Voices and the Voiceless

The Washington Supreme Court recently declined to recognize a categorical right for children to have attorneys appointed in dependency cases. Many in the child advocacy community are viewing the decision as a loss.  But the Court’s decision is correct for many reasons, including reasons not stated in the opinion itself.

 

The debate over the right to attorneys for children has often been described, and was described in this case, as a question of giving “voice” to the “voiceless.” That characterization obscures the fact that many children, by virtue of their age, simply can’t communicate. 

 

Lawyers should be troubled by the notion that we can “represent” the position of a pre-verbal infant child. Lawyering is, foremost, an exercise in listening. Over the years, listening to clients has taught me that I can never predict what they will say, what position they will take, or which way a dependency case will go. My clients have proved my assumptions wrong enough times to humble me. It is with that in mind that I question the premise that we, as lawyers, can (or should) ever give voice to voiceless children. 

 

Those who have argued for the automatic appointment of counsel have suggested we can “listen” to an infant client’s nonverbal communication. But what do we “hear” when we watch our infant client snuggling with a pre-adoptive caregiver, in a clean middle-class home while imagining returning that child to a formerly homeless parent in recovery from addiction? I believe what we hear loudest are our own assumptions. That is a dangerous proposition, because it allows the very act of legal representation to inject bias into the case. 

 

Others have argued that lawyers can represent an infant’s legal interest, and protect their constitutional rights, even when the child cannot communicate with us. But a dependent child’s legal interest are often unclear. A child has both the legal right to safety and the constitutional right to family integrity. How would a lawyer representing a child decide which of those interests to pursue? Allowing lawyers to make that choice opens us to the claim that we (rather than our clients) are directing the litigation.

 

Child advocates are correct to raise concerns about how our system currently handles dependency cases. All too often, children’s needs are ignored. Between frequent placement changes and a chronic turnover in social workers, the child welfare system struggles to meet the needs of the children it aims to protect. 

 

Children in dependency cases are also often failed by the non-lawyer “advocates” currently appointed to advocate for them in Washington State, as Justice Mary Yu pointed out in her dissent.  These volunteers, predominately older middle-class white women, stand in for the child and the child’s family in dependency court.  But they are not immune from bias either.  When these volunteers, called CASAs, are assigned to a case, children are more likely to have their legal relationships to the parents permanently terminated, an outcome called the civil death penalty.

 

And our system prematurely and overzealously pursues the termination of parental rights. When children lose their parents, without an adoptive family in place, they become legal orphans without family to advocate for them.

 

Clearly, the dependency system is desperately in need of reform.

 

Even so, the Court correctly answered the question that was posed. The solution for children in dependency cases is not necessarily more lawyers.  This decision allows for the appointment of counsel, on a case-by-case basis, when children are capable of expressing concerns that are not being heard.  But it also recognized that in dependency cases we ought to rely on those who love children to make good decisions for them.  Indeed, the Court recognized that parents and relatives can advocate for children in many circumstances. 

 

Most children In Washington State who are removed in dependency cases eventually go home to a parent or parents, and many children are placed with loving relatives in the meantime.  Parents who temporarily lose custody of their children are often struggling with poverty, addiction, mental illness, or domestic violence, but never stop loving and caring about their children.  That love, and that family, can be our guide, when the child cannot.