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Child’s Right to Counsel 
in Dependency 
Proceedings 
Georgia Child Welfare Legal Academy 
April 16, 2013 
Presented by: 
...
Children Need a Lawyer 
Abused, neglected and abandoned children are removed from their 
families each day and plunged int...
Lawyers Improve Outcomes 
for Children 
Children who have lawyers in dependency matters: 
 Reach permanency sooner 
 Tra...
Representing the Child
Representing the Child 
The term 'child's attorney' means a lawyer who provides legal services for a child and 
who owes t...
Georgia’s Models of Representation 
Best Interest 
Client-Directed 
Dual-Role
Best Interest ~ Pros & Cons 
Best Interest – Attorney represents the “best interest” of 
the child vs. the child’s expres...
Client-Directed ~ Pros & Cons 
Client-Directed – Attorney represents the child’s 
expressed wishes. Child-client directs ...
Client-Directed Representation 
 ABA STANDARDS OF PRACTICE FOR LAWYERS WHO 
REPRESENT CHILDREN IN ABUSE & NEGLECT CASES, ...
Dual-Role ~ Pros & Cons 
Dual-Role – Attorney represents both the child’s position 
and best interest. If conflict arises...
New Juvenile Code 
 O.C.G.A. § 15-11-104 
 (b) An attorney for an alleged dependent child may serve as such 
child's gua...
Other Models 
Two Distinct Lawyers Model 
Bright Light Test Model
Which Model is “Best”? 
Those advocating the traditional attorney approach 
necessarily exclude children too young to spea...
In Practice 
 Counseling client is key 
 Child’s voice and wishes should be ever present 
 Child’s circumstances/positi...
Model vs. Quality 
Some authors consider the actual percentage of cases in 
which a child’s best interests and expressed w...
Quality ~ Duties of a Child Attorney 
 Independently investigate 
 Maintain regular in-person client contact 
 Actively...
Kenny A ~ Attorney Duties 
Child Advocate Attorneys, in each instance of representing a Class Member, shall 
have the foll...
Rights of the Child and Duties 
of the Child’s Lawyer
Rights of the Child and Duties of The Child’s 
Lawyer 
 The child is a party, with full rights to participate in the liti...
Rule 1.14 
 RULE 1.14 CLIENT WITH DIMINISHED CAPACITY 
“a. When a client's capacity to make adequately considered decisio...
Rule 1.2 
Regardless of the model of representation, the attorney-client relationship 
causes all ethical and professional...
Formal Advisory Opinion 10-2 
 Issued by the Formal Advisory Opinion Board of the State Bar 
of Georgia, October 14, 2010...
Formal Advisory Opinion 10-2 and 
the New Juvenile Code 
 FAO 10-2 remains very relevant; attorney for child also may ser...
Unique Challenges in Representing Children in 
Deprivation Cases 
 Judge interviews client in chambers without child’s at...
Right to Counsel – Before WLH 
and JCW
Child’s Status as a Party – Pre WLH & JCW 
TWO PIECES: 
 General law defining who is a party: 
 A real party in interest...
Child’s Right to Counsel – Authority under 
Current Law 
GEORGIA 
 In TPR, right to counsel is statutory. “In any proceed...
Standing
Juvenile Code and the CPA 
 Juvenile Code has its own GAL code section: O.C.G.A. § 15-11-9: 
(b) The court at any stage o...
The Cross-Over 
The result of applying the CPA to juvenile practice is: 
“Pursuant to OCGA § [15-11-98] the child himself...
Prior to WLH & JCW – Child’s Standing to Appeal 
Through ….
Prior to WLH & JCW – Child’s Standing
TWO CASES 
 In the Interest of W.L.H., (Ga., S12G1049, March 4, 
2013) (child has no standing to appeal) 
 In the Intere...
In the Interest of W.L.H., (Ga., 
S12G1049, March 4, 2013) 
“In this case, we granted an application for certiorari 
from ...
In the Interest of W.L.H., 
(Ga., S12G1049, March 4, 2013) 
Summary: 
(1)W.L.H. appealed the deprivation finding to the 
C...
Segue to In the Interest of W.L.H., 314 Ga. 
