by Gay Courter
Until recent times, parents could do anything they wanted to their progeny. In ancient Rome, fathers could legally kill their children because the person who gave life could also take it away. The first child abuse case in the United States was prosecuted in 1894 only after the head of the Society for the Prevention of Cruelty to Animals persuaded a judge that the child, Mary Ellen, was a member of the animal species and thus deserved protection under the cruelty to animal laws. In the landmark Gault decision in 1967, a judge reversed the conviction of a boy accused of making lewd telephone calls who had been sentenced to seven years in a juvenile detention center without being allowed to argue or appeal his case. His victory won minors the same rights as adults to due process. Since then, children’s legal rights have taken a few baby steps forward, then have regressed in an ancient struggle with those who refuse to relinquish total parental authority.
While parents have an abiding personal interest in enjoying the companionship of their children and the state has a compelling interest in the health, welfare, and safety of all its citizens—including children—the child should be entitled to mental, physical, and emotional health, safety, and well-being, and in these days of broken homes and battered babies, that entitlement must supersede the interest of its parents as well as the state.
CHILDREN’S BEST INTERESTS AND WISHES MUST BE GIVEN A VOICE
Article 12 of the Convention of the Rights of the Child (ratified by over 130 nations, but not by the United States) states that children should have the right to express their views freely and be given a meaningful opportunity to be heard, especially in court. With a volunteer or attorney advocate by her side, a child should be able to request a stable, sober parent who will not abuse her and who will at least make an effort to meet her needs or find her additional services. The child must also be legally protected from social service agencies that hide behind paperwork and confidentiality laws to do the minimum for the child, or worse, harm the child further as she is shuffled through the system.
In a 1973 Harvard Educational Review article “Children Under the Law,” Hillary Rodham Clinton wrote that children, like wives, slaves, and Indians, have historically been treated as dependents who are incapable or undeserving of the right to take care of themselves, thus they require social institutions specifically designed to safeguard their position. The legal system of the United States only began to focus on a child’s need to have legal representation during court proceedings after the passage of the Child Abuse Prevention and Treatment Act (CAPTA) in 1974. This legislation mandated that “in every case involving an abused or neglected child which results in a judicial proceeding a Guardian ad Litem shall be appointed to represent the child …” Any state receiving federal money for abuse and neglect services is required to follow this rule, but no guidelines as to who will perform this function are included, nor is federal funding sufficient to support the appointment of an advocate for every child. Although there are now court-appointed special advocates (CASAs) or Guardians ad Litem (GALs) in every state, there are many different interpretations of how this need is best served.
The supreme court of Florida has determined that minors under the law are persons and that constitutional rights do not mature at eighteen, the state-defined age of majority, but they have not yet given children party status in court. Gregory K. did win the right to argue his own case, but this was overturned by the appeals court. Even those people who do not want to see children bringing legal actions in their own name wonder why children’s desires and feelings are not given more consideration by the powers that be. Why, for instance, wasn’t Cory Stevenson asked where he wanted to live when he had to leave the Rose/Perez foster home? All children in foster care should be allowed to participate in decision making about their future and they should be given honest answers to any matters that will affect them. Of course, communicating with a three-year-old will be different than a fifteen-year-old, but at any age a child can be listened to in a way that validates his feelings and, one hopes, elicits his cooperation.
In “Children’s Rights: A Legal Perspective,” (Teacher’s College Press, 1979) Hillary Rodham Clinton addressed the question of when a minor child might be mature enough to be heard. While it is obvious that newborns are incompetent to present their own views, “it is more difficult to prove a twelve-year-old child totally incompetent, and I think impossible to presume the typical sixteen-year-old incompetent.” Yet the law “treats all these children, at their dissimilar stages of life, as incompetent and ignores psychological and social realities.” Whether or not a child can speak for himself yet, the court should always listen to what a child has to say, both on his own as well as through his advocate or legal counsel. Then it is up to the judge to weigh a child’s interests and wishes in view of his unique circumstances—including his age and maturity—and then determine how to rule on the child’s behalf.
Some argue that nobody under eighteen has any idea what is best, as though some maturity surge on a given birthday makes a person more competent than he was the day before. Others arbitrarily select age twelve or fourteen, when actually very young children may be able to state or express what they want. A few very progressive advocates suggest listening to a child of any age, even a toddler, and then making a wise and educated decision taking the child’s statements and feelings into account.
