Group says abused children need their
own lawyers
By Katharine
Webster, Associated Press Writer |
October 7, 2006
CONCORD, N.H. --When foster parents
JoAnn and Kenneth Hamel took in a 2-month old boy who had been
neglected, a judge named a non-lawyer volunteer to serve as the
baby's Court Appointed Special Advocate.
The volunteer, trained and
supported by CASA of New Hampshire, spent countless hours over three
years working with the Hamels and a state caseworker to reunify
Damien, first with his mother, then with his father.
When his father proved unable to
give Damien the care and stability he needed, the state Division of
Children, Youth and Families moved to terminate the father's
parental rights and clear the way for the Hamels to adopt the boy.
Unable to get an appointment with the division's attorney, the
Hamels hired their own lawyer to advise them and protect Damien's
interests.
They're glad they did. The CASA
volunteer "was a true advocate for Damien," but lacked the legal
skills to examine witnesses and make her points in court, JoAnn
Hamel said. The father was entitled by law to a court-appointed
attorney, who was well-prepared compared to the overburdened DCYF
lawyer, she said.
"I think there was a risk, without
an attorney for Damien, that something could have gone wrong," said
Hamel, who believes children need both a CASA and a lawyer. "That
hearing could have gone either way."
New Hampshire is one of 19 states
that does not guarantee lawyers for the victims in child abuse and
neglect cases, but a national group aims to change that.
Children whose futures will be
decided in court should have the same right to a lawyer as their
accused parents, according to the National Conference of
Commissioners on Uniform State Laws, which recommended in July that
states adopt that guarantee.
Ellen Shemitz, president of the New
Hampshire Children's Alliance, agrees.
"You're talking about decisions
that will determine the quality, safety and direction of a child's
life. There's nothing more fundamental," she said. "A child should
be entitled to the same protection of those rights as an adult has."
But some judges and lawyers say
CASAs -- who now represent children in about 70 percent of the
state's abuse and neglect cases -- can spend far more time getting
to know the children, their families and their circumstances.
"I think it is absolutely possible
to over-lawyer any case," said Judge Edwin Kelly, head of the
state's new Family Division courts. "Because CASAs are so capable of
expressing the interests of the child, it's not as though the
child's voice is being unheard."
However, Kelly would like to see a
state law allowing judges to appoint lawyers for children in cases
that are highly complex or hard to prove.
Federal law now requires guardians
for all abused and neglected children, but does not say they must be
lawyers.
Some states require a
lawyer-guardian to represent the child's best interests, whether or
not the child agrees with the recommendations. Others require a
traditional lawyer-advocate. Still others, like New Hampshire, rely
primarily on CASAs, although the state still uses lawyer-guardians
when CASAs are not available.
In New Hampshire, the CASA system
works well because judges give great weight to their recommendations
and testimony, and most child abuse and neglect proceedings are not
very adversarial, said Marcia Sink, president and chief executive of
CASA of New Hampshire.
"There's more a sense of 'Let's
work with this family' and trying to put things back together again
whenever possible and be successfully reunited, so we're not always
looking at this really intense legal battle," Sink said.
In 2004, the latest year for which
complete statistics are available, the state Division of Children,
Youth and Families pursued 334 abuse and neglect cases and filed 99
termination of parental rights cases, said spokesman Greg Moore.
CASAs handle only one or two cases
at a time and can meet informally with children, parents, teachers
and counselors, Sink said. By contrast, even the best
lawyer-guardians have higher caseloads and are restricted in how
many hours they can spend on each case by reimbursement rules for
court-appointed attorneys.
If a case becomes adversarial or
complex -- for example, if the child has medical or immigration
problems -- the group's staff attorney, David Sandberg, can step in
or seek help from several law firms that have volunteered to help,
she said.
Sandberg says in some termination
cases, it is critical to have a lawyer for the child. But otherwise
he prefers CASAs, who are trained to remain open-minded from
beginning to end about what is best for the child.
"If you don your litigation armor,
you begin to give that up and you begin to shut down," he said.
"You're not listening to the evidence with a truly open mind --
you're listening with an eye to what you're going to ask on
cross-examination."
Margaret Hallyburton, a former CASA
turned lawyer, says the roles of advocates and lawyers are different
and that some children can benefit from both.
"As a lay volunteer, you're doing
much more hands-on, more chatting with people on a daily basis ...
here's what's going on in the life of this child," she said. "As an
attorney, you're getting down to what is the decision the judge has
to make at this hearing, what is the information the judge needs to
make that decision, and let me get that information before the
judge."
She thinks the state should
consider requiring lawyers for "mature minors" -- pre-teens and
teens mature enough to articulate their wishes, Hallyburton said.
The opinions of mature minors must be considered by law in other,
similar cases, such as custody battles, adoptions and guardianships,
she said.
In New Hampshire, judges can -- but
are not required to -- appoint a separate lawyer for an older child
whose wishes conflict with the guardian's recommendations: for
example, a 12-year-old girl who wants to stay with her mother and
abusive stepfather, when the CASA recommends foster care.
But the American Bar Association
and Lawyers for Children America say children in all abuse, neglect
and termination proceedings should have lawyers.
Howard Davidson, director of the
American Bar Association's Center on Children and the Law, said
lawyers can do things that CASAs cannot, especially when it's
important to hold a state agency's feet to the fire.
"Lawyers can help get their kids
out of the system faster," he said. "When kids and families aren't
getting the services they need, they can file motions and subpoenas
to question agency representatives."
Hallyburton doubts New Hampshire
will be swayed any time soon.
"I think that there's less
reluctance to appoint attorneys for kids than there is the practical
limitation on the state's willingness to pay for them," she said.
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On the Net:
Model law for representation of
children in abuse and neglect cases:
http://www.law.upenn.edu/bll/ulc/RARCCDA/2006annualmeeting--approvedtext.htm
Lawyers for Children America:
http://www.lawyersforchildrenamerica.org/matriarch/default.asp
ABA national and state reports on
child representation:
http://www.abanet.org/child/cipcatalog/home.html.
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