are required to follow a binding set of ethical rules that create a high standard of care when representing a child.
Those advocating for attorneys for all youth acknowledge that providing counsel in dependency proceedings is not intended to supplant the appointment of a guardian ad litem (GAL) or a Court Appointed Special Advocate (CASA). Indeed, a lawyer for a child is intended to serve in a role that is complementary to the roles of other service providers who are assisting the child.
Advocates for children’s right to counsel point out that under current Washington law, the child is not a party to the dependency proceeding. A child is granted party status via the appointment of a GAL or a CASA.4
Furthermore, even though Washington law requires that (except for “good cause”) a GAL be appointed in all abuse and neglect proceedings, GALs are sometimes not provided because of a lack of resources. In the case of adolescents, this is often due to a lack of resources, coupled with priority given to appointing GALs for infants and children in dependency proceedings.
With respect to appointment of counsel, Washington law does provide that a court may appoint counsel in the limited circumstance when a child is 12 or older and requests legal counsel5 or when the child has no GAL and a party moves for appointment or the court, sua sponte, appoints an attorney.6 No state statute or rule automatically provides an attorney for all children in dependency hearings.
Each county has its own procedure. The Benton-Franklin court appoints a CASA for children 8 or under and an attorney for children 9 or older. In cases where a child has a CASA prior to turning 9, he or she will likely continue to be represented by that CASA. Benton-Franklin also provides that a child 8 or under who has a CASA and requests an attorney will be appointed an attorney, and that if a child is not appointed a CASA, he or she will be appointed an attorney at any age.
In King County, under LJuCR 2.4(a) (Procedure at Initial Shelter Care Hearing), a “child age 12 or older, who appears at the 72-hour hearing may be represented, at this hearing, by Court-appointed counsel regardless of financial status unless the party expressly waives this right or has retained counsel.”
Interestingly, there are a number of proceedings involving children in Washington in which a child has an automatic right to an attorney. These include: Child in Need of Services proceedings, where counsel is appointed upon the filing of the petition;7 At Risk Youth proceedings, where counsel is appointed upon the filing of the petition;8 and in all criminal/delinquency matters. Children also are provided counsel at no cost under a new law that allows a child 12 or older to petition the juvenile court to reinstate the previously terminated parental rights of his or her parent.9
Jim Theofelis, executive director of The Mockingbird Society,10 an advocacy-based organization for children and youth in foster care, put it into perspective when he said, “Most of us parents understand the critical nature of the courtroom enough to never allow a child to enter a courtroom without proper representation even if it would mean taking a second mortgage on our home. Most of us would do this no matter the type of legal proceeding — and I can’t think of proceedings more serious than these, where children and families risk being split up forever. That’s how important this is for kids.”
Indeed, when something this important happens in the life of a child, most parents would take any means necessary to protect and advocate for their child in legal proceedings. Why should the result be any different when the legal proceeding involves a child being taken from his or her home, siblings, school or community?
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Pam Anderson is a member of Van Ness Feldman, P.C.
1 http://www.firststar.org/documents/FIRSTSTARReportCard07.pdf.
2 Information about the Pew Commission and its report is available at http://www.pewfostercare.org.
3 Information about the Commission is available at http://www.courts.wa.gove/committee/?fa=committee.home&committee_ID=50.
4 See RCW § 13.34.100(5).
5 RCW § 13.34.100(6): “If the child requests legal counsel and is age twelve or older ... the court may appoint an attorney to represent the child’s position.” (emphasis added)
6 Washington Court Rule, JuCR 9.2(c)(1).
7 RCW § 13.32A.160(1)(c).
8 RCW § 13.32A.192(1)(c).
9 2007 Wash. Sess. Laws, ch. 413 (known as ESHB 1624) adding a new section to RCW ch. 13.34; the law also permits a child under 12 to petition the juvenile court if good cause is shown.
10 Information about the Mockingbird Society can be found at http://www.mockingbirdsociety.org.