App. 185 (2012) 
Unique Circumstances of W.L.H.: 
(1)“With the exception of c...
In the Interest of W.L.H., (Ga., S12G1049, 
March 4, 2013) 
THE HUNSTEIN, DOWNS DISSENT!!! 
“In an opinion that disregards...
In the Interest of W.L.H., (Ga., 
S12G1049, March 4, 2013) 
THE HUNSTEIN, DOWNS DISSENT!!! 
“The majority opinion fails to...
 In the Interest of J.C.W., 318 Ga. App. 772 (2012) 
Overview of the Case: 
Infant twins represented by the Fulton County...
In the Interest of J.C.W., 318 Ga. App. 772 (2012) 
“We first address the mother’s contention that the twins 
lack standin...
In the Interest of J.C.W., 318 Ga. App. 772 (2012) 
“In this case, it is undisputed that the children do not 
have a court...
In the Interest of J.C.W., 318 Ga. App. 772 (2012) 
“Now that the issue is squarely before us, we are 
reluctant to conclu...
In the Interest of J.C.W., 318 Ga. App. 772 (2012) 
“Dismissing the children’s appeal under these 
particular facts and ci...
Where Are We Now? 
 A13A0763. IN THE INTEREST OF A.D.P. AND P.A.P, 
CHILDREN (Pending). 
 “In light of the Supreme Court...
New O.C.G.A. § 15-11-2 (52) – 
CHILD IS A PARTY 
 (52) 'Party' means the state, a child, parent, guardian, legal 
custodi...
New O.C.G.A. § 15-11-19 – 
RIGHTS AT TRIAL 
 (a) A party has the right to be present, to be heard, to present 
evidence m...
New O.C.G.A. § 15-11-103 – 
ATTORNEY FOR CHILD 
 (a) A child and any other party to a proceeding under this 
article shal...
New O.C.G.A. § 15-11-103 – 
ATTORNEY FOR CHILD 
 (d) If an attorney has been appointed to represent a child in a prior 
p...
New O.C.G.A. § 15-11-104 – 
DEPENDENCY GAL (“SHALL”) 
 (a) The court shall appoint a guardian ad litem for an alleged 
de...
QUESTIONS/DISCUSSION 
From the Audience
QUESTIONS/DISCUSSION 
 From an email… 
 If a child has a dual role attorney, who believes the child's 
directives are no...
QUESTIONS/DISCUSSION 
 From an email… 
 If the child has a separate attorney and GAL, who 
disagree about whether an app...
CONTACT INFORMATION 
Willie J. Lovett, Jr., J.D., LL.M., CWLS, Director Trenny Stovall, J.D., Director 
Fulton County Offi...
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Child's Right to Counsel in Dependency Proceedings

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This presentation explores the rights of children of abuse, neglect, and abandonment to be represented in juvenile court and receive zealous advocacy on his/her behalf. Models of representation are addressed and the impact of the Kenny A. v. Perdue class action lawsuit on attorneys' duties in providing counsel to children.

