I sometimes joke that I am a “good” attorney as opposed to the stereotypical attorney who has no definable morals and is bound by little ethics. I chose
my specialty, children’s rights and advocacy, at an early age following the high profile death of a child returned to a birth parent from foster care,
because I truly wanted to make a difference, and entered the field ready to save the world. My sense of morality and justice brought me to this practice,
as I believe many come into child welfare, whether you are a caseworker, social worker, foster or adoptive parent.
As an attorney for the child (AFC) in New York City it is my responsibility to give children who have been harmed or are at risk of being harmed a
chance to meaningfully participate in their cases. AFCs are independent actors whose duty is to their client, to understand and develop his or her voice
through the lawyer-client counseling process, which includes building rapport, respect, and trust. At my office, The Children’s Law Center of New York
(CLCNY), our mission is to give a child a strong and effective voice in a legal proceeding that has a critical impact on his or her life.
The AFC is a zealous advocate that is prepared to litigate the particular legal and factual issues that arise from the child protective case. However, the
role of the AFC often involves responsibilities not ordinarily associated with the job of a lawyer which makes the role truly unique. The AFC often
monitors the treatment and services the child is receiving while in foster care, intercede on the child's behalf to help obtain services or financial benefits,
and seeks redress if necessary. AFCs in NYC generally take a client-directed advocacy approach unless the child is of insufficient age, intelligence, or
maturity to provide much information or guidance, or their decision would place them at imminent risk of physical or emotional harm. Therefore, if a child
is of sufficient age, intelligence and maturity, the AFC will take direction from the child on decisions such as placement, reunification, or adoption.
An AFC “has a duty to explain to the child, in a developmentally appropriate manner, all information that will help the child to understand the
proceedings, make decisions, and otherwise provide the lawyer with meaningful input and guidance.” The lawyer’s duties as counselor and advisor
include:
• Developing a thorough knowledge of the child’s circumstances and needs.
• Informing the child of the relevant facts and applicable laws.
• Explaining the practical effects of taking various positions, which may include the impact of such decisions on the child and other family members or on
future legal proceedings.
• Expressing an opinion concerning the likelihood that the court will accept particular arguments
• Providing an assessment of the case and the best position for the child to take, and the reasons for such assessment.
• Counseling against or in favor of pursuing a particular position, and emphasizing the entire spectrum of consequences that might result from assertion
of that position.
A child having independent legal representation is controversial in many states as excluding children from participation in matters that affect them is a
knee jerk reaction with the premise that this will protect them. Just by the status of being a child it is thought that involving them and hearing their
thoughts is putting a burden on them. The fact is that the foster child’s voice in the process is as critical if not more important than the other adults in
the courtroom. It is their lives that are impacted and altered by their parents’ behaviors or child welfare services’ actions. Who but the foster child can
offer the best perspective about what it means to be in their shoes and what they most hope for at the conclusion of the litigation.
But AFCs also represent the voiceless. Years ago I represented Faith* from infancy to the age of five. Her case is representative of an extreme
example of when the role of the AFC can make a critical difference.
When the government removes a child from parents who are alleged to be abusive, neglectful, or otherwise unfit, at a minimum a child welfare agency is
charged to place the child in a safer physical environment than the one they were in. During Faith’s second removal from her mother, I became
extremely concerned that Faith’s physical well-being was being greatly impaired and even neglected while she was in the custody and care of the
contract agency employed by the Administration for Children’s Services (ACS).
Prior to her second placement in foster care Faith weighed 24 pounds, however, after her placement her foster home her weight plummeted to 19
pounds. 18 months later, a year and a half after her placement, Faith only weighed 21 pounds (three pounds less then when she entered foster care)
and was diagnosed by the contract agency’s doctor with “Failure to Thrive” – a diagnosis which often triggers immediate child welfare intervention and
removal from a biological parent. However, as a foster child, Faith simply got a GI referral and a follow-up appointment in 6 months.
As a result, the social worker teaming with me on behalf of Faith called in a report of suspected abuse or neglect to the State Central Registry given our
serious concerns that the foster parents were not feeding or were withholding food from Faith. Alarmingly, the field investigator failed to make time to
speak in detail with the social worker, the source of the report, until one full week later, relying instead on the agency’s representations about the quality
of care that Faith was receiving in the foster home.
Owner/Editor - Chris Chmielewski