Moving Forward? The Latest Updates on

the Right to Counsel for Children Movement

Cathy Krebs • Ira Lustbader • Casey TrupinABA Section of Litigation

Children’s Rights Litigation Committee

The 35th National Child Welfare, Juvenile, and Family Law Conference

Thursday, August 16, 20128:00–9:00am

Litigation UpdatesMaking sense of judicial rulings on right to

counsel

Updates on Right to Counsel, August 2012 2

Litigation Updates Right to Legal Representation

• In re MSR/TSR (Washington Supreme Court, 2012) – do children have a universal constitutional right to counsel in termination cases? Other Washington State Appeals

Adoption of Meaghan (Connecticut Supreme Court, 2012): Do children have a constitutional right to counsel in privately brought termination cases, as opposed to those brought by the state?

• In Re S.S. (Florida trial court) – do children have a constitutional right to counsel in termination cases?

• Henry A. (9th Cir. 2012) – do children who have not been appointed GALs have a right to sue under CAPTA?

Updates on Right to Counsel, August 2012 3

Litigation, cont’d Scope of Counsel Protections vs. GAL

• In re L.R. (pending before Florida Court of Appeals, 2012) – does the attorney-client relationship protect appointed attorney from disclosing the child’s location?

• People v. Gabriesheski (Colorado Supreme Court, Oct. 2011) – does Attorney GAL have client-attorney relationship with child?

• In re W.L.H. (pending before Georgia Supreme Court, 2012) – does a child, through court-appointed counsel, have standing to appeal an adverse ruling from a dependency hearing when GAL does not join appeal?Updates on Right to Counsel, August 2012 4

Litigation, cont’d Right to Adequate Legal Representation

• E.T. (9th Cir., Petition of Cert to U.S. Supreme Court) – is there a right to sue in federal court for high caseloads of children’s attorneys (under 1983)?

• Kenny A. implementation (Atlanta, Georgia) – maintaining low caseloads, resources and quality representation after successful exit from consent decrees

Updates on Right to Counsel, August 2012 5

Litigation Barriers Difficulty getting cases to appeal

Private right of action under 1983?

Attorney vs. A-GAL vs. lay GAL

Abstention

Standing and party status Updates on Right to Counsel, August 2012 6

Legislation and Policy ABA Model ActRESOLVED, That the American Bar Association adopts the Model Act

Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings, dated August, 2011.

Section 3(a) The court shall appoint a child’s lawyer for each child who is the subject of a petition in an abuse and neglect proceeding. The appointment of a child’s lawyer must be made as soon as practicable to ensure effective representation of the child and, in any event, before the first court hearing. […](d) The applicable rules of professional conduct and any law

governing the obligations of lawyers to their clients shall apply to such appointed lawyers for children.

(e) The appointed child’s lawyer shall represent the child at all stages of the proceedings, unless otherwise discharged by order of court.

(f) A child’s right to counsel may not be waived at any court proceeding.Updates on Right to Counsel, August 2012 7

Legislation and Policy, cont’d… National Report Card on Legal Representation for Abused & Neglected Children

Highlight of states’ progress or lack of progress

Third Edition: A Child’s Right to Counsel

A National Report Card on Legal Representation for Abused &

Neglected Children

Updates on Right to Counsel, August 2012 8

Legislation and Policy, cont’d… Child Abuse Prevention and

Treatment Act (CAPTA) of 1974P.L. 93-247• Enacted January 31, 1974• Purpose: To provide financial assistance for

a demonstration program for the prevention, identification, and treatment of child abuse and neglect

Updates on Right to Counsel, August 2012 9

Legislation and Policy, cont’d… (CAPTA) cont’d • “. . .in every case involving a victim of child abuse or

neglect . . . a guardian ad litem, who has received training appropriate to the role . . . and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings.” 42 U.S.C. 5106a(b)(2)(B)(xiii) (emphasis added)

Amending CAPTA Changes to state laws

Updates on Right to Counsel, August 2012 10

Legislation and Policy Challenges Cost Outcomes: Proving value of attorneys

• Child outcomes• Due process outcomes• Challenges in measurement• Showing causation or even correlations • Utility versus undermining rights

Role

Updates on Right to Counsel, August 2012 11

Collaborations and Next Steps QIC-ChildRep

• National Quality Improvement Center on the Representation of Children in the Child Welfare System: www.improvechildrep.org

Outcomes discussions Symposia

• NOVA symposium 2012: http://nsulaw.nova.edu/spotlights/nationalsymposium.cfm

• University of Washington, Summer 2013

RTC monthly calls and opportunitiesUpdates on Right to Counsel, August 2012 12

Collaborations and Next Steps Strengths

• A growing, more responsive community of RTC advocates

Challenges• Litigation challenges• State and federal economic/legislative

priorities during a recession• Perceptions/misperceptions of lawyer

quality• Attorney/CASA roles and distinctions• Views on linking outcomes to RTC advocacy

Updates on Right to Counsel, August 2012 13

Join the Movement! Join the Right to Counsel Strategy

Group – coalition of national advocates who share information through a list serve and monthly calls.

Send in a short narrative of a case illustrating how a lawyer made a difference in a child’s life.

Cathy.Krebs@americanbar.orgUpdates on Right to Counsel, August 2012 14

Contact info Cathy Krebs (202) 547-3060cathy.krebs@americanbar.orgwww.apps.americanbar.org/litigation/committees/childrights/

Ira Lustbader (212) 683-2210 ilustbader@childrensrights.org www.childrensrights.org

Casey Trupin (206) 287-9665casey.trupin@columbialegal.orgwww.columbialegal.org

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