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JURISDICTION RESEARCH - 50 STATES AND TERRITORIES 

 

United States[1] [print]

Last edited: December 2005

 

Summary and Analysis

 

Although the United States has not yet ratified the Convention on the Rights of the Child, the convention nevertheless creates duties for the United States in two ways.  First, as a signatory to the convention, the United States is bound not to contravene the object and purpose of the convention.[2]  In addition, American courts have just begun to examine whether or not the Convention on the Rights of the Child constitutes customary international law, binding the United States despite its failure to ratify the convention.[3]  The broad consensus concerning the rights of the child codified in the CRC, evidenced by the universality of its signatures and the near universality of its ratifications, suggests to many observers that these rights are quintessential customary international law.[4] 

 

In 1974, Congress passed the first comprehensive legislation dealing with prevention and treatment of child abuse.  CAPTA (Child Abuse Prevention and Treatment Act) created the National Center on Child Abuse and Neglect (NCCAN), a clearinghouse for information on child abuse and neglect, and also authorized money for demonstration projects designed to prevent, identify, and treat child abuse and neglect.  CAPTA included a number of criteria that the states had to meet in order to receive funds for state demonstration programs and also for child abuse and neglect related programs funded under the Social Security Act.  One of the ten criteria for CAPTA included the requirement that state provide guardians ad litem for all child abuse and neglect proceedings.[5]  CAPTA also therefore represented the birth of the field of representation of children in child protective proceedings.

 

Since CAPTA, there have been several national initiatives to further define the role and responsibilities of the child representative.  The ABA in 1996 published Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Proceedings, which the National Association for Counsel for Children (NACC) commented on in an official revised version in 2003. (Both of these documents are available below in Additional Resources and Links.)  Recently in July 2005 the National Conference of Commissioners on Uniform State Law (NCCUSL) proposed a draft uniform act for the representation of children in child protective proceedings.[6]  The draft act defines three possible roles: 1.) a child's attorney who is client-directed, 2.) a best interests attorney who assists the court in determining the best interests of the child, and 3.) a court advisor who has the same duty as the best interests attorney but is a volunteer.  According to the draft act, a court must appoint either a child's attorney or a best interests attorney in all abuse and neglect proceedings; the court may appoint a court advisor at its discretion.  The act also proposes several factors—age and maturity seem to be the most significant—a court should consider in choosing between a child's attorney or a best interests attorney.

 

Since CAPTA is the only national statute governing child representation, each state and the six U.S. territories have created fifty-six unique child representation systems.[7]  To supplement our state by state review of the American jurisdictions practices, we attempted to create a framework to summarize the fifty-six jurisdictions with the focus on the legal provisions detailing the responsibilities of the duties of the child representative.  This summary chart was designed specifically to organize the American jurisdictions with respect to central questions raised by Article 12 of the Convention on the Rights of the Child.  Central to the analysis was whether the legal representatives in the jurisdictions were required to advocate for the child's views?  Or were they required to express the child's views at all?  In looking at the very disparate jurisdictions through this lens, we were able to some degree to organize the jurisdictions into the following six categories, detailed below.  These six categories represent six different structures of the legal responsibilities given by the state law in describing the duties of the child representative.[8] 

 

We were able to reach a few conclusions based on our research of the fifty-six American jurisdictions.  First, no two of the fifty-six American jurisdictions have identical systems of representation.  Second, as measured by the requirements of Article 12 of the Convention on the Rights of the Child, four of the six U.S. models comprising thirty-nine jurisdictions, appear to be in compliance with the CRC's mandate that the child shall be assured the opportunity for his wishes to be heard; two of the models, consisting of seventeen states, however, provide no legal requirement that each child's viewpoint be expressed or advocated.  Third, a super majority of states rely either partially or exclusively on a model in which the representative represents the child's best interests.  Five of the six models require a best interest representative for some or all children; for only five states is the best interest representative always optional rather than mandatory.

 

Compensation for the work of child representatives in the United States appears also to vary from state to state, with no two state compensation systems the same.  One commentator has suggested that there are six compensation models among the states: contract, contract combined with salary, salary, contract combined with per hour or per case, per hour and per case.[9]  The legal provisions on compensation discovered in this research are compiled in the chart found on the research summary page.[10]  The relatively few (twelve) jurisdictions which listed an hourly rate per case are compiled in a second chart also found there.[11]  While few generalizations can be made, four observations seem warranted:  1) CASAs, or unpaid lay volunteer advocates, along with unpaid attorney volunteers still play a major role in child representation in the US; 2) where hourly rates of pay are available, they are remarkably low compared to others in the legal profession, ranging for out-of-court work from $40 per hour to $65 per hour and for in-court work ranged from $40 per hour to $75 per hour; and 3) compensation is an increasingly volatile issue, with lawsuits concerning attorney compensation found in at least four states.  Extremely basic questions regarding compensation remain unresolved in many jurisdictions, including the amount of pay, the court's jurisdiction to augment statutory rates, which legal services qualify for compensation, and who, if anybody, will pay attorneys/guardians ad litem; a number of jurisdictions' statutes provide for assigned counsel without articulating a mechanism for payment.

