Foster Fairness

Children Need a Lawyer

THANK YOU FOR YOUR ADVOCACY DURING THE 2023 AND 2024 LEGISLATIVE SESSIONS

The majority of States mandate the independent legal representation of children in dependency proceedings because it is an evidenced based best practice advocacy model. The Federal government, the American Bar Association (ABA), the National Council of Juvenile and Family Court Judges (NCJFCJ), and youth with lived experience in the child welfare system agree that children subject to dependency court proceedings must have independent legal representation throughout the case.

In 2014, the FL legislature concluded that “[a] dependent child who has certain special needs has a particular need for an attorney to represent [them].” F.S. 39.01305(1)(a)(2). Currently, an attorney must be appointed to any child who is (1) placed in a skilled nursing facility, (2) objecting to prescribed psychotropic medications, (3) diagnosed with a developmental disability, (4) placed or at risk of placement in a residential treatment facility, or (5) a victim of human trafficking as defined by state law (§ 39.01305(3)). In delineating these categories, the legislature properly reasoned that an attorney was needed to address the “child’s medical and related needs and the services and supports necessary for the child to live successfully in the community.” (§ 39.01305(1)(a)(2)). And when a judge believes a child needs legal representation, current law grants judicial discretion to make the appointment. These bills remove mandatory statutory protections and also restrict Judges ability to appoint attorneys to protect children.

In 2021, at the direction of the Florida legislature, the Office of Program Policy Analysis and Government Accountability (OPPAGA) completed a comprehensive survey of peer-reviewed research studies and academic literature on the effectiveness of various advocacy models for children involved in dependency court. OPPAGA found that “many of the more recent studies on child representation acknowledged widespread consensus among academics, practitioners, and states favoring legal representation for children in dependency proceedings.” OPPAGA’s results aligned with other national research. Children appointed attorneys experience better results than those who do not, including less time in foster care or group settings, shorter time to adoption or guardianship, and more successful reunifications. Children represented by specially trained counsel are 40% more likely to leave the foster care system within their first six months, 45% more likely to reunify with their biological parents, 30% less likely to change placements, and 65% less likely to change schools for reasons other than graduation. An attorney can shorten the time a child is in the foster care system, meaning cost-savings for state and federal taxpayers. The Legislature should question why HB 185 (like HB875 and SB1384) seeks to disregard OPPAGA’s report to the legislature and eliminate evidenced based independent legal representation.

Children and youth in state custody need a well-trained attorney who can provide them with independent legal representation and ensure their state and federal legal rights are enforced. Current law helps protect these rights throughout the foster care experience.

For example:

• Children and youth who are victims of sex trafficking have a right to ongoing assessments to identify their needs and determine the most appropriate, least restrictive placement option (Fla. Stat. Ann. § 39.4085 (1)(j)). Attorneys ensure these assessments happen, and these bills would gut that protection;

• Children with developmental disabilities have a right to appropriate evaluation and medical care for their needs (Fla. Stat. Ann. § 39.4085 (1)(g)). Attorneys monitor fidelity to these evaluations and fight for appropriate services. These bills would take away legal advocates from this vulnerable subpopulation of children; and

• Children placed in residential treatment facilities have the right to confidential conversations with their attorney (R.L.R. v. State, 116 So. 3d 570 (Fla. Dist. Ct. App. 2013)) and the right to access appropriate behavioral health and educational services (Fla. Stat. Ann. § 39.4085 (1)(g)). These facilities often lack proper oversight, have poorly trained staff, use harmful restraint and seclusion practices, and house children mismatched for the level of care. HB 185 would eliminate attorneys that hold the state accountable for ensuring children are not mistreated in facilities, and who file critical motions for placement changes.

Florida's GALP best interest model is costing taxpayers millions of dollars in lost federal match funding every year.

For years, existing CSC County funded attorney programs at Legal Aid's in Palm Beach and Broward Counties, and in the majority of other States, have already saved taxpayers millions of dollars a year by qualifying for 50% matching Federal IV-E funding for providing independent legal representation to children. However, the Florida Guardian Ad Litem Program Model, despite repeated false promises to the legislature, year after year, remains unable to qualify for 50% federal match funding for their 60 million dollar a year State funded best interest model, costing Florida taxpayers over 30 million per year in lost matched funding.

SB 1224 is an attempt to qualify for IV-E federal match funding by changing the wrapper on the guardian ad litem best interest model to "fiduciary appointed by the court to represent the child." This logic is flawed because the GALP Model still only provides best interest advocacy and fails to meet the federal law match requirement for providing “independent legal representation.” The advocacy provided by the Florida GALP is NOT independent legal representation by an attorney who has a direct attorney-client relationship with a child and owes that child certain professional ethical duties (including competence, diligence, and loyalty) unhindered by obligation to any other party, individual, or entity. Research and scholarly writing, referenced in OPPAGA’s report to the legislature, demonstrate the efficacy of independent legal representation—not the Florida GAL model. Similarly, Title IV-E of the Social Security Act provides reimbursement funds for the costs of independent legal representation of children in dependency cases. The federal government endorses independent legal representation because children, “need an attorney to protect and advance their interests in court, provide legal counsel and help children understand the process and feel empowered. The confidential attorney-client privilege allows children to feel safe sharing information with attorneys that otherwise may go unvoiced.” The federal guidance identifies organizations providing independent legal representation to children like KidsVoice in Pittsburgh, Pennsylvania which assigns attorneys to represent the alleged abused or neglected child as their client through all stages of the court proceedings.

The Florida GAL Program is aware that they do not provide independent legal representation.