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Child's Right to Counsel in Dependency Proceedings

  1. 1. Child’s Right to Counsel in Dependency Proceedings Georgia Child Welfare Legal Academy April 16, 2013 Presented by: Willie J. Lovett, Jr., J.D., LL.M., CWLS-Director, Fulton County Office of the Child Attorney Trenny Stovall, J.D.-Director, DeKalb County Child Advocacy Center Aimee E. Stowe, J.D., Appellate Attorney, DeKalb County Child Advocacy Center
  2. 2. Children Need a Lawyer Abused, neglected and abandoned children are removed from their families each day and plunged into an under resourced and overburdened dependency system which strives to serve their best interests. To be empowered, children need more than just the protection of well-meaning adults; they need a voice in the critical decisions that will decide their future. They need a lawyer to advocate among the courtroom of lawyers representing the many other parties trying to be heard by a judge. The judge needs the child's perspective alongside those of the other parties to determine what the best interests of a child are. When the state has exercised its ultimate power to strip children from their families, children need a champion. Children need a lawyer. ABA Section of Litigation-Children’s Rights Litigation Committee
  3. 3. Lawyers Improve Outcomes for Children Children who have lawyers in dependency matters:  Reach permanency sooner  Transition to adulthood more successfully  Receive more comprehensive intervention services  Are more likely to participate in, understand and accept the outcomes of court proceedings
  4. 4. Representing the Child
  5. 5. Representing the Child The term 'child's attorney' means a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client. The child's attorney should elicit the child's preferences in a developmentally appropriate manner, advise the child, and provide guidance. The child's attorney should represent the child's expressed preferences and follow the child's direction throughout the course of litigation. To the extent that a child cannot express a preference, the child's attorney shall make a good faith effort to determine the child's wishes and advocate accordingly or request appointment of a guardian ad litem. To the extent that a child does not or will not express a preference about particular issues, the child's attorney should determine and advocate the child's legal interests. If the child's attorney determines that the child‘s expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the lawyer's opinion of what would be in the child's interests), the lawyer may request appointment of a separate guardian ad litem and continue to represent the child’s expressed preference, unless the child's position is prohibited by law or without any factual foundation.“ ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996)
  6. 6. Georgia’s Models of Representation Best Interest Client-Directed Dual-Role
  7. 7. Best Interest ~ Pros & Cons Best Interest – Attorney represents the “best interest” of the child vs. the child’s expressed wishes. Pros  Non-verbal child or child who are unable/unwilling to express goals/direct litigation  Avoids pressures of requiring children to make difficult decisions that they might not be developmentally or emotionally equipped to make  Allows attorney to provide court with comprehensive information for “Best Interest” determination Cons  Child’s wishes may not be conveyed to the court  Child’s valuable opinion as to her own best interest may not be considered  Allows broad discretion by attorney in evaluating “best interest” without adequate training
  8. 8. Client-Directed ~ Pros & Cons Client-Directed – Attorney represents the child’s expressed wishes. Child-client directs litigation. GAL may be appointed. Pros  Empowers and engages child in the dependency proceedings  Ensures that child’s wishes and goals are conveyed to the court  Rules of Ethics apply (confidentiality, loyalty) Cons  Non-verbal and young children who may not be able to “direct” litigation and older children may make decisions that are not in their best interests.  Some children may not have the capacity or willingness to form ‘considered’ wishes  Complexities of “substituted judgment”
  9. 9. Client-Directed Representation  ABA STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE & NEGLECT CASES, (NACC Revised Version, 1999)  Focus on child-client’s expressed wishes  Exercise “substituted judgment”
  10. 10. Dual-Role ~ Pros & Cons Dual-Role – Attorney represents both the child’s position and best interest. If conflict arises, a separate guardian ad litem must be appointed. Pros  Empowers and engages child in the dependency proceedings  Ensures that child’s wishes, goals, and best interest recommendations are conveyed  Ongoing conflict analysis ensures that child’s wishes and best interest are protected  Rules of Ethics apply Cons  Some children may not have the capacity or willingness to form ‘considered’ wishes  Complexities of “substituted judgment” / Best Interest analysis  Courts may not acknowledge distinct roles, duties or conflicts  Conflict analysis
  11. 11. New Juvenile Code  O.C.G.A. § 15-11-104  (b) An attorney for an alleged dependent child may serve as such child's guardian ad litem unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.
