I Speak For This Child: True Stories of a Child Advocate (59 page)

“You’re young, but you’ve been through a lot.”

Sandra gave me a hug. “Sometimes its like a war between Millie and my mother. Now they will have to give me some peace.” She seemed to be waiting for my approval. ‘I’m enlisting next month.”

“Part of the plan,” I said.

Sandra twisted her brand new wedding band. “Yes, and so far it’s working out the way I wanted.”

7
All Victories Great and Small
The Rights of Children

I beseech you to treasure up in your heart these my parting words: Be ashamed to die until you have won some victory for humanity

—H
ORACE
M
ANN

W
HEN
I
BECAME A
G
UARDIAN AD
L
ITEM
I
WAS LOOKING TO
help individual children. As soon as I became actively involved in their lives, I began to receive a practical course in the social and economic issues that helped create the acute problems many children face and how little is being done to remedy the root causes of abuse and neglect as well as the dearth of programs to assist families in crisis. The fact that the Stevensons were not kept in the same foster home or that the social workers gave no consideration to continuity of schools in placing them astonished me at first. When I learned that this was routine management, I no longer could content myself with merely putting out the fires as they threatened to engulf the children in my charge. I had to begin to address how citizens could take the lead in local action in the areas of prevention and recovery. Like many advocates, I felt I had to pass on what I discovered to the much wider community. The outrage all the guardians feel during our personal encounters with the cruelty and injustice our children have suffered spills over to a much wider base of friends and families, all of whom vote for legislators and judges. Because we feel viscerally connected to the families in the system, we are less likely to accept platitudes from bureaucrats. We bristle when children are referred to as “files,” homes as “beds,” families as “placements.” We refuse to accept shoddy work, lazy excuses, convoluted paperwork, unconscionable delays, and idiotic rules or fragmented authority when they impact negatively on any child’s life—especially one assigned to our supervision.

The children entrusted to me were not particularly difficult or unusual cases. I received whatever the office had to have covered at a time I was willing to accept a new case, although once I had some success with teenagers, I was given more of them. There are family problems even more convoluted and acute than the ones I handled, there are court cases with uglier perpetrators, there are children with more tragic lives. In a sense, I have had a random sample of what happens in social service agencies and courtrooms throughout the country on a daily basis.

Nationally, one-third of all children in foster care are between thirteen and eighteen and about one-half are over the age of ten. Many guardians, especially the older ones, feel more comfortable with younger children, who are not as expressive about how they feel or have as many ideas about where they want to live. Yet the severe problems of older children do not suddenly erupt with their hormones. Years of unreported abuse and neglect take their toll and foster care does not begin to solve their problems. At least half of all runaways (an estimated 500,000 teenagers) in the United States have fled from state-supported foster homes or correctional institutions. Lydia Ryan and Alicia Stevenson preferred to live on the street rather than return to the “system.” No matter how hard I tried, I could not secure the individualized mental or medical health or educational programs they required. Their injuries did not stop when they were removed from their parents’ homes but were compounded by the ineffectual way the state managed their care, and they were irrevocably harmed when they were dumped without any resources the day they came of age. Nobody would listen to what they wanted when they were under eighteen. Nobody would help them when they were over eighteen. In the end I also failed to provide either of them with a permanent, loving family. What would have to change to improve the outcome for troubled children in the future?

A CHILD’S RIGHT TO A PERMANENT, SAFE, CARING HOME MUST BE ESTABLISHED LEGALLY

As societies evolve, the first rights are given to men, then animals, followed by minorities, women, and finally children. In twentieth century America, the first wave of rights reform went to minorities while the second wave established parity between men and women. There seems to be about a ten-year span between the early work to establish these rights, national legislation to guarantee them, and court cases to interpret and insure them. Now comes the third wave: the rights of the most tender citizens. We are in the early stages of establishing that children should have guaranteed constitutional rights.

Until recent times, parents could do anything they wanted to their progeny. In ancient Rome, fathers could legally kill their children because the person who gave life could also take it away. The first child abuse case in the United States was prosecuted in 1894 only after the head of the Society for the Prevention of Cruelty to Animals persuaded a judge that the child, Mary Ellen, was a member of the animal species and thus deserved protection under the cruelty to animal laws. In the landmark Gault decision in 1967, a judge reversed the conviction of a boy accused of making lewd telephone calls who had been sentenced to seven years in a juvenile detention center without being allowed to argue or appeal his case. His victory won minors the same rights as adults to due process. Since then, children’s legal rights have taken a few baby steps forward, then have regressed in an ancient struggle with those who refuse to relinquish total parental authority.

While parents have an abiding personal interest in enjoying the companionship of their children and the state has a compelling interest in the health, welfare, and safety of all its citizens—including children—the child should be entitled to mental, physical, and emotional health, safety, and well-being, and in these days of broken homes and battered babies, that entitlement must supersede the interest of its parents as well as the state.

CHILDREN’S BEST INTERESTS AND WISHES MUST BE GIVEN A VOICE

Article 12 of the Convention of the Rights of the Child (ratified by over 130 nations, but not by the United States) states that children should have the right to express their views freely and be given a meaningful opportunity to be heard, especially in court. With a volunteer or attorney advocate by her side, a child should be able to request a stable, sober parent who will not abuse her and who will at least make an effort to meet her needs or find her additional services. The child must also be legally protected from social service agencies that hide behind paperwork and confidentiality laws to do the minimum for the child, or worse, harm the child further as she is shuffled through the system.