While most people bristle at this concept, I recall our three-year-old son carrying on when he was left with a certain baby-sitter. I had checked this woman out thoroughly and was utterly convinced she was a responsible caretaker. It took many weeks before I saw through her two-faced behavior and realized she was mean and neglectful, and I am thankful this discovery was made before she actually harmed our son. If instead of discounting his complaints I had listened to him, he would have been far better served. On the other hand, adults have extraordinary power to influence what children express, feel, and recall. One side can easily persuade a young child to say something against another caretaker, and recent studies have proven that children can be manipulated to believe certain abuses have taken place that actually did not. Anyone representing a child’s best interests needs to take the time to investigate all claims and arrive at a measured, thoughtful, unemotional, unbiased decision on how to best accommodate that child.
When the guardian program began, judges began appointing attorneys—either paid or pro bono—to the task of representing children. After Judge David Soukup of King County (Seattle), Washington, developed a program in which volunteer advocates were supervised and trained by both attorneys and social workers, as well as represented by an attorney in court, it was endorsed by the National Council of Juvenile and Family Court Judges. Florida was first to pass legislation requiring a statewide program that allows either an attorney or volunteer to represent a child. In some regions an attorney is required by law, but a volunteer may assist that lawyer, while in other states both an attorney and volunteer work on every case. Experts disagree about which model is best and debate continues over who should fund these programs. There have been two studies comparing various advocacy programs (National Evaluation of the Impact of Guardians ad Litem in Child Abuse or Neglect Judicial Proceedings, 1988, and Who Best Represents the Interest of the Child in Court? by John Poertner and Allan Press, 1990). Both determined that volunteers performed as well as attorneys with the exception that there were more adoptions in the cases handled by volunteers. Over and over again it has been shown that volunteers who are able to focus their concern and dedicate their time to a few cases are usually able to interview more people involved with a case, spend more time with the child, and thus make more reliable recommendations to the court.
Attorneys are still an essential part of the legal process, but their professional rules of conduct regarding their relationship with the client become confused when the attorney accepts the Guardian ad Litem role. Often a lawyer feels compelled to represent the child’s wishes rather than what he feels to be in the child’s best int
erests. And attorneys can be caught in conflicts about privileged communications because they are ethically bound not to reveal confidences of any client, whether adult or child. There is no problem if the attorney is hired to represent a child’s wishes, but when the attorney acts as Guardian ad Litem the situation becomes muddled. Also, occasionally the Guardian ad Litem is required to be called as a witness, something an attorney cannot be asked to do. Finally, if Guardians ad Litem learn of any abuse or neglect to the child, they are required to breach confidentiality, while an attorney does not have to do so.
The solution in our district’s program is to have volunteer child advocates who are supervised by professionals and sometimes are represented or advised by attorneys. The volunteer also offers continuity for children through the court process and often many years thereafter, while the attorney generally only provides legal services, but not monitoring or long-term involvement. In every case where I was the Guardian ad Litem, I became the most stable adult in the child’s life. As appalling as it is to consider, the fact is that parents, foster parents, attorneys, caseworkers, and therapists faded in and out of their lives. Only their advocate remained the same and was always there.
One of the most valuable contributions of lay guardians is their independent and objective viewpoint. When I write a report for a child, I do not consider my remuneration, job security, status in an organization, or professional reputation. I cannot lose money. I cannot be sued. The worst that can happen is I won’t be asked to be a volunteer any longer. If the advocate can mask the noise of the disparate parties and reflect solely on what is best for a child, a very untainted—often creative—solution emerges. For years the Colby sisters languished in one impossible situation after another under the “watchful” eye of HRS’s protective services department. Another guardian assigned to the case might also have seen that the three girls needed to be together in a loving home. But there was no clear administrative path to this outcome. An advocate with perspective was the best way to mobilize unrelated community resources rapidly and turn that situation around.
Court administrators are quick to point out the economic value of volunteer programs. When the Florida legislature was thinking of cutting funding for the Guardian ad Litem program, researchers demonstrated the program saved millions of dollars over what it would cost to pay attorneys to represent children in court. But the fact that an area does not currently have a volunteer children’s court advocate program should not be discouraging. New programs continue to be developed and older models are beginning to integrate volunteers. In 1992 the National Court Appointed Special Advocate Association (NCASAA) reported that sixty percent of the programs that use volunteers place them in the capacity of Guardians ad Litem. Other groups use the volunteer as a friend of the court, who makes recommendations but does not have the legal clout of a Guardian ad Litem. A friend of the court is someone who follows a case but cannot insist that the court’s orders are followed.
Once in a while a child might require one advocate to represent his wishes and another to speak for his best interests. For instance, the care of a parent or facility may be suitable in every way, but the child has a strong aversion to it. That child has a right to have his position argued in court by an attorney so that a judge can make the final decision. On the other hand, both attorneys and advocates must guard against behaving like ventriloquists who pretend to be acting either in the child’s best interests or speaking for the child’s wishes, while really using the child to promote their own agendas.