  12. 12. Other Models Two Distinct Lawyers Model Bright Light Test Model
  13. 13. Which Model is “Best”? Those advocating the traditional attorney approach necessarily exclude children too young to speak, and most require that the children be old enough to engage in a rational decision-making process about the particular issue in question. Those advocating the guardian ad litem role for most children, generally still concede that at some age—at least in the late teenage years—children should be able to direct their counsel, on some, if not all, issues. Donald N. Duquette, Two Distinct Roles/Bright Line Test, 6 Nev. L.J. 1240 (2006)
  14. 14. In Practice  Counseling client is key  Child’s voice and wishes should be ever present  Child’s circumstances/position not attorney’s values should guide  Child’s Best Interest is relevant
  15. 15. Model vs. Quality Some authors consider the actual percentage of cases in which a child’s best interests and expressed wishes conflict to be relatively small and many warn against a preoccupation with the subtleties of the child’s voice in directing the attorney at the expense of exploring other dimensions of quality attorney practice. Gerard Glynn, The Child Abuse Prevention and Treatment Act—Promoting the Unauthorized Practice of Law, 9 J.L. & Fam. Stud. 53, 54
  16. 16. Quality ~ Duties of a Child Attorney  Independently investigate  Maintain regular in-person client contact  Actively participate in litigation (including appeals)  File and respond to motions and pleadings  Ensure clients presence in court  Advocate for client with external stakeholder  Monitor compliance of parties with court’s orders and plans  Assess clients needs and advocate for intervention resources  Set aside personal values, opinions, biases and standards  Communicate with child in developmentally appropriate way
  17. 17. Kenny A ~ Attorney Duties Child Advocate Attorneys, in each instance of representing a Class Member, shall have the following responsibilities:  1) To prepare for, attend and participate in all court-ordered, judicial hearings and proceedings; to stay as reasonably informed as possible of the existence and outcome of non-judicial reviews, meetings and conferences; and to attend non-judicial reviews, meetings, and conferences when necessary.  2) To prepare and file motions and responses to motions.  3) To be aware of and resolve potential and actual professional conflicts of interest.  4) To investigate matters relevant to judicial proceedings, including engaging in the formal and informal discovery process.  5) To establish and maintain an attorney-client relationship with each Class Member client and to maintain such contacts with the client as are necessary to ensure adequate and effective legal representation.  6) To maintain contacts with social workers, service providers and family members.  7) To monitor the implementation of Juvenile Court orders relating to the child, to raise issues of non-compliance, and to advocate the child's best interests with the Court and other judicial decision-makers.  8) To participate in settlement negotiations as necessary.  9) To prepare, file and participate in appeals affecting the legal interests of clients. Barton Child Law and Policy Clinic – Summary of DeKalb County Kenny A Settlement
  18. 18. Rights of the Child and Duties of the Child’s Lawyer
  19. 19. Rights of the Child and Duties of The Child’s Lawyer  The child is a party, with full rights to participate in the litigation. O.C.G.A. § 15-11-7(a). “A party is entitled to the opportunity to introduce evidence and otherwise be heard in his or her own behalf and to cross-examine adverse witnesses.”  Outside the deprivation context, case law provides that even litigants with diminished capacity have the right to be present for trial. Kesterson v. Jarrett, 317 Ga. App. 439 (2012).  So, that means as the child’s lawyer, you are bound all ethical and professional rules.  Some rules to highlight:  1.14  1.2
  20. 20. Rule 1.14  RULE 1.14 CLIENT WITH DIMINISHED CAPACITY “a. When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  Comment 1 “[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severly [sic] incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished mental capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.”
  21. 21. Rule 1.2 Regardless of the model of representation, the attorney-client relationship causes all ethical and professional rules to apply; hence, Rule 1.2 applies as well.  RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER “a. Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter…”  Comment 4 “[4] In a case in which the client appears to be suffering from diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.”
  22. 22. Formal Advisory Opinion 10-2  Issued by the Formal Advisory Opinion Board of the State Bar of Georgia, October 14, 2010; unanimously approved by the Supreme Court of Georgia, January 9, 2012. “When it becomes clear that there is an irreconcilable conflict between the child's wishes and the attorney's considered opinion of the child's best interests, the attorney must withdraw from his or her role as the child's guardian ad litem.”
  23. 23. Formal Advisory Opinion 10-2 and the New Juvenile Code  FAO 10-2 remains very relevant; attorney for child also may serve as GAL for child in dependency and TPR cases  In dependency proceedings (GAL must be appointed): O.C.G.A. § 15-11-104 (b) An attorney for an alleged dependent child may serve as such child's guardian ad litem unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.  In TPRs (GAL may be appointed): O.C.G.A. § 15-11-262 (d) The court may appoint a guardian ad litem for a child in a termination proceeding … such guardian ad litem may be the same person as the child's attorney unless or until there is a conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.
