INTRODUCTION
The following is a portion of the Final Report of the State Bar of Michigan Children's Task Force. This portion contains the Guidelines For Advocates For Children In Michigan Courts. This material has been copied verbatim from pages 62 through 97 of the Final Report, with HTML links added for ease of navigation. The material has been divided into three sections:
STATEMENT OF THE ISSUE
Michigan law has long recognized the need of children to be specially represented in legal matters involving them. This representation not only requires the appointment of legal counsel, but also extends to the use of guardians ad litem, special advocates and other advisors to the court. The ability of a court to clearly and fairly protect a child's interest rests in large part upon the skill and expertise of the advocate. It is the conclusion of the Task Force that Michigan lacks a model of child advocacy which clearly defines the roles and responsibilities of the advocates for the child in various legal proceedings. To overcome this deficit it proposes the following Guidelines for Advocates for Children in Michigan Courts, which is divided into two parts: Part One: Guidelines for Attorneys, CASAs and Special Advisors in Child Protection, Guardianship, and Child Custody Proceedings; and, Part Two: Guidelines for Attorneys Representing Juveniles in Delinquency Proceedings.
RECOMMENDATION
The Task Force recommends that the State Bar of Michigan adopt the following Guidelines for Advocates for Children and distribute them to bench, bar and other interested persons throughout Michigan.
The Task Force further recommends that the Guidelines for Advocates for Children be implemented by the organized bar, courts, and individual attorneys representing children in Michigan courts for the improvement of such representation.
Law schools, Michigan Judicial Institute, Institute for Continuing Legal Education, other lawyer training units and the Michigan CASA Association should use these Guidelines for Advocates for Children as a basis for training attorneys and others to advocate for children.
COMMENTARY
Despite a widespread conviction that children should be independently represented in certain legal actions, consensus about the duties of that advocate is only beginning to develop. Since 1974, the federal government has required, as a condition to receiving federal child welfare funds, that each state provide for the appointment of a guardian ad litem (GAL) in civil child protection proceedings. However, federal law does not define the duties of that GAL.
Michigan law currently requires that children be represented in various legal proceedings, yet it fails to clearly define the roles of these representatives for the child. Some statutes are internally ambiguous. For example, the child protection law requires appointment of "counsel for the child" then directs that counsel "shall in general, represent the best interests of the child" (MCL 722.630). State statutes are also inconsistent among themselves. The child protection law requires appointment of counsel representing ("in general") the best interests of the child in child protection proceedings, while the juvenile code requires appointment of an "attorney" for the child in the same proceedings (MCL 712.17c).
Current law provides for the appointment of an "attorney" for the child in protection and guardianship cases without clearly distinguishing between a "best interests" role and a traditional attorney role. Similarly, current statutes and court rules do not distinguish between lawyer and non-lawyer GALs. A precise use of terms to distinguish these advocates is important. Poor definition of terms causes some of the confusion in the discussion about child representation. Additionally, the law is unclear as to the role the attorney is to play once appointed to represent a child.
Lay volunteers are advocating for children in protection cases in several Michigan Probate Courts as Court Appointed Special Advocates (CASAs). Nationally there are some 35,000 CASAs, some of whom belong to the National CASA Association which has developed national standards and procedures. Michigan CASAs have no authoritative definition of their roles and duties in Michigan law. Clarification of the CASA role is essential to the improvement and expansion of this promising source of advocacy services for children.
The Task Force realizes that there are good reasons for allowing a court the discretion to call upon non-attorneys for assistance. Budgetary limitations in many jurisdictions make the appointment of an attorney as GAL for the child in all cases financially prohibitive. Also, in some cases, the court needs a specially qualified non-attorney GAL. However, it is usually important to have an attorney as GAL because attorneys are trained to protect and pursue the child's interests in legal proceedings and to initiate and pursue remedies and matters in other courts and/or administrative forums. The Task Force determined that without an attorney GAL, a child's interests may be negatively affected during most legal proceedings. The Task Force believes that adequate funding of courts, such that every child receives adequate legal representation, should be a budgetary priority.
There may actually be economies to the court system where children are aggressively represented as noted in Impact Statement. Court systems where children are aggressively represented may achieve some economies as noted in Duquette and Ramsey, "Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation." 29 U of Mich Law Reform 357 (Winter, 1987).
At present, Michigan law has no special requirements for those who serve as advocates for children. As a result, in many cases advocates do not understand the special needs of children and the quality of their advocacy is impaired. While these guidelines encourage the courts to ensure that each child advocate possess minimal training in the special needs of children, there is no certification process or enforcement mechanism recommended.
The Task Force has reviewed the National CASA Association guidelines for special child advocates. This document clearly and adequately describes the requisite qualifications for a CASA. It was therefore unnecessary for a new set of standards to be drafted within the body of these guidelines.
After extensive discussion, the Task Force resolved the perplexity of crafting roles which value the training, skills, and strengths of the attorney, the CASA and the Special Advisor. The resulting policies reflect the Task Force's acceptance of fiscal realities and an assessment of the needs of children in child protection, guardianship and child custody actions.
