Who Speaks for the Child?
Children’s Rights Clinic gives voice to children who’ve been removed from their parents and homes
Sept. 29, 2008
Last April 7, Judge Barbara Walther in San Angelo, Texas, signed an order to remove more than 450 children from the nearby Yearning for Zion Ranch, kicking off what promised to be the largest child custody case in U.S. history. Amid the media frenzy that descended on West Texas, Walther faced another task: securing an attorney for each of those children and making sure they had the appropriate training.
For help, she turned where judges and child welfare professionals have been turning for almost 30 years: the Children’s Rights Clinic at the University of Texas School of Law.
By the wee hours of the morning of April 11, Children’s Rights Clinic faculty members Charles Childress and Lori Duke were headed to San Angelo, where they would train volunteer attorneys from across the state in the intricacies of representing children. Texas law requires that any child removed from the home for abuse or neglect be appointed an attorney–called an “ad litem,” meaning “for the case”–to represent him or her. Ad litem training is required of any attorney representing a child.
“They were under the gun to get something in place with the timeline they had,” Childress says. “You have 14 days after the department is given temporary custody of a child until the first hearing. I gathered and updated materials I had presented many other times, and we headed to San Angelo.”
Childress and Duke provided training to more than 50 attorneys on April 11, and their presentation was videotaped and made available to additional attorneys. Subsequently, Childress, Duke, and Children’s Rights Clinic faculty member Leslie Strauch recorded a training video the Texas State Bar is still using.
The training goes over the specifics of child protection litigation in Texas, but it also covers the complexities of the ad litem attorney’s primary role: speaking for a child. An ad litem attorney is appointed to represent the child in court, communicating to the best of his or her ability the desire of the child in the case. Many attorneys are surprised by this role.
“All of these attorneys from all over the state came to San Angelo and said, ‘We want to help,’” Duke says. “But about half the people in the room were shocked to discover that you have to follow the direction of a child. If the child can form an attorney-client relationship, communicate their desires and no exceptions apply, the child directs the attorney.”
Before 1979 no one spoke specifically for the child. The courts and Child Protective Services were focused on the best interest of the child, but the child was not represented. That changed when the Texas Legislature, responding to a court case that had reached the U.S. Supreme Court, passed a bill providing for the appointment of an attorney ad litem in all cases where the state sought custody–either temporary or permanent–or termination of parental rights.
At the time, no attorneys in the state had experience doing this work. The Children’s Rights Clinic was born the following fall.
Founded by professors Jack Sampson and Cynthia Bryant, both of whom are still on the School of Law faculty, the Children’s Rights Clinic set about providing representation for children in Travis County who were removed from their home and training law students to provide that representation.
From the beginning it was clear that the work of speaking for a child in a custody case was complicated, and there were no precedents to turn to.
“There really wasn’t any place we could go to find out what you’re supposed to do to be a lawyer who represents somebody who, for instance, crawls on the floor and can’t talk to you,” Bryant says. “What were our responsibilities to the client? Jack [Sampson] and the students and I were involved in making decisions about that.”
To do so, they examined the ethical requirements of lawyers. They sought similar areas where a client might be diminished in his or her capacity to communicate with the attorney. They met with child development experts to understand how children form relationships at different ages.
Over time, they developed some guidelines about how ad litem attorneys work with their clients. For example, there are very few instances in which an attorney can substitute his or her judgment for that of the child.
“If you are appointed as an attorney for a child and the child is under age, it doesn’t mean the client isn’t in control of the case,” Sampson says. “If you have a 14-year-old who wants to go home, it’s the obligation of the attorney to seek that goal.
“The test is not whether what the child wants will be in the best interest of the child. The test is whether what the child wants will be ‘seriously injurious’ to the child. Only then can an attorney veto the child’s request.”
As the attorneys and students at the Children’s Rights Clinic were making decisions about how to represent children, they were also helping shape the law. Sampson is one of the foremost experts on family law in the state, and has helped write the bulk of the code related to that law. School of Law Dean Larry Sager recently awarded Sampson a distinguished service award for his extraordinary commitment to improving the laws that affect Texas families and to educating students through the clinic.
Bryant has been appointed by the Texas Supreme Court to several task forces, notably one that studied the foster care system. Recognizing that child custody cases often dragged on for years, leaving the lives of the children in limbo, the task force proposed that any time a child is removed from a home for abuse or neglect, the case would need to be resolved within that year. In 1997, the Legislature enacted and the governor signed the recommendation into law, resulting in the strongest law in the country to protect children in the system.
Bryant sees her role on such committees to represent the Children’s Rights Clinic and its extensive experience with children.
“You cannot overestimate the impact this clinic has had on the law,” Bryant says. “The Children’s Rights Clinic has been involved in every piece of legislation that affects abused and neglected children in this state for almost 30 years.”
Still, the clinic has never lost its focus on the day-to-day work of representing children and giving law students the opportunity to get experience in court. In the fall and the spring, the students and faculty of the clinic take on a large percentage of the cases initiated by Child Protective Services in Travis County.
Strauch and Duke work as supervising attorneys at the clinic, overseeing about a dozen law students. Each student is assigned three ongoing cases and receives three new cases over the course of the semester. Students are the primary attorneys on the case and are responsible for meeting with their clients and representing them in court.
The task can be large. The first hearing happens within 14 days, and student attorneys are charged with meeting with the children they represent and entering a legal world that includes children, parents, extended family, Child Protective Services, social workers, court appointed special advocates for the children, and often mental health and medical personnel.
“We have a wide range of clients, from one week old to 17, almost 18 years old,” Strauch says. “We teach students how to get information from and talk to their clients, and how to see themselves as a player in the process. The clinic allows students to put to work all the things they’re learning in the classroom. In the end, they are better prepared and have better tools than many practicing attorneys.”
The experience the clinic offers students is invaluable for all students, but for some, it opens up career possibilities. That was the case for Duke, who was a student in the clinic in the 1990s and then pursued a career representing children.
“It was a great experience,” Duke says. “After taking the clinic, I knew that was what I wanted to do. I got to work with people, I felt like they were important issues, and it was interesting work.”
She went on to have her own practice representing children as well as to work as staff attorney for a judge who presided over those cases in court. Now back at the School of Law as a faculty member and supervising attorney at the clinic, she’s excited to have the opportunity to give students the opportunity to work with children in court.
“I think there is a real need for good ad litems for kids,” she says. “It’s an area of the law that is very specific and not very well known. The clinic is a good opportunity to make sure people are aware of the issues and what an attorney’s obligation is to a child.”
So are trainings like the one Childress and Duke did in April in San Angelo. Clinic faculty have long made their expertise available to individuals and organizations across the state, and Childress has been tapped repeatedly in recent years to provide ad litem training in cities from Houston to El Paso.
But faculty never forget that at its heart the Children’s Rights Clinic exists to speak for children, children whose voices might not otherwise be heard in the courtroom. In fact, the one thing clinic faculty, past and present, won’t tell you is what cases have stood out or been most important. While the media may shine a light on high profile cases like that of the Yearning for Zion Ranch, the faculty and students know that every time they are representing a child in court, the work is critical.
“These are really important cases, and when they go to trial, arguably some of the most important cases at the court house,” Strauch says. “You’re not talking about money. You’re not talking about property. You’re talking about a kid and what’s going to happen to that child until they are 18. What we do and teach here is really important.”