Let’s apply the chicken-or-egg question to the child welfare “improvement” proposed by SB 1920, which will mandate a new state government department for state-compensated attorneys representing foster children in dependency hearings.
Which should come first – identifying the problem or implementing a solution? The answer may seem obvious, but as American Children’s Campaign listened to testimony presented in a Senate committee hearing, it’s clear some are moving too quickly to propose a solution for a problem that doesn’t exist, rather than digging further to understand the model that’s being proposed or the many negative unintended consequences.
The big problem with SB 1920? First it will require significant tax dollars but NOT directed at the most pressing problems to protect Florida’s abused children. Worse, it will put foster children more at risk and harm the TaxWatch award-winning Guardian ad Litem program, one of the few consistent bright spots in Florida’s child welfare system.
Key Facts that Haven’t Been Given Due Consideration
- The Guardian Ad Litem (GAL) model outperforms the Attorney model: In national publications, it appears to us that more than half of the top 10 states with the highest-performing child welfare systems utilize the GAL model. The attorney model is utilized in more than 50% of the 10 worst-performing states. For the metric “time spent in foster care before adoption,” Florida, which utilizes the GAL model, is considered best in the nation.
- The GAL will be removed from future cases involving vulnerable children who need their attention. At first, the dividing line was children over ten years of age. Today, the dividing line is children in licensed foster care and group homes. What will the dividing line be tomorrow? Regardless, GALs will not be involved with a range of children unless requested by the court or certain other conditions are met. This is not good.
- We’ve heard no outcry for the change. This appears to be driven by a narrowly focused special interest. We wonder, is there an obvious growling bear in the room? With following the money an important part of understanding developments in Tallahassee, we don’t believe that foster children will benefit most from this change.
- The proposal has many unintended negative consequences – The measure is a massive shift from how children are currently represented. We doubt concerned citizens and relatives of an abused child believe in a child’s ability to direct an attorney in the context of child-attorney privilege. Worse, a child could direct the attorney to represent their interest in returning to an environment where victimization and abuse is occurring.
- It is duplicative: Florida already has a high-quality program that exists in statute to protect the best interests of the child using attorneys and volunteer advocates– Guardian ad Litem. And they do call on other attorneys for extra assistance when needed. Further, judges already have the authority to appoint attorneys on cases in which they deem it appropriate.
- Fiscal impact relies on outdated and limited data: In a back-handed justification of the potential benefits, supporters of the attorney model appear to rely on a 12-year-old report from one unique county (Palm Beach) that clearly should not be utilized to extrapolate statewide financial impact decisions.
Questions EVERYONE Should be Asking:
Question: In cases where the child’s stated preference and best interest of the child differ, which will the attorney represent? How does client confidentiality relate to the child revealing abuse previously unknown to the state? SB 1920 will shift far away from best interest representation of the child under current statutes to direct representation, which allows for an attorney-client relationship. We seriously question those who believe a child could and should direct an attorney! How would a special needs child be able to articulate their needs for safety, well-being and what is in their best interest? Worse yet, what if a teen wanted to keep something secret, perhaps they’d run away, and no one knew where they were. Under this scenario and this proposal, an attorney could not be compelled by the Court or anyone else to override the child’s wish to keep something secret – that information would be withheld from the Court, caseworkers and everyone else.
Question: Under the proposed Attorney model, if a child wants to return to an abusive or neglectful home, will the attorney be bound to presenting this interest? Shouldn’t we consider children in dependency proceedings as victims? Just like many domestic violence or human trafficking victims don’t want to place blame on their perpetrators and many times return to that lifestyle, children are no different. Children inherently want to be with their bio parent(s). Under this proposal, if a child wanted to return to their still abusive or neglectful home, they could command their attorney to make that argument. This puts a terrible burden on vulnerable children and binds the Courts as well.
Question: Since the Guardian ad Litem program, in Florida statute, already represents the best interest of the child, how does the attorney model improve on this? The Attorney model doesn’t improve it. Presently, when a child comes into foster care, the judge orders a Guardian ad Litem appointment, which in turn assigns a Child Advocate Manager, a trained and certified volunteer, and a Child’s Best Interest Attorney. What is Child’s Best Interest? The Legislature enacted guidelines, which include among other things, “individual dignity, liberty, pursuit of happiness, and the protection of their civil and legal rights as persons in the custody of the state.” Best Interest Attorneys focus on expediting permanency for children, advocate for proper access or against the administration of psychotropic medications, initiative and appear at administrative hearings regarding denial of services for the child, appeal decisions that are not favorable to the child’s safety, welfare or best interest, the list goes on.
Question: Do cases exist where the expertise of other counsel is needed to augment representation already provided to the child, especially those with special needs? Yes. In 2014, the Legislature created and funded a special needs registry, which provides a right to appointment of an attorney for children with certain special needs – like victims of human trafficking, children who have defined developmental disabilities, those children prescribed psychotropic medications and those who currently live in or are being considered for placement in a skilled nursing facility or residential treatment. To our understanding this registry is working. Further, pro bono attorneys are growing in number, making themselves available to provide additional assistance.
Question: Isn’t this a boon to the state for the attorney model to draw down Title IV-E dollars? The Guardian ad Litem program can also draw down these dollars. Florida does not have to change its program to draw down federal funds. Statements to the contrary are not factual. For all these reasons, American Children’s Campaign supports the Guardian ad Litem program, which is superior to the newly proposed attorney model. As the independent voice for Florida’s children, we pride ourselves on being unabashed advocates for the best interests of children. American Children’s Campaign has worked for years to improve the child welfare system, taking on a multitude of issues, private and public agencies, and calling out the shortfalls and missteps. While there are many good child welfare bills under consideration this Legislative Session, this attorney model is not one of them.
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This Top Story is brought to you by Roy Miller and Karen Bonsignori