Summit on Direct Representation
October 21, 2022 | 10 am – 3 pm | Virtual via Zoom
The Family Representation Commission is hosting a Virtual Summit on Direct Representation for children in abuse and neglect cases. Under Direct Representation, the Court would appoint an attorney for children who are parties in an abuse and neglect case. The child’s attorney would represent the child’s expressed interests, providing the same manner of legal representation and bound by the same duties to the child as are due an adult client, in accordance with the rules of professional conduct.
The Family Representation Commission wants to hear from child welfare stakeholders about Direct Representation. The Summit will include presentations on Direct Representation followed by facilitated breakout groups.
|10:00||Welcome||Supreme Court Justice Briana Zamora and Chief Judge DeLaney, FRC Chair|
|10:15||Presentation: Direct Representation for children and young people who have the cognitive and communicative ability to direct their representation||Allison Green and colleagues, National Association of Counsel for Children (NACC)|
|11:00||Breakout Sessions by Affinity Group||Session Facilitators|
|12:15||Presentation: Models of Direct Representation for children and young people who do not have the cognitive and communicative ability to direct their representation||
Julia Healy, Esq., MA Public Counsel Services
Lisa Kelly, Univ of Washington School of Law
|1:45||Breakout Sessions by Affinity Group||Session Facilitators|
|2:30||Report Out||Summit Facilitator|
Pursuant to the recommendations of the Family Representation Commission, and with the support of a wide range of child welfare stakeholders, the 2022 NM Legislature passed a statute creating the Office of Family Representation and Advocacy (OFRA) as an independent adjunct agency in the Executive. OFRA will provide legal representation for children and parents in child abuse and neglect cases, with a hybrid model of both employed and contract attorneys, and an Interdisciplinary Legal Team practice model. OFRA will commence operations July 1, 2023.
The Family Representation Commission (FRC) is completing its work and preparing recommendations for the OFRA Oversight Commission. The FRC has been studying Direct Representation since late 2019 and has reviewed the recommendations of the National Association of Counsel for Children, the ABA Center on Children and the Law, the Family Justice Initiative, the Children’s Representation Workgroup, and others. The FRC has also looked at practices in several other states. Nineteen other states have Direct Representation (expressed interest) for at least some clients. And of course, New Mexico has Direct Representation for youth aged 14 and older.
The Family Representation Commission (FRC) is unanimously recommending that New Mexico move from GAL/best interests representation to Direct Representation (i.e., representation and advocacy of the child’s expressed interests) for children and young people who have the cognitive and communicative ability to direct their representation.
More challenging is representation for children and young people who do not have the cognitive and communicative ability to direct their representation, such as infants and pre-verbal children. Other states have adopted different models of representation to accomplish the goal of high-quality legal representation for these children, including the best interest, substituted judgment, and legal rights/legal interests models. The Family Representation Commission has not yet made its recommendation about the model for children and young people who do not have the cognitive and communicative ability to direct their representation.
Click the plus sign + for specifics under each area
Overarching Findings & Principles
The Family Representation Commission’s research into Direct Representation yields a starting list of principles and findings driving the move to Direct Representation.