The U.S. Advisory Board on Child Abuse and Neglect believes that children can become “partners in the pursuit of justice.” Who will speak for these children? More and more people must volunteer and take an active interest. Making certain every child in need has an advocate is the first step. With the recent high-profile children’s rights cases in the media, American law is on the cutting edge of children’s rights and most of the western world is watching to see what happens.
CHILDREN HAVE A RIGHT TO LIVE WITH THEIR “PSYCHOLOGICAL PARENT”
The time has come to establish who a child’s psychological parent is and what constitutes a person’s true family. A family begins with a biological basis but flourishes with emotional bonds. The members of a true family make serious attempts to love one another and meet one another’s needs. Yes, the custody, care, and nurturing of the children reside first with the biological parents, but children also are entitled to be protected from abuse, neglect, or exploitation by any adult, as well as to have the right to act independently of parental control under certain selected circumstances. The latter becomes controversial when a fourteen-year-old girl wants an abortion against her parents’ wishes. Yet even those who disagree with a child’s right in this case might be sympathetic if that same girl wanted to defy the beliefs of her parents’ religion if they mandated the end of formal schooling at age fourteen, or side with a child whose parents tried to deny her lifesaving treatments because of their faith. Almost everyone would find some reason to agree that there are times when the manifest best interest of the child might differ from the parents’ wishes. One look at the tragic consequences to the children of the followers of David Koresh or Jim Jones demonstrates this point vividly.
The Florida Constitution declares: “All natural persons are equal before the law and have inalienable rights among which are the right to enjoy and defend life and liberty, to pursue happiness.” In order to protect those rights, then, children must be able to live in surroundings that do not violate their pursuit of happiness. Likewise, we cannot be biased against families simply because of limited economic circumstances or because their family does not function at optimum levels. There is a vast difference between the problems that poverty or misfortune inflict on a family and the sadistic discipline of overly strict parents or the neglect of totally inept caretakers. A genetic connection alone must not be an irrevocable license to allow brutal or incompetent parents to control a child.
Yes, the vast majority of families are much better than the state at raising children, but as Hillary Rodham Clinton wrote in “Children Under the Law,” “the state, representing the community of adults, has the responsibility to intervene in cases of severe emotional deprivation or psychological damage if it is likely that a child’s development will be substantially harmed by his continued presence in the family.” Just as a child must sometimes undergo the pain of surgery to be cured of a dreadful disease, sometimes it is essential to inflict the pain of separation and loss to have a healthy outcome.
In speaking with people about the plight of our youngest citizens and the need for more children’s rights, there is an immediate backlash that imagines that children who are represented independently from their parents will bring frivolous actions against them as a way to acquire more material possessions or to subvert the parents’ ability to discipline them. Protection of individual family values is touted as a reason to halt the interference of the state in family matters. We should, in fact, respect every family’s uniqueness as long as they make a strong attempt to give their children love, care, security, and try to meet their offspring’s essential needs for food and shelter and affection.
There is also the fear that the state will impose standards that do not permit a wide variety of parenting styles and family beliefs or that children will be removed from poor parents and handed over to wealthier ones. Part of the argument used by Gregory K.’s natural mother was that the foster family offered her son financial benefits she could not give him and that they were seducing him with their more affluent lifestyle. This ignores the fact that Gregory K.’s mother behaved irresponsibly for many years and that he had been languishing in foster care for thirty months with no hope of a permanent family on the horizon. For a few dollars she could have maintained some, if tenuous, contact with Gregory K. and could have made a more earnest attempt to keep him in her home.
Almost everyone concerned about families understands that under most circumstances a chi
ld will grow best in his own family, even in a very imperfect family. Rachael Kingsley, Gregory K.’s mother, complained that if some of the money used to keep Gregory in state custody had been given directly to her, she might have been able to care for him properly and would not have had to give him up in the first place. While experts could argue that case forever, it is clear that families in crisis would benefit from a different approach to protecting children at risk. Until recently, $2.3 billion a year was spent nationwide to maintain children in foster care, but only $274 million was allocated to try to keep families together. New legislation provides a $2.5 billion allocation for “family preservation” but does not clarify what constitutes a family. Blind adherence to any one policy must be avoided. Every family’s situation is different. Every case should use only one pure standard: what is in the best interest of that child.
When I was in court waiting for the Colby case to be called, I happened to hear the case of four-year-old Darryl. He limped into court. “Hiya!” he said to anyone who would listen, including the judge.
“Hi, Darryl,” came the response from the bench.
Testimony revealed that Darryl had a life-threatening medical condition. He was placed in foster care because his young, untrained, and poor mother had not yet been educated in how to give him the special care he needed, and she did not have a telephone to call for emergency help.