  24. 24. Unique Challenges in Representing Children in Deprivation Cases  Judge interviews client in chambers without child’s attorney or opposing counsel’s presence  Judge excluds client from the courtroom  Denying motions to withdraw when conflicts arise or requiring attorney to disclose nature of conflict  Same lawyer is appointed to represent teen mother and her child who are both in foster care (conflict of interest)  Same lawyer is appointed to represent foster child of mother (former client) who was previously in foster care.  Same lawyer is appointed to represent sibling groups when children’s interests are divergent – adversely and irreconcilably
  25. 25. Right to Counsel – Before WLH and JCW
  26. 26. Child’s Status as a Party – Pre WLH & JCW TWO PIECES:  General law defining who is a party:  A real party in interest is the person who, by the substantive governing law, has the right sought to be enforced. Hadley v. Countrywide Home Loans, Inc., 315 Ga. App. 349, 352 (2012).  In a deprivation action, the child’s rights are the “constitutional right to protection of his or her person” and “fundamental liberty interests in health, safety, and family integrity,” as well as physical liberty. Clark v. Wade, 273 Ga. App. 587, 597 (2001); Kenny A. v. Perdue, 356 F. Supp. 2d. 1353, 1360-1361 (N.D. Ga. 2005).  Juvenile law:  “Under our juvenile code, all parties, including the child, should be represented by an attorney.” McBurrough v. Dep't of Human Res., 150 Ga. App. 130, 131 (1979).  O.C.G.A. § 15-11-6 “(b) Right to legal representation. Except as otherwise provided under this article, a party is entitled to representation by legal counsel at all stages of any proceedings alleging delinquency, unruliness, incorrigibility, or deprivation and if, as an indigent person, a party is unable to employ counsel, he or she is entitled to have the court provide counsel for him or her. If a party appears without counsel, the court shall ascertain whether such party knows of his or her right to counsel and to be provided with counsel by the court if he or she is an indigent person. The court may continue the proceeding to enable a party to obtain counsel and shall provide counsel for an unrepresented indigent person upon the request of such a person. Counsel must be provided for a child not represented by the child's parent, guardian, or custodian. If the interests of two or more parties conflict, separate counsel shall be provided for each of them.”
  27. 27. Child’s Right to Counsel – Authority under Current Law GEORGIA  In TPR, right to counsel is statutory. “In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as the child's counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child's counsel.” O.C.G.A. § 15-11-98(a).  In deprivation cases, same cites as above, for party status: O.C.G.A. § 15-11-6 and McBurrough v. Dep't of Human Res., 150 Ga. App. 130, 131 (1979).  Persuasive authority: constitutional right to counsel “Even if there were not a statutory right to counsel for children in deprivation cases and TPR proceedings, the Court concludes that such a right is guaranteed under the Due Process Clause of the Georgia Constitution, Art. I, § 1, ¶ 1.” Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1359 (N.D. Ga. 2005). FEDERAL  CAPTA -- “[I]n every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings--(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and(II) to make recommendations to the court concerning the best interests of the child…” 42 U.S.C. § 5106a(b)(2)(A)(xiii).
  28. 28. Standing
  29. 29. Juvenile Code and the CPA  Juvenile Code has its own GAL code section: O.C.G.A. § 15-11-9: (b) The court at any stage of a proceeding under this article, on application of a party or on its own motion, shall appoint a guardian ad litem for a child who is a party to the proceeding if the child has no parent, guardian, or custodian appearing on the child's behalf or if the interests of the parent, guardian, or custodian appearing on the child's behalf conflict with the child's interests or in any other case in which the interests of the child require a guardian. A party to the proceeding or the employee or representative of a party to the proceeding shall not be appointed. In deprivation cases, a person appointed as a child's guardian ad litem must have received before the appointment training appropriate to the role that is administered or approved by the Office of the Child Advocate and may be an attorney or court appointed special advocate, or both. For attorneys, the preappointment training required pursuant to this Code section shall be satisfied within attorneys' existing continuing legal education obligations and shall not require attorneys to complete additional training hours in addition to those currently required by the State Bar of Georgia. The Office of the Child Advocate shall exempt from the training required by this Code section attorneys who have practiced as guardians ad litem in juvenile court deprivation proceedings for three or more years and, when such determination is made by the court, have demonstrated a proficiency in child representation.  The CASA code section breaks down the duties of a CASA volunteer. O.C.G.A. § 15-11-9.1.  The Civil Practice Act (“CPA”) also has a GAL section at § 9-11-17 (c): “(c) Infants or incompetent persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. No next friend shall be permitted to receive the proceeds of any personal action, in the name and on behalf of an infant, or incompetent person, until such next friend shall have entered into a sufficient bond to the Governor, for the use of the infant and the infant's representatives, conditioned well and fully to account for and concerning such trust, which bond may be sued on by order of the court in the name of the Governor and for the use of the infant. Such bond shall be approved by the court in which the action is commenced and such approval shall be filed in such clerk's office.”  The CPA does not apply to juvenile court practice. In the Interest of T.M.M.L., 313 Ga. App. 638, 639 (2012).