- Best-interest representation has been critiqued in the legal community nationally as an improper model of attorney representation. A common argument made against this model is that it assumes an attorney is qualified to determine what is best for a child in a difficult situation. Attorneys are not formally trained or licensed experts in child welfare or infant mental health, and so expecting the attorney to be able to discern the best path forward for a particular child assumes an expertise the attorney simply does not (WA)
- A well-functioning child welfare system must recognize that children and parents are parties to child welfare proceedings and are entitled to all the rights of parties, including the right to notice of the proceedings and the right to appear before the court and present arguments, evidence, and sworn testimony. As parties to child welfare proceedings, children and parents must have a right, through either statute or case law, to independent legal counsel. (FJI)
- Direct Representation means the attorney-client relationship for the child’s attorney is fundamentally indistinguishable from the attorney-client relationship in any other situation and includes duties of client direction, confidentiality, diligence, competence, loyalty, communication, and the duty to provide independent advice. (ABA Model Act)
- The attorney who provides legal services for a child owes the same duties to that client as is due an adult client, including undivided loyalty, confidentiality, and competent representation (ABA Model Act)
- Client direction requires the attorney to abide by the client’s decision about the objectives of the representation. In order for the child to have an independent voice in abuse and neglect proceedings, the attorney shall advocate for the child’s counseled and expressed wishes. (ABA Model Act)
- Providing the child with an independent and client-directed attorney ensures that the child’s legal rights and interests are adequately protected. (ABA Model Act); Well-trained attorneys will make sure legal rights around health, safety, and well-being are (WA Standards)
- Attorneys who provide direct representation have different skills and obligations than guardians ad litem and court-appointed special advocates, especially in forming a confidential and privileged relationship with a (WA Standards)
- Attorneys who provide direct representation should be trained in meaningful and effective child advocacy, the child welfare system and services available to a child client, child and adolescent brain development, child and adolescent mental health, and the distinct legal rights of dependent youth, among other (WA Standards)
- Attorneys who provide direct representation will provide legal counsel to a child on issues such as placement options, visitation rights, educational rights, access to services while in care and services available to a child upon aging out of (WA Standards)
- Attorneys who provide direct representation will ensure the child’s voice is considered in judicial proceeding and that the child is engaged in his or her legal proceedings. (WA Standards)
- Attorneys who provide direct representation will encourage accountability, when appropriate, among the different systems that provide services to (WA Standards)
- Moving to a direct representation model does not preclude a Best Interest Advocate (e.g., CASA), but a Best Interest Advocate does not replace the appointment of an attorney for the child. The Best Interest Advocate assists the court in determining the best interests of a child and will therefore perform many of the functions formerly attributable to guardians ad litem, but Best Interest Advocates do not establish an attorney-client relationship with the child.
Child’s Attorney / Expressed Interest / Direct Representation (often used interchangeably)
These terms describe a legal professional, duly licensed by a bar association or state supreme court, who advocates for the child or youth’s expressed wishes. The attorney owes the same duties of professional responsibility (ex. loyalty, confidentiality, etc.) to the child client as would be due to an adult client. Expressed interest representation involves active client counseling and investigation. This model may also be described as “stated interest” or “client directed” legal representation. (NACC)
Substituted Judgment is a method of legal representation for children and young people who do not have the cognitive and communicative ability to direct their representation. The representation is guided by the attorney’s understanding of what the client would request if they were able to verbalize their goals. Attorneys make firsthand observations of the client, conduct an independent investigation, and seek guidance from collateral sources (family, supports, child development experts, and other professionals) to develop a substituted judgment position. (NACC)
Legal Rights/Legal Interests
Legal Rights/Legal Interests is a method of legal representation for children and young people who do not have the cognitive and communicative ability to direct their representation. Attorneys represent the legal rights as required by applicable statutes – reasonable efforts, placement, and many more. The determination of the child’s legal interests should be based on objective criteria as set forth in the law that are related to the purposes of the proceedings. The criteria should address the child’s specific needs and preferences, the goal of expeditious resolution of the case so the child can remain or return home or be placed in a safe, nurturing, and permanent environment, and the use of the least restrictive or detrimental alternatives available. (WA Article)
Guardian ad Litem (GAL)/Best Interest Representation (often used interchangeably)
These terms describe a legal professional, duly licensed by a bar association or state supreme court, who is appointed by the court to advocate for the child or youth’s best interest, based upon the attorney’s own assessment after conducting an independent investigation. Although advocates for a child’s best interests are not bound by the expressed wishes or litigation objectives of the child, in most jurisdictions they have a concomitant responsibility to inform the court of the child’s wishes. While some jurisdictions use the term “GAL” to describe a lay advocate, that is not how the term is used in this document. (NACC)
Cognitive and Communicative Ability to Direct Representation
The FRC is recommending: Cognitive ability means having the skills to acquire and process information; to understand the nature and consequences, at an age-appropriate level, of actions and activities related to the child abuse and neglect case, including but not limited to benefits, risks and alternatives; and to make decisions about those actions and activities. Communicative ability means having the skills to listen and speak (or otherwise communicate, for example, through sign language); to exchange thoughts and ideas; and to describe and convey decisions about actions and activities related to the child abuse and neglect case.
Other jurisdictions use the term “Diminished Capacity”, i.e., the state of being unable to direct legal counsel because the client lacks the sufficient ability to communicate or the attorney is unable to reasonably ascertain their position, as explicated by ABA Model Rule 1.14. A child’s age alone is not dispositive of diminished capacity, which must also take into consideration their developmental, cognitive, and communicative abilities. (NACC)