A Due Process Dilemma for Dependent Children: Why Children in Foster Care Should Have a Right to Subjective Legal Representation.

By Elizabeth Standifer

I. Introduction

The child welfare system is the embodiment of one of the most complex and delicate intersections of family autonomy, child protection, and state intervention.¹ When a child is removed from their home and placed into foster care or a guardian/kinship situation, the dependency court assumes a parens patriae role to safeguard the child’s well-being.² This legal doctrine allows for “a state or court [to have] a paternal and protective role over [dependent children which are] subject to its jurisdiction.”³ After a court asserts that it has parens patriae jurisdiction, it will assign a guardian ad litem (hereinafter referred to as “GAL”)  to the child’s case as their appointed lawyer for the child’s objective best interests in dependency litigation.⁴ This appointed guardian ad litem may be the only representation a child in foster care will be entitled to by courts (depending on the state that their case is in), will not be of the child’s own choosing, and is limited in their scope of representation as they do not advocate for the child’s expressed wishes.⁵

In this context, the question arises: should children in foster care be entitled to their own attorney who advocates for the child’s own subjective interests, one bound by an attorney/client relationship to follow the child’s expressed wishes and desired permanency outcome, or an objective guardian ad litem tasked with advocating for what they believe the child’s best interests are?⁶ While federal statutes and case law emphasize representation requirements based on the best interests of the child over the child’s expressed permanency wishes, thereby justifying the appointment of only a GAL, the categorical and federal denial of children’s access to independent counsel in their very own dependency proceedings raises significant due process concerns for one of America’s most vulnerable populations of children.⁷ This article contends that a juvenile court’s refusal and blockage for a child to have their own subjective representation is contrary to best public policy, undermines dependent children’s autonomy, restricts children’s participation rights within their own permanency cases, and constitutes a due process dilemma in juvenile courts across the United States.⁸  

II. Historical Foundations of Child Representation in Dependency Law

The concept of parens patriae originates in English common law, where the English Crown held the authority to protect those unable to care for themselves, including orphaned minors in the earliest of dependency cases.⁹ In the United States, this doctrine migrated into early juvenile courts, which were established in the Progressive Era with the goal of rehabilitating rather than punishing children who committed criminal offenses and/or who needed judicial assistance with positively realigning their lives.¹⁰ Early juvenile courts operated with great informality, often without legal representation for the children or their families, under the assumption that judges alone could protect children’s interests better than pesky attorneys participating in adversarial legal proceedings.¹¹

This judicial paternalism doctrine of parens patriae later came under scrutiny in the mid-twentieth century, particularly after the Supreme Court’s decision in In re Gault, which extended due process protections to juveniles in delinquency proceedings.¹² Gault expressly provided for a right to counsel for juveniles in delinquency cases. Although Gault did not directly address dependency proceedings, its reasoning emphasized that children, like adults, are entitled to certain procedural safeguards when liberty and fundamental rights are at stake.¹³ Despite this landmark decision, dependency courts have continued to resist granting children their own attorneys outside of a GAL, distinguishing between delinquency (where liberty is at risk with possible detention in juvenile facilities) and dependency (where child protection is the goal).¹⁴ However, children’s liberties within foster care are fundamentally at risk when they are involuntarily removed from the only place they know as home and are then involuntarily placed at a state-funded institution or group home chosen by a social worker with likely no input from the child themselves about their own living situation.

III. The Guardian ad Litem Model and Its Constitutional and Statutory Foundations

The GAL model is deeply rooted in the statutory landscape of child welfare law.¹⁵ Under the Child Abuse Prevention and Treatment Act (CAPTA), states receiving federal funds must provide representation for children in abuse and neglect proceedings, either through an attorney or a GAL; however, it leaves this option on representation open to the states.¹⁶ This statutory flexibility has allowed many states and jurisdictions to rely exclusively on GALs rather than independent subjective counsel, which has been driven by policy reasons and cost saving initiates.¹⁷

Courts have generally upheld this approach by emphasizing the “best interests of the child” standard, which can often be seen as overriding the child’s subjective preferences and voice.¹⁸ For example, in Santosky v. Kramer, the Supreme Court acknowledged the paramount importance of the child’s welfare in termination proceedings, though it did not mandate that children be provided independent counsel.¹⁹ Instead, the Court focused on procedural safeguards for parents while leaving representation of children to state discretion.²⁰

