Push to Guarantee Lawyers for Florida Foster Youth Falls Short

An attempt to constitutionally guarantee legal counsel to children removed from their parents in Florida fell short this week, leaving proponents to mull other strategies for providing lawyers to kids in foster care.

The Constitutional Revision Commission, which is convened every 20 years, offers the straightest line to inclusion in the state constitution. Among the proposals under consideration this session was the following:

Every child who has been removed from the custody of his or her parents or a legal guardian by the state due to abuse or neglect, or is otherwise placed in the jurisdiction of the dependency court, has a right to counsel.

Florida already guarantees a guardian ad litem (GAL) to represent each foster youth in court proceedings, but does not require the GAL to be an attorney. Only 10 percent of Florida’s foster youth are represented by an attorney, according to the analysis done by the Florida Bar Association’s Standing Committee on the Legal Needs of Children. There were 39,243 youth in foster care at some point in fiscal 2016, the last year of federal data.

The proposal was projected to cost $20 million in additional annual funding. GAL guarantees are already funded at $50 million for the current fiscal year.

But the Florida Bar analysis projected a net positive impact, an indication that legal representation for foster youth would steer them home more quickly. It forecasted savings of $39 million in “reduced payments for licensed out-of-home care.”

“Long-term savings will also result from the provision of counsel to dependent children by increasing the likelihood that they leave care with a family,” the analysis said.

The proposal was not reported out favorably from the first round, which took place yesterday and is the first hurdle in a difficult process. Proposals reported out favorably must then receive a simple majority vote by the full 37-member commission, and then a super-majority vote of two-thirds.

There are four other paths to amending Florida’s constitution: through law, a citizen’s initiative, a constitutional convention or a budget reform commission.

The federal Child Abuse Prevention and Treatment Act (CAPTA), passed in 1974, requires representation for children in dependency proceedings, but does not require those representatives to be lawyers. But even that guarantee has been compromised by low appropriations for CAPTA and a lack of federal enforcement.

“CAPTA has no credibility,” said Amy Harfeld, national policy director for the Children’s Advocacy Institute (CAI), in an interview with The Chronicle last May. “There is no state in substantial compliance, no meaningful oversight. States are sending in self-certification, and [the Administration on Children and Families] is extremely clear on the fact that they are not under any threat of sanction or penalty.”

In 2011, the American Bar Association adopted a “model act” on representation for children in abuse and neglect cases. It not only supports the guarantee of lawyers, but says that each child should have “client-directed” attorneys to express their wishes, even if those wishes are contradictory to what a guardian might consider the “best interests of the child.”

Print Friendly, PDF & Email

John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1205 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at jkelly@chronicleofsocialchange.org.

1 Comment

  1. Lets be clear: Children in Florida’s dependency court already have attorneys

    By Cindy S. Lederman And Susan Somers

    January 23, 2018 09:51 PM

    We know the public has a heart for abused, abandoned and neglected children. In our work, we’ve met thousands of Floridians who fostered children, adopted them, mentored them and represented their best interests as Guardian ad Litem volunteers.

    That’s why we are asking the public to carefully consider a proposal now before the Constitutional Revision Commission that would amend the state Constitution to establish the right of every child in dependency court to an attorney.

    The public believes that abused children do not have attorneys. But that’s not the case at all.

    CRC Proposal 40 sounds as if it would help vulnerable children who have no legal representation. But in fact those children do have attorneys a Guardian ad Litem (GAL) attorneys appointed by a judge to represent their best interests. Guardian ad Litem attorneys work as part of a three-person team with a GAL volunteer who advocates for the child in every setting, including court, and a case advocate manager who knows local resources and helps the volunteers gain access to services for the children. To clarify: Guardian ad Litem volunteers do not practice law. They are laypeople whose job is to learn all they can about the childs safety, needs and happiness and to be the judges eyes and ears. But it’s the GAL attorney who takes the lead and litigates at each stage of a child’s case.

    In Miami-Dade, the GAL program has 22 attorneys. They are in court every day, filing motions in the best interests of the children they represent. For instance, when children have been placed on psychotropic medication, GAL attorneys review the orders. If they don’t believe a medication is in a child’s best interests, they file an objection. They also file motions to modify a child’s placement, add needed services or file petitions to terminate a parents rights and again, if it is in the child’s best interests. That is their only yardstick.

    Additionally, in Miami-Dade, the Guardian ad Litem office has a ground-breaking program, the Criminal Court Project, which started in 1991, representing children who are victims/witnesses in criminal court cases. Unlike dependency court, the criminal court is not child-focused. And in fact, without our CCP Best Interest attorneys, there would be child victims and child witnesses without meaningful representation in criminal court procedures.

    I, Cindy Lederman, have been a circuit court judge in Miami-Dade County handling dependency cases for more than 25 years. I want to do what is best for children and something that is often difficult to determine. In my experience, lawyers who simply argue to the court what the child wants, without considering what is best for the child, can cause harm to the child. I have seen it too often.

    I had a teenager in my division who was hiding from the court, and his lawyer knew where he was, but refused to tell me because the child did not want me, the judge responsible for his well-being, to know. I have had private attorneys tell their child clients not to engage in needed therapy. My colleagues on the dependency bench almost unanimously agree that lawyers for dependent children must help the court determine what is best for the child, not protect their questionable decisions. That is why the GAL Best Interest attorneys, and the GAL Program as it exists today, are the most invaluable voice in the courtroom.

    We both urge Floridians with a heart for children to approach Proposal 40 as thoughtfully as possible. We fear that this ineffective proposal will result in vulnerable children facing the dependency system with only an attorney being directed by his or her client, a child – and not with a specialized team to truly act in their best interests.

    Cindy S. Lederman is a Miami-Dade circuit court judge. Susan Somers is managing attorney for the Guardian ad Litem Program. Both serve in the 11th judicial circuit.

    Read more here: http://www.miamiherald.com/opinion/op-ed/article196292789.html#storylink=cpy

Comments are closed.