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.