Scholars have criticized this arrangement as constitutionally insufficient, noting that a GAL is not the functional equivalent of legal counsel because the GAL is not bound to follow the client’s directives.²¹ Moreover, the absence of independent counsel creates a troubling asymmetry: parents and the state are represented by attorneys while the child, the central figure of the dispute and by-far the most vulnerable party involved, has only a surrogate, third-party, objective decision maker for representation.²²

IV. The Case for Independent Counsel for Children in Foster Care

Granting children their own attorneys would align dependency proceedings with the due process foundations and fundamental rights within America’s legal system.²³ Independent counsel would ensure that the child’s direct voice is heard, not filtered through the GAL’s interpretation of best interests.²⁴ Research shows that children with attorneys outside of dependency settings are more likely to experience greater satisfaction with the legal process and a better understanding of their case proceedings, which in turn allows them greater autonomy.²⁵

Additionally, independent counsel could help correct power imbalances in dependency courtrooms.²⁶ Parents often have attorneys to assert their rights and sometime indigient parents even have state-funded appointed lawyers when faced with termination of parental rights proceedings, and the state is typically represented by prosecutors or agency counsel of their chosing.²⁷ Without their own attorney, children risk being marginalized in proceedings that directly affect their lives.²⁸ Ensuring that children have subjective legal advocates would advance procedural fairness and substantive justice, especially considering that they are the victim in dependency proceedings.²⁹ American courts should not continue to afford greater rights, in terms of legal representation, to parents who caused their child/victims to go into care than the child/victim themselves.

V. Due Process, Autonomy, and Participation Rights

The denial of independent counsel implicates constitutional due process principles.³⁰ The Supreme Court in Mathews v. Eldridge established a balancing test for procedural due process, weighing private interests, governmental interests, and the risk of erroneous deprivation of rights.³¹ Applying this framework, the child’s interest in family integrity, safety, and permanency unquestionably carries a heavy weight toward the factor of private interests.³² The state’s interest in efficiency and cost savings is comparatively weak.³³ The risk of erroneous outcomes is heightened when children’s voices are minimized suggesting that due process requires greater protection as erroneous deprivation of children’s rights must be avoided in comparison with the state’s argument.³⁴ Even if a court gave deference to the state’s argument towards cost savings, what would then be their argument for disallowing a child subjective representation when the attorney is willing to represent them in their dependency case pro bono? At that point, there would be no cost to the state such that a court should never deny a child their right to subjective counsel. Even if dependent children were unable to secure representation of their own pro bono, states could alter their spending models to provide for subjective counsel for them in addition to or in replacement of the GAL model. Therefore, if the court does deny a child their right to subjective counsel, then it may be violating the child’s due process rights.

Beyond constitutional doctrine, principles of child autonomy and participation support the case for independent counsel in dependency cases.³⁵ The United Nations Convention on the Rights of the Child, though not ratified by the United States, affirms that children capable of forming views have the right to express them in proceedings affecting them.³⁶ Domestic advocates, including scholars and lawyers published by the American Bar Association, similarly call for attorneys to represent children’s expressed wishes, not just their “best” interests.³⁷ This shift recognizes children as rights-bearing individuals rather than passive objects of protection, as children in foster care are so much more than just that.³⁸

VI. Policy Considerations and Comparative Approaches

Policy considerations further underscore the need for reform.³⁹ Denying children independent counsel undermines legitimacy and trust in the very child welfare system that children already believe does not serve to protect them.⁴⁰

Several states already mandate independent counsel in certain circumstances, providing useful comparative models.⁴² For example, New York requires attorneys for children in all child protective proceedings, with clear ethical obligations to follow the child’s directives.⁴³ Other states, such as Texas and California, have hybrid systems allowing both GALs and attorneys depending on age or case complexity.⁴⁴ These approaches demonstrate that appointing counsel is feasible and beneficial.⁴⁵

Internationally, child representation is considered a fundamental right in many developed legal systems and countries.⁴⁶ The European Court of Human Rights has repeatedly emphasized the importance of child participation in family law cases.⁴⁷ The U.S. remains an outlier among developed countries by denying this right to children in need categorically at the federal law level.⁴⁸

VII. Recommendations for Reform

To address this due process dilemma, courts and legislatures should move toward universal appointment of SUBJECTIVE counsel for children in dependency proceedings.⁴⁹ Federal law could be amended to require attorneys rather than GALs under CAPTA, ensuring uniform protection for children across states.⁵⁰ All states should enact statutes clarifying that children’s attorneys owe traditional duties under the attorney/client relationship, such as the duties of loyalty and confidentiality, independent of the GAL model.⁵¹

Courts should also adopt developmental standards to guide representation, recognizing that even young children can express meaningful preferences with the aid of trained counsel.⁵² Moreover, hybrid approaches could preserve the role of GALs for best-interest advocacy while ensuring that children’s voices are directly represented by attorneys.⁵³ This dual approach would not only preserve the protective intent and purpose of dependency courts but also the constitutional right to due process for our most vulnerable population of children.

