Privately Retained Counsel For The Child In Juvenile Court Proceedings

By Zachary Bravos, Esq.
& Roger Kelley, Esq.

Families involved with the legal system as a result of alleged abuse, neglect, or other complaint regarding the care of their children, are subject to complex and often incomprehensible proceedings.  The stakes are high: foster care for the children, the potential of criminal charges, the possible termination of parental rights — in short, the destruction of the family.

In typical juvenile proceedings, there is a judge, a prosecuting attorney, an attorney for each of the parents (either privately retained or court appointed), a Guardian Ad Litem (GAL) for the child, and a court-appointed attorney for the child.  Usually, the same individual fulfills both the role of GAL and the role of attorney for the child.  As a result, the individuals most affected — children — almost never receive independent legal representation.  In order to understand how important it is that the children be represented, a clear understanding of the roles of the different individuals involved is necessary.

The judge acts as the neutral fact finder, the person who ultimately decides if there has been abuse, neglect, or some other basis for the Court's involvement with the family.  The judge, in theory, favors neither side.

The prosecutor, whether known as the State's Attorney, District Attorney, Commonwealth Attorney, or some such similar title, represents the interests of the State.  They advance the position that abuse, neglect, or some other basis for legal intervention into the family exists.

Each of the parents' attorneys, whether retained or appointed, independently represent the interests of the parent, and are guided by the parent's directives and desires.

The GAL, on behalf of the child, argues those positions which he or she decides is in the best interests of the child.  Ironically, the GAL need not consider the child's own wishes.

The appointed counsel for the child occupies an ill-defined position.  Generally, attorneys are accountable to their clients and are obligated to follow their directives when legally permissible.  In the special case of children, this independence, and this loyalty to the client's desires, is compromised.  Like the GAL, a court-appointed attorney for a child must serve what he or she determines is in the child's best interest.  This unique view of the role of court appointed attorneys for children was summarized by an Illinois court:

The responsibility of the court-appointed juvenile counsel, however, is different than that of other court-appointed counsel.  The juvenile counsel must not only protect the juvenile's legal rights but he must also recognize and recommend a disposition in the juvenile's best interest, even when the juvenile himself does not recognize those interests.¹

So it is that a child of sufficient maturity and understanding to participate in juvenile court proceedings may be represented by counsel whose position may be contrary to the child's desires.  Indeed, in some jurisdictions, courts have discretion to exclude the minor from any part or parts of a juvenile proceeding.  As a result, a child might not even be present in court, in person or by independent counsel, when his or her future is determined.  He or she has no guarantee of meaningful input into decisions for foster placement, visitation with their parents, or other vital concerns.  The court-appointed representative is obliged to advance their own subjective position as to what is best for the child.  The child's wishes and desires may never be known because they have no independent counsel to represent their views.  The child may wish to testify or be heard by the court, but are never permitted to do so because the court-appointed representative does not agree.  If the child wants to return home or visit their parents, such desires may never be heard because the child has no independent voice in the proceeding.

Sometimes lip service is paid to the child's wishes:

Although the juvenile's counsel should consider the juvenile's wishes and inform the court of those wishes, the counsel has an obligation to protect the juvenile's best interest.  If protecting a juvenile's best interest requires that the counsel make a recommendation contrary to the juvenile's wishes, then the counsel has ... a "professional responsibility and obligation" to make that recommendation.²

In this legal climate, the role of the independent, privately-retained attorney is to truly represent the child-client, to advise the child- client fully and accurately of his or her rights, to hear and listen to the child-client's wants and directives, and to zealously advance the positions in court that the child-client directs them to take.  In sum, independent counsel gives voice to the child-client.

The right of a child to have their own privately-retained attorney is well established in Illinois and elsewhere.  The United States Supreme Court has long held that minors have a right to counsel in juvenile delinquency proceedings.³  The Supreme Court of Alaska held that the child may retain the attorney of his choice or, alternatively, ask the court to appoint an attorney for him.  The Alaska court cautioned that, in instances where the child has retained counsel, the court should respect the child's choice.⁴  The California Appellate court held that a minor initially represented by appointed counsel is entitled to seek substitution of retained counsel for dependency-related hearings if the minor is competent to choose, and selects competent counsel.⁵  In Illinois the courts have rejected the argument that retained counsel would be improper because they would "simply parrot the child's wishes."  The court noted that it is within the purview of the judge, and not the attorney, to assess the evidence and determine a disposition which truly reflects the child's best interest.⁶

The child's right to counsel of their own choosing is not absolute.  There are concerns that the child be mature and competent enough to make a reasoned choice of counsel.  Moreover, there is always fear that the child has been coerced or manipulated (usually by their parents) into the decision to substitute private counsel for the court-appointed attorney.  Where such concerns arise, a hearing is usually held.  We have been successful in such hearings when the child is of teenage years.  There is often the claim that the parents are paying for counsel and hence have some measure of control.  However, an attorney's obligation to the client is not affected by who pays the bill.

In the real world we have been dismayed at the degree of ignorance that our child-clients have been kept prior to obtaining independent counsel.  They commonly did not know their right to be heard in court, to address the court, to advance their own views, to refuse certain forms of treatment, to exert control over their mental health records and care, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records — in short, to participate meaningfully in a significant proceeding which may permanently affect their future.  They have told us of feeling powerless, confused, overwhelmed, and helpless.  We find the children eager for information, concerned about the events around them, and desperate to understand the process that so seriously affects them.

In our opinion, full participation in juvenile court proceedings by a child of sufficient maturity and understanding, leads to improved outcomes, more just results, and better service to the best interests of the child.  Such participation should be promoted, not discouraged.  The hiring of independent counsel for the child will enhance the child's participation while protecting the child's rights and advancing his or her positions.  Independent counsel for the child must be seriously considered in appropriate cases.

Footnotes

¹ In re K.M.B., 123 Ill.App.3d 645, 462 N.E.2d 1271, 78 Ill. Dec. 917 (4th Dist.1984) [Back]

² In re K.M.B., note 1I, 123 Ill.App.3rd at 648 [Back]

³ In re Gault, 387 U.S. 1, 18 L.Ed. 2d 527, 87 S.Ct. 1428. (1967) [Back]

⁴ Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220 (1975) [Back]

⁵ Akkiko M. v. Superior Court, 163 Cal.App.3d 525, 209 Cal.Rptr. 568 (1985) [Back]