  30. 30. The Cross-Over The result of applying the CPA to juvenile practice is: “Pursuant to OCGA § [15-11-98] the child himself is, in effect, made a party to an action to terminate his parent's or parents' parental rights. See In re L.L.B., 256 Ga. 768, 353 S.E.2d 507 (1987). Accordingly, appellant has standing, through his duly appointed attorney and guardian ad litem, to bring this appeal.” In Interest of G.K.J., 187 Ga. App. 443, 370 (1988). Where, as here, the court does appoint a guardian ad litem to represent the minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. Miller v. Rieser, 213 Ga. App. 683, 690, 446 S.E.2d 233, 238 (1994)
  31. 31. Prior to WLH & JCW – Child’s Standing to Appeal Through ….
  32. 32. Prior to WLH & JCW – Child’s Standing
  33. 33. TWO CASES  In the Interest of W.L.H., (Ga., S12G1049, March 4, 2013) (child has no standing to appeal)  In the Interest of J.C.W., 318 Ga. App. 772 (2012) (children have standing to appeal)
  34. 34. In the Interest of W.L.H., (Ga., S12G1049, March 4, 2013) “In this case, we granted an application for certiorari from the Court of Appeals’ decision in In re: W.L.H., 314 Ga. App. 185 (2012) to determine whether a child in a deprivation action has standing to appeal when the child is represented by counsel and the guardian ad litem chooses not to appeal.” “Because the guardian ad litem is the legal protector of a child’s best interests in deprivation proceedings, we find that a child lacks standing to appeal a deprivation ruling except through a guardian ad litem.”
  35. 35. In the Interest of W.L.H., (Ga., S12G1049, March 4, 2013) Summary: (1)W.L.H. appealed the deprivation finding to the Court of Appeals through his child attorney; (2)Neither W.L.H.’s legal guardians nor his guardian ad litem appealed the deprivation finding (guardian opposed the appeal); (3)On appeal, W.L.H. only challenged the trial court’s due process rights; (4)Merits of the case never reached, as the Court of Appeals held, sua sponte: “we conclude the child lacks standing to appeal without the aid of a guardian or next friend.” 314 Ga. App. at 187.
  36. 36. Segue to In the Interest of W.L.H., 314 Ga. App. 185 (2012) Unique Circumstances of W.L.H.: (1)“With the exception of criminal and delinquency cases, we find no authority for an unemancipated minor in a deprivation action, even if represented by counsel, to appeal without the aid of a guardian or next friend.” But see (i.e., no longer true), In the Interest of J.C.W., 318 Ga. App. 772 (2012) (children have standing to appeal without a guardian ad litem because they are the real parties at interest). (2)“And here, the child has appealed despite the fact that his legal guardians have not appealed and his court-appointed guardian ad litem, duty bound to act on the child’s best interests, has filed a brief actually opposing the child’s appeal.” 314 Ga. App. at 187.
  37. 37. In the Interest of W.L.H., (Ga., S12G1049, March 4, 2013) THE HUNSTEIN, DOWNS DISSENT!!! “In an opinion that disregards the child’s express wishes, offers insufficient legal analysis, and fails to provide needed guidance for our juvenile courts, the majority opinion holds that a community volunteer serving as the guardian ad litem is the only person who can appeal on behalf of a child in a deprivation action, regardless of the child’s age, the judgment of the child’s attorney, or any other circumstances.”