Additionally, funding structures at the legislative level could also be restructured to make subjective representation sustainable. Certain federal funding and incentives within CAPTA or other Titles could be conditional on compliance with subjective attorney requirements for children in their dependency cases. This change would encourage states to comply without imposing a significant burden financially. If a funding alteration in Congress is unattainable, then states could create models and partnerships with bar associations and/or child advocacy non-profits and law schools. Ultimately, reform should balance the protective aims of child welfare with respect for children’s autonomy and due process rights.⁵⁴ Only through statutory and structural reform can dependency courts fulfill their protective duties while respecting a child’s right to due process in their legal proceedings.

VIII. Conclusion

The lack of a federal mandate requiring independent counsel for foster children is a constitutional and public policy failure.⁵⁵ Dependency courts cannot fully safeguard children’s rights while silencing their voices in their own legal proceedings.⁵⁶ Ensuring independent counsel would bring juvenile courts closer to the ideals of due process, fairness, and child-centered justice and protection.⁵⁷ Until reform occurs, the child welfare system will continue to operate under a due process dilemma, leaving dependent children inadequately represented in proceedings that shape the rest of their lives.⁵⁸

1. See Martin Guggenheim, What’s Wrong with Children’s Rights 17 (2005).

2. See Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev. 995, 1050 (1992).

3. Parens Patriae, Black’s Law Dictionary (11th ed. 2019).

4. 42 U.S.C. § 5106a(b)(2)(B)(xiii).

5. See Ann M. Haralambie, The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 21 (1993).

6. See Emily Buss, “You’re My What?”: The Problem of Children’s Misperceptions of Their Lawyers’ Roles, 64 Fordham L. Rev. 1699, 1701 (1996).

7. See Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 670–72 (2006).

8. Id.

9. Woodhouse, supra note 2, at 1050.

10. See David S. Tanenhaus, Juvenile Justice in the Making 45–47 (2004).

11. Id. at 48.

12. In re Gault, 387 U.S. 1, 27–28 (1967).

13. Id. at 34–36.

14. See Donald N. Duquette, Child Representation in America: Progress Report from the National Quality Improvement Center, 46 Fam. L.Q. 87, 89 (2012).

15. Id.

16. 42 U.S.C. § 5106a(b)(2)(B)(xiii).

17. Duquette, supra note 14, at 90.

18. See, e.g., Santosky v. Kramer, 455 U.S. 745, 766 (1982).

19. Id.

20. Id. at 768.

21. See Haralambie, supra note 5, at 25.

22. Id.

23. Guggenheim, supra note 1, at 53.

24. Id.

25. See Duquette, supra note 14, at 112.

26. Id.

27. Huntington, supra note 7, at 671.

28. Id.

29. Id.

30. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

31. Id.

32. See Vivek S. Sankaran, A Cure Worse Than the Disease? The Impact of Removal on Children and Their Families, 102 Marq. L. Rev. 1161, 1180 (2019).

33. Id.

34. Id. at 1185.

35. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L. Rev. 1747, 1762–63 (1993).

36. U.N. Convention on the Rights of the Child, art. 12, Nov. 20, 1989, 1577 U.N.T.S. 3.

37. Am. Bar Ass’n, Standards of Practice for Lawyers Representing Child Clients 2 (1996).

38. Woodhouse, supra note 35, at 1763.

39. Guggenheim, supra note 1, at 88.

40. Id.

41. Duquette, supra note 14, at 113.

42. Id. at 114.

43. N.Y. Fam. Ct. Act § 241.

44. Tex. Fam. Code § 107.001; Cal. Welf. & Inst. Code § 317.

45. Duquette, supra note 14, at 115.

46. See John Eekelaar, The Emergence of Children’s Rights, 6 Oxford J. Legal Stud. 161, 175 (1986).

47. See M. & M. v. Croatia, App. No. 10161/13, Eur. Ct. H.R. (2015).

48. Id.

49. Guggenheim, supra note 1, at 143.

50. Id.

51. Haralambie, supra note 5, at 77.

52. Buss, supra note 6, at 1720.

53. Duquette, supra note 14, at 116.

54. Id.

55. Huntington, supra note 7, at 673.

56. Id.

57. Id.

58. Id.