Pressures Toward Mediocrity in the Representation of Children

Abstract

Representing children in dependency, adoption or guardianship proceedings requires attention to a variety of interests. Children need a voice: an adviser and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is often called upon to meet all these needs. During the past decade, much effort has been devoted to developing standards of competence and attention to the unique and critical demands of child representation.

While states and the federal government have recognized the need, many have been unwilling to commit the resources to truly meet the full range of interests. The result is a system that creates pressures for and tolerance of mediocre or passive representation, or what one judge has referred to as a “potted plant” theory of representation of child clients. Evaluative reports of appointed counsel indicate that competence has been a significant concern in representation of children.

This essay explores the dimensions of the problem of competence and diligence in children’s representation. First, the practical realities of poor funding and heavy caseloads are described and the ethical obligations of attorneys in these circumstances are explored. Second, the article examines the standards and scope of training requirements being adopted by the states and contrasts these standards to the actual demands of child representation. Finally, the article explores the confused role definitions of attorneys in child welfare representation. The article suggests why that confusion persists and how it may cause attorneys to minimize some of their responsibilities in these cases. The article concludes with some practical suggestions for attorneys in these roles to minimize the pressures toward incomplete representation.

Keywords: Children, Child, Advocacy, Representation, Dependency, Adoption, Guardianship, Guardian ad litem, Standards, Child welfare, Family Law, Professional Responsibility, Ethics

JEL Classification: J12, J13, J15, J18, K10, K40, K41