Why Does Counsel for Foster Children Belong in the Florida Constitution?

Our Constitution enshrines the basic fundamental rights of our citizens.

Children have the most significant interests at stake in the court proceedings that govern every aspect of their lives.

The decisions courts make in child welfare proceedings are serious and life changing. Parents stand the possibility of permanently losing custody and contact with their children. Children and youth are subject to court decisions that may forever change their family composition, as well as connections to culture and heritage.

When courts make life-altering decisions that implicate fundamental rights, due process compels representation.

The U.S. legal system is based on the premise that parties have a due process right to be heard and that competent legal representation and fair treatment produce just results.

Our failure to provide all children counsel is based in part on a 1980 Florida Supreme Court opinion that is interpreted to mean that children do not have a constitutional right to counsel. (The opinion actually upheld the appointment of counsel for one child and noted counsel was available to other children by statute and at the discretion of the trial court.)

“The right to counsel is an evolving constitutional concern.” In re D.B. at 89. Much has changed in the child welfare landscape in the 37 years since D.B. opinion was issued. The evidence shows that children are best served with a combination of their own attorney providing direct representation and a volunteer guardian ad litem.

When A Child’s Liberty Is At Stake, Only A Lawyer Can Ensure Due Process, Protect Legal Rights And Zealously Advocate.

  • The state, the GAL, and parents accused of abuse and neglect are all represented by their own attorneys. The child who literally has to live with the court’s decisions is deprived of that assistance.
  • Only a lawyer can advise a child about legal rights, legal options, what will happen next in the case and the likelihood of prevailing on stated positions.
  • Only a lawyer can ensure confidentiality of communications – providing a safe person with whom to repose trust.
  • Only a lawyer has a duty of confidentiality, competence, loyalty, counsel and zealous advocacy.

Florida’s Children Deserve The Best Practice: Both An Attorney And A GAL.

  • Florida’s volunteer Guardians Ad Litem provide invaluable service to foster children. GALs have the time to truly get to know each child, mentor, support and identify needs and sometimes resources.
  • National consensus has formed that children receive the best outcomes when provided counsel in addition to a volunteer guardian ad litem.

The Cost of Funding Attorneys Will Be Far Outweighed By The Short And Long Term Savings To The State.

  • The cost of providing counsel to unrepresented children is estimated at $20 million a year.
  • Short-term savings for reduced foster care placements is estimated at $36 million.
  • Long-term savings in terms of better outcomes for children may be in the billions.

A Constitutional Amendment Is The Right Way To Protect Children’s Liberty Interests, Due Process And Access To Courts.

  • A 1980 Florida Supreme Court opinion declined to find a constitutional right to counsel, but recognized that the right to counsel is an evolving area of law. It is time to evolve.

    • Dependency Court has changed substantially. In 1980 neither the state nor the parents routinely had lawyers and there was no GAL program. Today all parties, other than children, are represented by state-funded lawyers.
    • Scholarship and research supports the national consensus that children need their own lawyers. In 1980, states were just considering how to provide representation to all dependent children, there was no research, or data on the subject.
  • The establishment of a constitutional right to counsel can be achieved by litigation or amendment to the constitution. Constitutional amendment is far more efficient than litigation.