 

Sources of Law (In Order of Authority)

 

Statutes

 

Child Abuse Prevention and Treatment Act § 106[12] (Grants to States for Child Abuse and Neglect Prevention and Treatment Programs)

. . .

b.  ELIGIBILITY REQUIREMENTS.--

. . .

1.  COORDINATION.--A State plan submitted under paragraph (1) shall, to the maximum extent practicable, be coordinated with the State plan under part B of title IV of the Social Security Act relating to child welfare services and family preservation and family support services, and shall contain an outline of the activities that the State intends to carry out using amounts received under the grant to achieve the purposes of this title, including--

a.  an assurance in the form of a certification by the chief executive officer of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a Statewide program, relating to child abuse and neglect that includes--

. . .

ix. provisions and procedures requiring that in every case involving an abused or neglected child which results in a judicial proceeding, a guardian ad litem, who may be an attorney or a court appointed special advocate (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;

 

Additional Resources and Links

 

American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Proceedings (1996).[13]

 

National Association for Counsel for Children, Comments on ABA Standards (2003).[14]

 

Astra Outley, The Pew Commission on Children in Foster Care, Representation for Children and Parents in Dependency Proceedings.[15]

 

First Star, State Court Survey Results (2004).[16]

 

Jean Koh Peters, How Children Are Heard in Child Protective Proceedings, in the U.S. and Around the World 2005: Survey Findings, Initial Observations and Areas for Further Study, 6 Nev. L. J. __ (forthcoming 2006).

 

Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practice Dimensions (3d ed. forthcoming 2006). 

 

 

 


Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Vienna Convention on the Law of Treaties, art. 18, 1155 U.N.T.S. 331 (1980).  Although the United States is again a signatory but not a ratifier of the Vienna Convention, Article 18 of the Vienna Convention is considered by American jurists and scholars of international law to be customary international law and thus binding on the United States.

[3] See Sadeghi v. INS, 40 F.3d 1139, 1147 (10th Cir. 1994) (Kane, J., dissenting) (arguing that the entire CRC is customary; Nicholson v. Williams, 203 F. Supp. 2d 153 , 234 (E.D.N.Y. 2002) (noting that CRC provisions dealing with family integrity have the force of customary international law); Beharry v. Reno, 183 F. Supp. 2d 584, 600-01 (E.D.N.Y. 2002) (“Given its widespread acceptance, to the extent that it acts to codify longstanding, widely-accepted principles of law, the CRC should be read as customary international law.”), rev'd sub nom on other grounds, Beharry v. Ashcroft, 329 F.3d 51, 63 (2d Cir. 2003z); international law).

[4] See, e.g., Beharry, 183 F. Supp. 2d at 600-01; Connie de la Vega, The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right?, 11 Harv. BlackLetter J. 37, 45-46 (1994); see also Gary B. Melton, Children, Families, and the Courts in the Twenty-First Century, 66 S. Cal. L. Rev. 1993, 2039-40 (1993) (observing, at a time at which the United States was one of twenty-nine nations who had signed but not yet ratified the CRC, that “the ratification of the Convention is so nearly universal that its strictures are likely to be soon recognized as customary international law”).

[5] As part of “ADOPTION 2002: The President's Initiative on Adoption and Foster Care,” the Department of Health and Human Services issued Guidelines for Public Policy and State Legislation Governing Permanence for Children.  In these guidelines, the Department noted that “the States may appoint the attorney for the child as described in 15A in fulfillment of the CAPTA requirement.”  Department of Health and Human Services, Guidelines for Public Policy and State Legislation Governing Permanence of Children, Part VII.  Standards for Legal Representation of Children, Parents and the Child Welfare Agency, available at http://web.archive.org/web/20030224035115/www.acf.dhhs.gov/programs/cb/publications/adopt02/.

[6] NCCUSL, Draft of Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act (October 2005), available here, and also as .pdf Document, and also as Word Document.  For additional information on NCCUSL, see http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=59.

[7] A separate page for each of the fifty-six U.S. jurisdictions is available on this website.  In addition, a Microsoft Excel chart containing a précis about each state's practice appears at www.law.yale.edu/rcw (click on “Research Summary” link).

[8] The results of this research are compiled at www.law.yale.edu/rcw (go to “Jurisdiction Research” and to the “United States” jurisdiction).

[9] Althea Izawa-Hayden, Money Matters: Child Attorney Compensation Models, 24 ABA Child. Rts. J., 7 (September 2005).

[10] Link to summary compensation chart.

[11] Link to chart on hourly rates.

[12] 42 U.S.C. 5106a § 106 (2005), available at http://www.acf.hhs.gov/programs/cb/laws/capta/, and also here, and also as .pdf Document, and also as Word Document.

[15] Available at http://pewfostercare.org/research/docs/Representation.pdf, and also here, and also as .pdf Document, and also as Word Document.  Additional information about the Pew Commission on Children in Foster Care can be found at http://pewfostercare.org/.

[16] Available at http://www.firststar.org/research/scs.asp.  This report lists the results of a 2003-2004 survey of child welfare administrators across the country.  The administrators were asked a series of questions about their state systems and how they work for children. 

 

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