Part one of these guidelines addresses advocacy issues in three distinct types of proceedings: child protection, guardianship, and child custody. The Task Force understands that each type of proceeding represents unique problems and challenges for the child advocate. However, there is no conflict in collapsing guidelines for all three of these proceedings into one document. A fundamental principle guiding the Task Force was that coordination among courts in children's cases is extremely important. This is reflected in the current move towards unification of Michigan trial courts and the proposed creation of a "family" court. Some jurisdictions are experimenting with a children's docket where one judge hears all cases affecting the welfare of a particular child. However it is done, it is imperative that legal proceedings regarding children are coordinated. These guidelines anticipate a time in which one child advocate will be chosen to represent a child in any and all proceedings affecting that child's interests.
Part two of these guidelines proposes practice guidelines for attorneys representing juveniles in delinquency proceedings. The guiding principle behind this document is the belief that children need competent independent representation in proceedings in which the child is a party or the subject of the action.
Because these guidelines arise in the context of a child's defined right to legal representation in delinquency matters, the primary representative of the child should ordinarily be a lawyer, although the guidelines provide that a court could appoint a non-lawyer advocate for the child under certain circumstances. Though lawyers are necessary in most legal proceedings, they may not be sufficient to serve all the advocacy needs of children. Thus, these guidelines also include the important roles of non-lawyers, particularly lay volunteers, in providing adequate representation for children. These guidelines envision a team approach in which lawyers work closely with non-lawyers, thereby taking advantage of the strengths of each team member.
IMPACT STATEMENT
Part One: Guidelines for Attorneys, CASAs, and Special Advisors in Child Protection, Guardianship and Child Custody Proceedings, with Commentary
Statutory/Court Rule Implications
Michigan statutes and court rules should be amended to reflect the definitions recommended in these Guidelines. Current statutes affected include the following:
MCL 722.630 (Child Protection Law)
MCL 712A.17c (Juvenile Code)
MCL 700 427(4); MCL 700.437(3) (Guardianship)
MCL 722.27 (Child Custody Act)
Court rules affected by these recommendations are:
MCR 5.915 (Assistance of an Attorney - Child Protective Proceedings)
MCR 5.916 (Guardian ad litem - Child Protective Proceedings)
MCR 5.201 (Guardian ad litem; Visitor - Guardianship Proceedings)
MCR 5.763 (Guardian ad litem/Appointment of Temporary Guardian For Legally Incapacitated Person)
Fiscal Implications
The Task Force recommends the appointment of an attorney to represent the child as GAL, the appointment of an attorney as legal counsel for the child upon judicial discretion and training for officers of the court (judges, lawyers, court staff, and support services). Notwithstanding these lofty goals, the Task Force is cognizant of the fact that most courts in Michigan have limited access to resources with which to substantially increase their level of court appointed legal services. A careful analysis, however, may forecast surprising results.
The appointment recommendations refer to legal actions involving child protection, guardianship and child custody. Currently, the child is appointed a GAL in child protection and guardianship actions. Thus, the appointment recommendations primarily impact child custody actions, where a GAL is not always appointed. Research by Duquette and Ramsey, "Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation", 29 U of Mich J of Law Reform, 357 (Winter 1987), indicates that fiscal advantages directly related to certain institutional economies may ensue with the appointment of advocates for children in these cases. According to the study, there is an increased diversion of cases where the child has an advocate and that advocate is well trained. Cases were more efficiently processed, resulting in fewer hearings over a shorter period of time. Therefore, any increase in the cost of legal services to children may result in a "bubble effect", a temporary increase during transition which gradually contracts. Beyond the contracting "transition bubble", the Duquette/Ramsey study projects that these institutional economies could yield a more cost efficient legal process than the current legal process.
The second recommendation topic involving fiscal implications is training for officers of the court. Much of the training costs could be absorbed by those officers of the court who receive appointments from the courts. Similar to the practice in some other legal forums, a nominal percentage of each appointment fee could be retained by the court to finance training. Consequently, individuals who benefit professionally from the training would sponsor themselves in the endeavor. The proposal suggests that training be advisory, not mandatory, and a certification process is not recommended. Within this training design, courts are advised to consider the adequacy of the training of their appointees. Courts currently compile potential appointee lists. The Task Force's recommendation is simply that the compilation and/or appointment process should take into consideration training. Thus, there are no apparent consequential administrative costs associated with the training recommendations.
In brief, any adverse fiscal implications may not be as extensive as initially thought. Moreover, there is a substantial possibility that any needed budgetary increases to the courts of Michigan would be temporary and quantifiable by fiscal experts. A logical conclusion is that, in the short run, an increase in the cost of the delivery of juvenile justice may surface. In the long run, however, an emphasis on thorough and competent representation of the child will likely reduce current court costs and other related costs. The financial benefits to the State of Michigan, as well as the social and economic benefits to the children of Michigan, could outweigh the financial costs.
Implementation
Full implementation of this recommendation requires action by the Michigan Legislature and the Michigan Supreme Court.
IMPACT STATEMENT
Part Two: Guidelines for Attorneys Representing Juveniles in Delinquency Proceedings, with Commentary
Statutory/Court Rule Implications
Revise MCR 5.915(A)(1) and (2).
Eliminate Waiver Proceedings as endorsed by the Executive Committee of the Michigan Probate Judges Association.
Fiscal Implications
The Guidelines are voluntary in nature so the fiscal impact is quite limited. There may be some increased costs in some jurisdictions if following these guidelines requires additional attorney time in representing youth.
Implementation
Full implementation of this recommendation requires action by the Michigan Legislature and the Michigan Supreme Court.
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