What you need to know about child representation

Issue November/December 2016 By Karen E. Hennessy

Lawyers representing children in delinquency and child welfare proceedings in juvenile court face unique challenges in providing their clients with the fundamental aspects of legal advocacy, including the foundational element of due process: the right to be heard. Because juvenile court sessions are closed to the public, many attorneys have limited exposure to our practice area and are unaware of how complex and challenging it can be. Our section council decided that it would be beneficial to provide a basic overview of the role of attorneys for children in the juvenile court and the inherent challenges we face in providing zealous legal advocacy to this vulnerable population of clients.

In juvenile court, children are parties to the litigation. As such, the role of the lawyers representing them is quite distinct from that of lawyers representing children in probate and family court where children may be impacted by legal outcomes but are not parties. In that context, there is an emerging discussion about the role and professional obligations of child's counsel. In contrast, the role of child's counsel in juvenile court proceedings has been the subject of scholarly debate for decades and was directly addressed by the Supreme Judicial Court in Care and Protection of Georgette in 2003. As a result of that case, the Supreme Judicial Court referred the issue to its Standing Advisory Committee on the Rules of Professional Conduct citing the need for clarification about the professional obligations of children's attorneys to ensure that children received effective assistance of counsel.

The Standing Advisory Committee ultimately issued amendments to Rule 1.14 of the Massachusetts Rules of Professional Conduct, the rule governing representation of clients of "diminished capacity." Children are considered to be of "diminished capacity" by virtue of their minority. While these changes offered guidance and helped to define our professional obligations to our clients, the burden of meeting them remains on our shoulders.

From the changes to Rule 1.14, we learned that lawyers who represent children must, as far as reasonably possible, maintain a normal attorney-client relationship. This requires that we discern the client's expressed position, counsel the client on the legal implications of that position, negotiate the desired objectives on the client's behalf, maintain attorney-client privilege, and provide zealous advocacy. In delinquency cases a client's age will range from seven to eighteen. In child welfare proceedings a child client's age may range from zero to eighteen, or in limited cases up to twenty-two. A child client's capacity to direct representation is very much dependent upon their developmental stage and may change throughout the representation depending on what age the child is when it begins and how long the case is active.

No matter what their age, children cannot typically express their legal goals in the same way as adults or even as adults of diminished capacity. Lawyers for children must be adept at assessing the child's cognitive capacity, devising a developmentally appropriate framework for the client interview, and translating sophisticated legal concepts into a form that is accessible to the client. We are forced to adapt our legal representation to meet the needs of the client. This means that we must have an array of skills in communicating with children at various stages of development.

In the case of verbal children, the lawyer must begin by having a conversation to determine the child's position. Overcoming the power dynamic inherent in relationships between adults and children is critical to developing a rapport with the client that even approximates the typical attorney-client relationship. Most children have expectations of adults based on their life experience. They may expect that an adult will decide what information to share about them and with whom, disregard their opinion unless it aligns with the adult's, and ultimately make major life decisions for them regardless of their input. The lawyer must be attuned to the context of the child's development, especially if it is marked by repeated systemic involvement, and be prepared to work hard to establish a rapport that will allow the client's true position to emerge. The attorney must tailor the conversation with the client based on the constellation of factors that impact child development. These factors may include: the child's chronological age; school performance; IQ; existing learning disorders; socioeconomic status; early exposure to trauma; prenatal exposure to substances; mental health diagnoses; and cultural background. In child welfare cases, client interviews are even more challenging because the clients have often experienced abuse and neglect resulting in their removal from their parents- a traumatic event in itself. Trauma has a significant impact on a child's development, ability to relate to others, and willingness to share information.

In delinquency and child requiring assistance matters, the vast majority of clients are adolescents. Adolescence is a phase of child development marked by rapid brain growth. Recent studies of adolescent brain development have found that key regions of the brain responsible for decision-making are not fully developed in the teen years. These findings have helped us to understand why adolescence is a phase of child development marked by risk-taking behavior, increased susceptibility to peer influence, and difficulty regulating emotions. The United States Supreme Court has recognized this body of research in decisions such as Roper v. Simmons in 2005 and Graham v. Florida in 2010 which explore the culpability of adolescent offenders. For attorneys attempting to form relationships with adolescent clients this research is useful as the basis for various legal arguments, but is also instructive in how to manage relationships with adolescent clients.

In the case of non-verbal children, the lawyer must conduct a substituted judgment analysis- that is, determine what the child would want if he or she were able to direct the representation. This requires gathering a tremendous amount of information about the context of the child's life including: reviewing social service records; reviewing medical and early intervention records; learning about any existing special needs; understanding cultural connections; observing visits between the child and parent; interviewing past and current caretakers; and sometimes retaining an expert to evaluate the quality of the child's attachments to caregivers. Only after the lawyer has fully studied the child's life circumstances can he or she advance an informed position on the client's behalf. It is in these cases that attorneys for children grapple with some of the more challenging moral and ethical questions because the client is not able to provide instruction but the outcome of the litigation stands to impact the entire course of the client's life.

Challenging ethical and moral issues arise when child clients express a position that the lawyer believes will result in harm to the child. In these instances, the lawyer must rely on both the guidance of Rule 1.14 and on the Performance Standards promulgated by the Committee for Public Counsel Services to determine a course of action. The rules provide for a divergence from the normal attorney-client relationship only in limited instances in which the attorney has determined that the child client is unable to make an adequately considered decision and advocating the child's position would result in substantial harm to the child. In these limited circumstances, the lawyer may advocate the child's stated position, substitute judgment for the child, or ask for the appointment of a guardian ad litem to direct the representation. Diverging from the normal attorney-client relationship is not without consequence to the existing attorney-client relationship. Child clients need to be told what position the attorney is taking in court and the reasons for the attorney's choices. In some cases, it can take a lot of work to repair the relationship with the client and to ensure that the client is willing to share information, including her position, with the lawyer in the future.

From the basic issues of explaining the legal process to wading through ethical quagmires to determine a client's position, this work is challenging at every turn. Each of the elements of legal representation are complicated by the unique needs of this client base. Ultimately, lawyers who represent children have the same obligation as lawyers representing any other clients of diminished capacity - to provide representation that meets the needs posed by their condition so that they may access the legal process and be served by it as effectively as a person not under a disability would. This means we have to be willing to adapt our style of representation to meet the client's needs. Though there are many challenges and pitfalls, the work of ensuring that children's voices are heard by the legal system that was created to serve them is incredibly rewarding.

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