Children’s Advocacy Institute of the University of San Diego School of Law
The Children's Advocacy Institute (CAI), founded in 1989 at the nonprofit University of San Diego School of Law, is one of the nation's premier academic, research, and advocacy organizations working to improve the lives of all children and youth.
In its academic component, CAI trains law students and attorneys to be effective child advocates throughout their legal careers. Its Child Advocacy Clinic gives USD Law students three distinct clinical opportunities to advocate on behalf of children and youth, and its Dependency Counsel Training Program provides comprehensive training to licensed attorneys engaged in or contemplating Dependency Court practice. Conducted through its offices in San Diego, Sacramento, and Washington, D.C., CAI's research and advocacy component seeks to leverage change for children and youth through impact litigation, regulatory and legislative advocacy, and public education. Active at the federal and state levels, CAI’s efforts are multi-faceted — comprehensively embracing all tools of public interest advocacy to improve the lives of children and youth.
THE CASE
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With support from the Barbara McDowell and Gerald S. Hartman Foundation, the Children's Advocacy Institute will file litigation in federal district court seeking to establish an absolute right to counsel for abused or neglected children in judicial proceedings that will forever impact their lives. These proceedings, generally referred to as Dependency Court proceedings, determine every fundamental aspect of an abused or neglect child’s life: by whom the child will be raised; where the child will live; when will the child see his/her siblings, relatives, friends; where will the child go to school, et al.
Most states recognize an absolute right to counsel for indigent parents in these proceedings, considering the magnitude of the court’s authority—the termination of parental rights. Is an order terminating a parental relationship any less of a constitutional taking for the child than for the parent? The time has come to recognize a right to legal representation for the abused and neglected children who are the central figures in these proceedings.
Thus far, one court has found that abused and neglected children have fundamental liberty interests at stake in the judicial proceedings determining their fate, such as the child's interest in his/her safety, health, and well-being, and an interest in maintaining the integrity of the family unit and in having a relationship with his/her biological parents, to the extent possible. In Kenny A. v. Perdue, the U.S. District Court for the Northern District of Georgia recognized that these children are subject to placement in a wide array of different types of foster care placements, including institutional facilities where their physical liberty is greatly restricted. Also, the court found that as parens patriae, the government’s overriding interest is to ensure that a child's safety and well-being are protected, and that such protection can be adequately ensured only if the child is represented by legal counsel throughout the course of the judicial proceedings. Unfortunately, Kenny A. is not followed in many states.
The federal Child Abuse Prevention and Treatment Act requires that in every case involving a victim of child abuse or neglect that results in a judicial proceeding, a guardian ad litem who may be an attorney or a court appointed special advocate (CASA) (or both), shall be appointed to represent the child in such proceedings, to obtain first-hand, a clear understanding of the situation and needs of the child, and to make recommendations to the court concerning the best interests of the child. CAI fully respects and supports the role that lay CASAs play in the lives of these children. However, the complexity of these legal proceedings, the significance of the children’s rights and interests that are before the court, and the need to recognize and treat children as full parties necessitates the appointment of counsel (in addition to CASAs) to represent these children. Otherwise, CASAs are put in the untenable position of performing duties that are reserved for licensed attorneys.
If successful, CAI's litigation will put in place an absolute right to counsel for abused or neglected children throughout the country.
CASE UPDATES SINCE GRANT YEAR
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After the grant concluded, CAI filed its complaint in U.S. District Court for the Southern District of Indiana. The lawsuit sought certification of a class of more than 5,000 children and sought declaratory and injunctive relief that would require appointment of licensed attorneys to represent children in Child in Need of Services proceedings. Unfortunately, we did not succeed, despite making every effort possible. The District Court dismissed the case, we lost on appeal to the Seventh Circuit, and the U.S. Supreme Court denied our petition for writ of certiorari.
However, on a related front, CAI has been urging Congress for years to amend CAPTA to require the appointment of counsel to foster children involved in legal proceedings. We are cautiously optimistic that this might finally become a reality as part of the pending CAPTA Reauthorization Act.
CASE UPDATE - 2020
CAI filed its complaint in U.S. District Court for the Southern District of Indiana in February 2019. The lawsuit seeks certification of a class of more than 5,000 children and seeks declaratory and injunctive relief that would require appointment of licensed attorneys to represent children in Child in Need of Services proceedings.
At this writing, the case is nearing the end of discovery and dispositive motions are due to be filed in March 2020. CAI and its co-counsel have provided expert declarations on the need for counsel that constitutionally compels it from two of the nation’s leading experts, Professor Clark Peters of the University of Missouri and Don Duquette of the University of Michigan School of Law and leader of the federally-funded major study of child legal representation in dependency court.
Trial is scheduled to commence in December 2020.
GRANT AMOUNT
$25,000 (2018)
MEDIA
CHRONICLE OF SOCIAL CHANGE: Lawsuit Seeks Constitutional Right to Counsel for Kids in Three Indiana Counties
THE CITY COUNTY OBSERVER: Suit seeks to require counsel for kids in CHINS cases
INDIANA LAYWER: Suit seeks to require counsel for kids in CHINS cases
FOX59: Lawsuit looks to provide legal counsel for Indiana kids involved in child welfare cases
“The Children’s Advocacy Institute is truly grateful for the funding provided by the Barbara McDowell Foundation. The Foundation’s support enabled us to lay the groundwork for this critically important lawsuit—which if successful, will ensure that all of the nation’s abused and neglected children are represented by legal counsel in the judicial proceedings that determine every aspect of their lives.”
—CAI Executive Director Robert C. Fellmeth, Price Professor of Public Interest Law at the University of San Diego School of Law