In Court, Children are Unseen and Unheard

My 16-year old client – a young woman who had already spent several years in foster care – just wanted to share her story in court. She hoped to tell the judge the ways in which group home staff were mistreating her. She wanted an outlet to share her dreams about what she was going to accomplish after exiting the system.

She craved the opportunity to hear – firsthand – what was happening in her case. Her case was about her. She desired to be a part of it.

Yet, hearing after hearing, the judge refused to let her in. He didn’t want her to miss school. He was worried that the hearings would upset her. He didn’t think it was appropriate for a child to hear adults talking about sensitive issues. He couldn’t be bothered to make sure that someone would bring her to court. So for years, he shut her out of the most important thing happening in her life.

The old English proverb states “children should be seen and not heard.”  My case illustrates how the foster care system often takes this one step further – it asks that children both be unseen and unheard. A national survey of youth in foster care found that less than 15 percent had attended most court hearings. A third had never even attended a single hearing in their case. Chances are if you head to a juvenile court in most parts of the country, you won’t see a kid there.

Data indicates that kids want to come to court, and when they do, their presence improves decision-making. One report found that “[b]eing allowed to attend made youth feel that they were more informed about their life and the experience was worthwhile.” As one youth stated in the report, “Because it’s my life, I want to have a say.”

Erik Pitchal, a former law professor and now judge concluded that “[b]arring exceptional circumstances, youth participation in family court is good for individual youth, their cases and society.”

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

Unsurprisingly, every major child welfare organization – including the American Bar Association, the National Association of Counsel for Children, the Pew Commission, and the National Council of Juvenile and Family Court Judges – have all embraced the presence of youth in court.

Yet the system resists and delivers a double whammy to kids. Not only does it refuse to let them come to court, it also denies kids a right to have lawyers who advocate for what they want.

According to a report published by First Star, a national child advocacy organization, less than half of states give children the assistance of a lawyer who will advocate for what they want, as opposed to only articulating what they believe is in their client’s best interests.

In other states, a volunteer non-lawyer offers opinions on what is good for the kid. And in some states, youth in care will get no counsel at all.

Think about what this means. In most places, a teenager in the foster care system – who undoubtedly has strong views on what her future should look like – would be denied both the right to come to court and the right to a lawyer to advocate for what she wants. Instead, she’d have to learn what happened in court second-hand, after a proceeding in which adults would simply opine on what is best for her. Judges might never know what the youth actually wants. And the system would further disempower a teenager already slipping away.

This past week, the Children’s Advocacy Institute of San Diego, along with lawyers from several firms, filed an important federal lawsuit in Indiana arguing that children in foster care have a constitutional right to a lawyer. According to the complaint, Indiana routinely denies children any type of lawyer in these proceedings. I suspect kids hardly show up to court there as well.

The complaint correctly suggests that a child needs a client-directed attorney “to ensure the child’s views are clearly communicated to the court, to ensure that the reasons for the child’s preference are fully explained, and to ensure that any evidence supporting the alleged best interest is fully examined and tested by a competent attorney.” Success in the lawsuit will be an important first step in making sure that the voices of children are heard in the foster care system.

My law students eventually persuaded the judge to allow our client to appear in court. It helped that the law required it, but the judge wasn’t happy about it. He repeatedly said that if our client was upset by what happened in court, it would be our fault. And when she spoke, he made her feel like she didn’t belong. He made it clear that he didn’t want her there.

But she came – hearing after hearing. She gained confidence. She became more vocal. She transformed into a strong advocate for herself, refusing to compromise her safety and well-being, and refusing to be silenced by the system. About her student-lawyers, she said, “You guys were all I had, the only ones who ever stood up for me, fought for me, and taught me how to fight for myself.”

She was both seen and heard. And in doing so, she defied the odds, refusing to become yet another grim statistic of a kid aging out of foster care who was forced to give up on life.

Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.

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WEBINAR ALERT!

Learn more about the federal rule change to provide legal representation to children and parents involved in the child welfare system in our exclusive webinarA New Era of Funding Family Justice, with Leslie Heimov and Vivek Sankaran on Feb. 21st. Hosted by John Kelly, Editor-in-Chief for The Chronicle of Social Change.

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