  38. 38. In the Interest of W.L.H., (Ga., S12G1049, March 4, 2013) THE HUNSTEIN, DOWNS DISSENT!!! “The majority opinion fails to acknowledge differences that exist in child representation in the state and makes the role of the child’s attorney in deprivation actions subservient to a lay guardian ad litem. Because the juvenile in this deprivation action was a party represented by legal counsel as provided for by state law, I would hold that the 12- year-old had standing to appeal the trial court’s finding that he was deprived.”
  39. 39.  In the Interest of J.C.W., 318 Ga. App. 772 (2012) Overview of the Case: Infant twins represented by the Fulton County Office of the Child Attorney appealed a juvenile court order awarding long-term custody until their 18th birthday to their maternal aunt and uncle. Parent’s Attorney moved the Court of Appeals to dismiss the appeal because the twins lacked standing to appeal.
  40. 40. In the Interest of J.C.W., 318 Ga. App. 772 (2012) “We first address the mother’s contention that the twins lack standing to appeal in the absence of an appointed guardian ad litem. In In the Interest of W.L.H., 314 Ga. App. 185 (2012), cert. granted 2012 Ga. LEXIS 562 (Case No. S12G1049, May 29, 2012), we held that a child could not file an appeal from a deprivation order through a court-appointed attorney acting as the child’s counsel. We reasoned that a child cannot ‘appeal without the aid of a guardian or next friend.’ The facts presented in W.L.H., however, differ from those presented here. In W.L.H., the child had both a guardian ad litem and an attorney, and the guardian ad litem filed a brief opposing the child’s appeal brought by his attorney.”
  41. 41. In the Interest of J.C.W., 318 Ga. App. 772 (2012) “In this case, it is undisputed that the children do not have a court-appointed guardian and that they were represented below by the Fulton County Office of Child Attorney, which filed this appeal on their behalf. Our holding in W.L.H. is therefore factually distinguishable because there is no conflict between a guardian ad litem and an attorney regarding whether an appeal should be pursued on the children’s behalf. Additionally, while we noted in W.L.H. that we could ‘find no authority for an unemancipated minor in a deprivation action, even if represented by counsel, to appeal without the aid of a guardian or next friend,’ we did not so hold.”
  42. 42. In the Interest of J.C.W., 318 Ga. App. 772 (2012) “Now that the issue is squarely before us, we are reluctant to conclude that the children in this case lack standing to appeal through their attorney. It cannot be questioned that the children are real parties in interest whose lives will be directly affected by the juvenile court’s decision regarding custody until their 18th birthday under O.C.G.A. § 15-11-58(i)(1). While the children do not have a guardian available to contest the juvenile court’s ruling on their behalf, they do have an attorney who has advocated on their behalf in juvenile court and now seeks to do the same on appeal.”
  43. 43. In the Interest of J.C.W., 318 Ga. App. 772 (2012) “Dismissing the children’s appeal under these particular facts and circumstances would be a miscarriage of justice. We therefore deny the mother’s request to dismiss this case based upon the children’s lack of standing, and we find that the children’s attorney may bring this appeal on their behalf as there is no other representative available to do so. We emphasize that this holding is limited to the particular facts and circumstances of this case.”
  44. 44. Where Are We Now?  A13A0763. IN THE INTEREST OF A.D.P. AND P.A.P, CHILDREN (Pending).  “In light of the Supreme Court of Georgia’s recent decision, In the Interest of W.L.H., a child, S12G1049, decided March 4, 2013, we are removing this case from the March 13, 2013 oral-argument calendar. We invite the parties to file supplemental briefs of no more than 15 pages by March 26, 2013, to address whether the Appellant has standing to bring the present appeal on behalf of the children in light of the foregoing decision.”
  45. 45. New O.C.G.A. § 15-11-2 (52) – CHILD IS A PARTY  (52) 'Party' means the state, a child, parent, guardian, legal custodian, or other person subject to any judicial proceeding under this chapter; provided, however, that for purposes of Article 6 of this chapter, only a child and the state shall be a party. 