In response to questions raised by the Florida Bar, the GAL Program indicated its attorneys are directed by, “input from the volunteer and/or the GAL case workers, referred to as Case Advocate Managers or CAMs, as the authorized representative of the GAL Program.” The GAL program further indicates in its own legal analysis states that the GAL attorney represents the GAL Program as a legal entity, and the GAL Program is the [GAL attorney’s] client as referenced by RRFB 4-1.13.”

The Florida GAL 2023 Standard Operating Procedures similarly notes that:

  • The GAL Attorney refers to an attorney assigned by the Office to represent children and provide legal counsel to the GAL in the circuit dependency proceeding or the appellate courts [emphasis added].

  • The GAL Attorney should provide advice and counsel to the team and the child, who should be provided opportunities to give input and inform the team’s advocacy to the extent possible consistent with the child’s age, cognitive ability, maturity, trauma history, and therapeutic needs. [emphasis added].

Relabeling the GAL best interest model as "fiduciary" representation of the child conflates terms and will lead to legal and ethics challenges. The Florida rules of professional conduct make it clear that “[n]o one can serve two masters.” The GAL and child are separate parties under F.S 39.01(58) & one party cannot legally or ethically provide independent legal representation to another party. The GAL attorney cannot and does not provide independent, undiluted legal services to a child wilst also bound to represent the GAL organization’s policies, direction, and influence. These bills do not align Florida with the majority of other states that have adopted research-based best practice and require the independent legal representation of children.

We were able to defeat the most egregious provisions of HB185 and SB1224 in 2024 to allow a limited number of child victims of abuse, abandonment and neglect to continue to receive the equal protection of independent legal representation by attorney ad litems.

Guardian ad litem PROGRAM attorneys represent the Guardian Ad Litem PROGRAM despite their continued efforts to obfuscate the respective legal and ethical responsibilities of Attorney Ad Litems and GAL Program Attorneys. Unfortunately, SB1224 by striking existing statutory language (To have a guardian ad litem appointed to represent, within reason, their best interests and, if appropriate, an attorney ad litem appointed to represent their legal interests) and adding new terminology (“Guardian ad litem” means a person or an entity that is a fiduciary appointed by the court to represent a child) has created additional confusion that will escalate future litigation, trigger a myriad of bar ethics complaints, and increase "fiduciary" liability exposure of the State-funded GAL Program potential fraudulent aplication for Federal IV-E funding without providing actual contracted independent legal representation to children. Regardless of any new wrapper, the nebulous statutory label of the GAL’s best interest model as a “fiduciary” must not be confused with actual independent legal representation. The GAL model is not independent legal representation – not for purposes of Title IV-E funding, and not according to any legal analysis or related research. The Federal government, the American Bar Association (ABA), the National Council of Juvenile and Family Court Judges (NCJFCJ), and youth with lived experience in the child welfare system agree that children subject to dependency court proceedings must have legal representation throughout the case. There is national consensus that children in foster care require independent legal representation: The majority of states mandate the legal representation of children in dependency proceedings, demonstrating that this is a feasible and practicable reform. Florida must move towards research-based best practice, not away from it. Florida must expand appointment of attorneys for special needs children given the depth and breath of national research supporting independent legal representation for children and the significant nature of their legal interests in dependency matters.

Since 2017 when 50% IV-E federal funding match became available for ILR representation models, the GAL has systematically fought against ILR attorney models for child victims:

FL should increase Independent Legal Representation to Children in Florida’s Child Welfare System:

  • Children are the only party in Chapter 39 dependency cases without State funded attorney representation
  • The child, as a party, needs to have a voice in dependency proceedings like every other party.
  • ILR attorneys have the tools and legal strategies needed to solve most children 0-18 primary legal problem which getting out of state custody and achieving expedited permanency into a safe and stable family.
  • ILR attorneys are also able to provide comprehensive representation for children 0-18 that may include APD, Medicare, Education and many other complex legal needs child victims face inside and outside the dependency system.
  • ILR attorneys to provide a direct attorney-client relationship with a child and owes that child certain professional ethical duties (including confidentiality, competence, diligence, and undivided loyalty) unhindered by obligation to any other party, individual, or entity. -
  • These positions are consistent with: The 2019 Florida Bar's Special Committee on Child and Parent Representation Report The Florida Bar Commission on the Legal Needs of Children

Children's Right to Counsel.

It’s not fair that the child victim of abuse, abandonment and neglect, whose entire life is being affected, is the only person in the courtroom that doesn’t get a State funded attorney.
Unlike the majority of other states, Florida fails to provide all child victims with attorneys to protect their rights and expedite their permanency. 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. Children have the most significant interests at stake in the court proceedings that govern every aspect of their lives. The evidence shows that children are best served with their own attorney providing independent legal representation.

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 has to live with the court’s decisions is deprived of that equal protection.
  • 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.

Children who get lawyers do better and spend less time in foster care = cost savings for taxpayers.

  • Since 2017, the Federal Children Bureau has incentivized all States and Counties to chose Independent Legal Representation models by providing a IV-E 50% federal funding match, a federal subsidy that could save Florida taxpayers millions.
  • Research shows that children who get independent legal representation spend less time in foster care which would save the State additional millions in reduced cost of care AND reductions in child welfare, social services, health care, education and criminal justice costs.
  • Better outcomes and less trauma in care for child victims is priceless.

Additional information is available on our Facebook page and these links:

(https://www.childrensrights.org/news-voices/all-children-deserve-a-lawyer-by-their-side) (https://www.americanbar.org/groups/litigation/about/committees/childrens-rights/fostering-justice/) (https://www.tallahassee.com/story/opinion/2021/03/31/florida-legislature-states-foster-children-need-legal-help/7059735002/) (http://floridachildadvocate.com/tag/rights-of-foster-children) For More Information Contact: fosterfairnessflorida@gmail.com