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
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
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.
1 In re K.M.B., 123 Ill.App.3d 645,
462 N.E.2d 1271, 78 Ill. Dec. 917 (4th Dist.1984)
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)
5 Akkiko M. v. Superior Court, 163
Cal.App.3d 525, 209 Cal.Rptr. 568 (1985)
6 In re A.W., 248 Ill.App.3d 971,
618 N.E.2d 729, 188 Ill.Dec. 159 (1st Dist.1993)