In a 1973
Harvard Educational Review
article “Children Under the Law,” Hillary Rodham Clinton wrote that children, like wives, slaves, and Indians, have historically been treated as dependents who are incapable or undeserving of the right to take care of themselves, thus they require social institutions specifically designed to safeguard their position. The legal system of the United States only began to focus on a child’s need to have legal representation during court proceedings after the passage of the Child Abuse Prevention and Treatment Act (CAPTA) in 1974. This legislation mandated that “in every case involving an abused or neglected child which results in a judicial proceeding a Guardian ad Litem shall be appointed to represent the child …” Any state receiving federal money for abuse and neglect services is required to follow this rule, but no guidelines as to who will perform this function are included, nor is federal funding sufficient to support the appointment of an advocate for every child. Although there are now court-appointed special advocates (CASAs) or Guardians ad Litem (GALs) in every state, there are many different interpretations of how this need is best served.

The supreme court of Florida has determined that minors under the law are persons and that constitutional rights do not mature at eighteen, the state-defined age of majority, but they have not yet given children party status in court. Gregory K. did win the right to argue his own case, but this was overturned by the appeals court. Even those people who do not want to see children bringing legal actions in their own name wonder why children’s desires and feelings are not given more consideration by the powers that be. Why, for instance, wasn’t Cory Stevenson asked where he wanted to live when he had to leave the Rose/Perez foster home? All children in foster care should be allowed to participate in decision making about their future and they should be given honest answers to any matters that will affect them. Of course, communicating with a three-year-old will be different than a fifteen-year-old, but at any age a child can be listened to in a way that validates his feelings and, one hopes, elicits his cooperation.

In “Children’s Rights: A Legal Perspective,” (Teacher’s College Press, 1979) Hillary Rodham Clinton addressed the question of when a minor child might be mature enough to be heard. While it is obvious that newborns are incompetent to present their own views, “it is more difficult to prove a twelve-year-old child totally incompetent, and I think impossible to presume the typical sixteen-year-old incompetent.” Yet the law “treats all these children, at their dissimilar stages of life, as incompetent and ignores psychological and social realities.” Whether or not a child can speak for himself yet, the court should always listen to what a child has to say, both on his own as well as through his advocate or legal counsel. Then it is up to the judge to weigh a child’s interests and wishes in view of his unique circumstances—including his age and maturity—and then determine how to rule on the child’s behalf.

Some argue that nobody under eighteen has any idea what is best, as though some maturity surge on a given birthday makes a person more competent than he was the day before. Others arbitrarily select age twelve or fourteen, when actually very young children may be able to state or express what they want. A few very progressive advocates suggest listening to a child of any age, even a toddler, and then making a wise and educated decision taking the child’s statements and feelings into account.

While most people bristle at this concept, I recall our three-year-old son carrying on when he was left with a certain baby-sitter. I had checked this woman out thoroughly and was utterly convinced she was a responsible caretaker. It took many weeks before I saw through her two-faced behavior and realized she was mean and neglectful, and I am thankful this discovery was made before she actually harmed our son. If instead of discounting his complaints I had listened to him, he would have been far better served. On the other hand, adults have extraordinary power to influence what children express, feel, and recall. One side can easily persuade a young child to say something against another caretaker, and recent studies have proven that children can be manipulated to believe certain abuses have taken place that actually did not. Anyone representing a child’s best interests needs to take the time to investigate all claims and arrive at a measured, thoughtful, unemotional, unbiased decision on how to best accommodate that child.

When the guardian program began, judges began appointing attorneys—either paid or pro bono—to the task of representing children. After Judge David Soukup of King County (Seattle), Washington, developed a program in which volunteer advocates were supervised and trained by both attorneys and social workers, as well as represented by an attorney in court, it was endorsed by the National Council of Juvenile and Family Court Judges. Florida was first to pass legislation requiring a statewide program that allows either an attorney or volunteer to represent a child. In some regions an attorney is required by law, but a volunteer may assist that lawyer, while in other states both an attorney and volunteer work on every case. Experts disagree about which model is best and debate continues over who should fund these programs. There have been two studies comparing various advocacy programs (
National Evaluation of the Impact of Guardians ad Litem in Child Abuse or Neglect Judicial Proceedings,
1988, and
Who Best Represents the Interest of the Child in Court?
by John Poertner and Allan Press, 1990). Both determined that volunteers performed as well as attorneys with the exception that there were more adoptions in the cases handled by volunteers. Over and over again it has been shown that volunteers who are able to focus their concern and dedicate their time to a few cases are usually able to interview more people involved with a case, spend more time with the child, and thus make more reliable recommendations to the court.

Attorneys are still an essential part of the legal process, but their professional rules of conduct regarding their relationship with the client become confused when the attorney accepts the Guardian ad Litem role. Often a lawyer feels compelled to represent the child’s wishes rather than what he feels to be in the child’s best interests. And attorneys can be caught in conflicts about privileged communications because they are ethically bound not to reveal confidences of any client, whether adult or child. There is no problem if the attorney is hired to represent a child’s wishes, but when the attorney acts as Guardian ad Litem the situation becomes muddled. Also, occasionally the Guardian ad Litem is required to be called as a witness, something an attorney cannot be asked to do. Finally, if Guardians ad Litem learn of any abuse or neglect to the child, they are required to breach confidentiality, while an attorney does not have to do so.