Beyond Paternalism: The Role of Counsel for Children in Abuse and Neglect Proceedings

[Excerpt] “Across the nation, lawyers routinely represent children who enter the juvenile court system. Juvenile court systems typically handle two types of cases: delinquency and dependency. Delinquency refers to those cases where children are accused of wrongdoing, which generally means a criminal offense. Dependency cases involve situations where the child is alleged to be mistreated, i.e. abused or neglected, by parents or guardians. Lawyers are involved in both types of proceedings most traditionally as representatives of the state. Lawyers represent the state and bring forth charges of criminal conduct against the child in delinquency proceedings. Lawyers represent the state and bring forth allegations of abuse and neglect against the parents or guardians of the child in dependency proceedings. In both types of proceedings, lawyers function as advocates for the state’s position. Lawyers are also appointed to represent parents in dependency matters and function as advocates for their clients, by protecting the fundamental rights and interests of parents in these cases where parental rights are directly at issue. The right to counsel for children in juvenile court proceedings is a relatively recent phenomenon. Prior to 1967, children did not have a right to counsel in juvenile court. In 1967, the U.S. Supreme Court in In re Gault held that children in juvenile delinquency proceedings have due process rights, including the right to counsel. A few years later in 1974, Congress enacted the Child Abuse Prevention and Treatment Act (“CAPTA”) which mandated that states appoint representatives for children in abuse and neglect proceedings in order to receive federal child abuse prevention and treatment funding. For over four decades, the roles, duties and responsibilities of the child’s attorney in juvenile court have been the subject of extensive debate and discussion among scholars, judges and practitioners. Currently, a general consensus exists that in delinquency matters, children have a right to counsel who functions as a legal advocate in the traditional sense. However, the right to counsel and the role of the counsel in dependency proceedings continues to be the subject of debate.