  46. 46. New O.C.G.A. § 15-11-19 – RIGHTS AT TRIAL  (a) A party has the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and to appeal the orders of the court; provided, however, that the court shall retain the discretion to exclude a child from any part or parts of any proceeding under Article 3 of this chapter if the court determines that it is not in such child's best interests to be present. An attorney for an excluded child shall not be excluded from the proceedings.   (b) A person afforded rights under this chapter shall be advised of such rights at that person's first appearance before the court. 
  47. 47. New O.C.G.A. § 15-11-103 – ATTORNEY FOR CHILD  (a) A child and any other party to a proceeding under this article shall have the right to an attorney at all stages of the proceedings under this article.  (b) The court shall appoint an attorney for an alleged dependent child. The appointment shall be made as soon as practicable to ensure adequate representation of such child and, in any event, before the first court hearing that may substantially affect the interests of such child.  (c) A child's attorney owes to his or her client the duties imposed by the law of this state in an attorney-client relationship.
  48. 48. New O.C.G.A. § 15-11-103 – ATTORNEY FOR CHILD  (d) If an attorney has been appointed to represent a child in a prior proceeding under this chapter, the court, when possible, shall appoint the same attorney to represent such child in any subsequent proceeding.  (e) An attorney appointed to represent a child in a dependency proceeding shall continue the representation in any subsequent appeals unless excused by the court.  (f) Neither a child nor a representative of a child may waive a child's right to an attorney in a dependency proceeding.  (g) A party other than a child shall be informed of his or her right to an attorney prior to any hearing. A party other than a child shall be given an opportunity to:  (1) Obtain and employ an attorney of such party's own choice;  (2) Obtain a court appointed attorney if the court determines that such party is an indigent person; or  (3) Waive the right to an attorney.
  49. 49. New O.C.G.A. § 15-11-104 – DEPENDENCY GAL (“SHALL”)  (a) The court shall appoint a guardian ad litem for an alleged dependent child.  (b) An attorney for an alleged dependent child may serve as such child's guardian ad litem unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.  (c) A party to the proceeding, the employee or representative of a party to the proceeding, or any other individual with a conflict of interest shall not be appointed as guardian ad litem.  (d) A court shall appoint a CASA to act as guardian ad litem whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a guardian ad litem.
  50. 50. QUESTIONS/DISCUSSION From the Audience
  51. 51. QUESTIONS/DISCUSSION  From an email…  If a child has a dual role attorney, who believes the child's directives are not in the child's best interest, withdraws as GAL and asks the court to appoint a new GAL as required by 10-2:  does the new GAL then direct counsel for the child (at least with respect to an appeal) under WLH?  if so, does the new GAL play a different role from the original GAL (e.g. have a fiduciary and confidential relationship with the child)?  if not, can the child's attorney share confidential information with the new GAL without violating 10-2 and (RPC 1.6)?
  52. 52. QUESTIONS/DISCUSSION  From an email…  If the child has a separate attorney and GAL, who disagree about whether an appeal is in the child's best interest, may the attorney request appointment of a different GAL/next friend to direct the appeal:  on the basis that the original GAL has a conflict of interest (had a duty to the court to give an opinion (testify) as a fact (expert) witness on child's best interest, but no duty to protect the child's legal interests, and had taken (is taking) a position arguably adverse to the child)?;  on the basis that the attorney, under 10-2 and 1.6 is prohibited from sharing confidential information with the original GAL (and if so should the attorney request an appointment order for the new GAL specifying that the new GAL will have a fiduciary duty and confidential relationship with the child and no duty to the court as a witness)?
  53. 53. CONTACT INFORMATION Willie J. Lovett, Jr., J.D., LL.M., CWLS, Director Trenny Stovall, J.D., Director Fulton County Office of the Child Attorney DeKalb County Child Advocacy Center 395 Pryor Street, Suite 4098 4309 Memorial Drive Atlanta, Georgia 30312 Decatur, Georgia 30032 willie.lovett@fultoncountyga.gov tstovall@dekalbcountyga.gov (404) 612-4407 (404) 294-2335 Aimee E. Stowe, J.D., Appellate Attorney DeKalb County Child Advocacy Center 4309 Memorial Drive Decatur, Georgia 30032 astowe@dekalbcountyga.gov (404) 294-2335

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