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December 2020Vol. 21, No. 9Fearless Lawyers Lift Up the Child's Voice

Written by Angela Vigil, pro bono partner and executive director of pro bono practice, Baker & McKenzie, LLP, Miami, FL

An accusation of abuse, neglect, or abandonment. A confirmation that a child's safety is in jeopardy. There is harm or serious threat of harm. What's next?

What happens from there depends on how enlightened the system is. Maybe services are given to a family to help strengthen it and help it stay together. Maybe a temporary removal to relatives or trusted caregivers may result. Maybe the case evolves to full removal and court involvement. Of course we should try to keep families together. Of course we should look at abuse like a symptom, and not the disease. Treat it, strengthen the family, and then see if you can keep families together or keep them together as much as possible. But if that fails and the child enters the court system, the same focus on the best interests of that child should not slow or change.

It is not what anyone wants, but if the system does end up in court, enlightenment should continue to guide the way and the whole purpose of the case should not change. The child should remain at the center of the matter between the system, the case, and the court. And while we protect the rights of all parties, the central purpose of the entire proceeding system and industry should still focus on the child. The hundreds of people employed in the system should still focus on the child. And the focus of the legal system, which is so often distractedly focused on itself or the laws and systems that govern it, should instead remain on the child.

So, shouldn't the child's voice be the most important one heard in that court system? How do you promote that voice? You give it support. You amplify it by tasking professionals with lifting that voice, making sure it is meaningfully heard, making sure it affects the proceedings, and, of course, making sure it is never stifled or ignored. If that communication happens in a court or legal proceeding, then it is governed and structured by a system of laws, regulations, administrative rules, precedent, and judicial reasoning. The supporters of that child's voice be educated and versed in the same laws, regulations, administrative rules, precedent, and judicial reasoning. The assigned advocate who lifts up that voice must help ensure the child's voice can come through the cacophony of court and legal proceedings. That support must come through a lawyer for the child.

In addition to being knowledgeable and specialized in the child welfare system, lawyers also need to be brave enough to be sometimes unpopular among the other actors in the system. They need to be fearless. Despite advocating for things that others strongly believe are not in a child's best interests, they need to be relentlessly dogmatic in their confirmation that—right or wrong—the child's voice will be meaningfully considered. It is not the lawyer's job to advocate for what the lawyer thinks is in the child's best interests; rather, they should fight for what the child believes is best for him or her. Others in the system may disagree, and they, too, should be heard to inform each other and the decision-makers. Everyone can share with the court facts and incidents in a child's life, but it is a lawyer's job to weave all of it together even between court dates and caseworker appointments.

To keep the court responsive and moving toward permanency, a child's lawyer has many tools. Fearless lawyers can do all kinds of important things that make a meaningful difference in each day of a child's life, including the following:

  • Motioning the court for therapy and other mental health services
  • Advocating for placement with relatives
  • Fighting for culturally and racially sensitive services, treatments, and homes for children
  • Urging the court and system to make arrangements to set up visits and reunions with siblings
  • Counseling child clients to share their needs with the court, caseworkers, therapists, teachers, foster care providers, and family members
  • Being the voice of children in court when they want to ask for something from the court or other system actors
  • Tackling discrimination against lesbian, gay, bisexual, transgender, and queer or questioning children and youth
  • Advocating with schools for better services for children

Most importantly, the lawyer must keep the voice of the child in everyone's ears and all decisions and actions even when it is unpopular. Lawyers must make sure the child is called on in court by asking a judicial officer to address them. A lawyer can raise the child's questions and concerns. They can do things as simple as advocating that court hearings happen around the child's schedule, not just around the schedules of all the adult professionals.

On television shows and movies, the case is usually all about the lawyer, the court, or the system.

Lawyering for children is nothing like that. A child's lawyer in a child welfare proceeding is all about the child client. It is a counseling role where lawyers take direction and guidance from the child they are representing. They spend a majority of their time discussing options with and for the child. They are constantly questioning stakeholders in the system about what they should be doing for the child and what steps are being taken toward the fastest and most effective route to permanency and family.

A child's life and, therefore, a child's case, moves like an ocean wave—always changing, as life does, but also moving toward the shore of permanency and family. And a good lawyer never lets anyone's attention stray from the child. They remain fearless to help their child clients be fearless in what can be a frightening world.

If you are a 15-year-old girl, dragged into the system when you were running from home and trading sex to survive because the grandmother you were left with is a drug addict, you need a system that accepts you as an active participant. You are not merely the object of that process. You may not be popular among workers, court personnel, judicial actors, or teachers. You may have no other biological family the system can find for you. You need to make sure that the day-by-day steps you take lead to a safe and successful life. You need every part of the system and everyone in it to be focused on the path to normalcy and permanency to bring families together. But if you end up in the court system, you need a lawyer focused on your expressed interests and needs, to make sure the system returns you to "home," whatever that looks like. You need an advocate relentlessly focused on keeping you in the center of everyone's minds, no matter how busy they are and no matter how many other children are on their dockets. Lawyers must be fearless so children know no more fear. That is justice.