Where Have We Heard That Before?

The following gem landed in our inbox:

Washington, D.C., February 2, 2012 — Leading children’s rights advocates from Florida and across the country will highlight the urgent need for abused and neglected kids to have lawyers protecting them in all court proceedings that impact their lives, during a media briefing on Thursday, Feb. 9 at 3 p.m., followed by a symposium on Friday, Feb. 10 from 8 – 4:30 p.m. at Nova Southeastern University’s Shepard Broad Law Center.

Now, where have we heard that before? Oh, yeah…

2011
“At least this time, since he’s being tried as an adult, Cristian will have a lawyer. The state of Florida doesn’t appoint attorneys for children in abuse/neglect proceedings, but only non-lawyer volunteers. Of course, Florida doesn’t have to worry about providing one for Cristian’s little brother—he doesn’t need one, not anymore. And the next time some Florida senatorial candidate runs on a platform to make America a ‘Christian country,’ the Devil might just die laughing.” Andrew Vachss, from his essay, “Once again, Florida lives down to its reprehensible record on ‘child protection’,” published December 2011 on the Zero.

“If Caylee Anthony is to leave any legacy aside from floral tributes and notes, Florida must do for her now what it did not do during her life: appoint a law guardian to protect her interests. That lawyer should immediately sue Casey Anthony and her parents, who aided and abetted her. If the suit is successful, the resulting recovery would not go to any of Caylee Anthony’s relatives, because, as defendants in the suit, they cannot benefit from the estate. Without any ‘beneficiaries,’ the recovery would ‘escheat,’ or return to the state of Florida. And the State could use the money to hire and train more child protective workers. It could institute a law-guardian system that would save money in the long haul … and start saving the lives of Florida’s children almost immediately.” Andrew Vachss, from his essay, “Getting to the truth about Caylee Anthony’s death,” published August 2011 on the Zero.

2009
“This is what I think about the court-appointed psecial advocate program, period. When it’s an adjunct to the child’s lawyer, I think it’s great. When it disfunctions as a substitute for the child’s lawyer, I think it’s disastrous. I think it’s horrible, and I think it is, in fact, abusive of children.” Andrew Vachss, from the Family of Choice webcast, January 2009

2006
“How about those ‘programs’ that provide warm, caring volunteers to ‘represent’ children in abuse and neglect cases? I don’t mean in addition to lawyers; I mean instead of lawyers. If you’re a child who’s accused of committing a rape, you have a Constitutional right to be represented by counsel: a lawyer, admitted to the bar, who can be held responsible in the event of inadequate performance. But if you’re a child who is believed to be a rape victim (of your own parents), what do you need a lawyer for, anyway? We’ll give you a ‘CASA’ or a ‘GAL,’ to be your ‘voice in court.’ To those who insist that this is equal to (or even better than) professional representation, I always tell them, ‘The next time you need a root canal, why don’t you go to a warm, caring volunteer instead of a dentist?’ ” Andrew Vachss’ essay, “A Long Time Coming: Closing New York’s Incest Loophole,” published by Protect.org, 2006

2004
“Why do some states refuse to provide legal counsel for children who are the subject of abuse or neglect cases, instead offering those most vulnerable victims the ‘services’ of volunteers with no legal training? Is that because the volunteers are more caring or because it’s so much cheaper that way?” Andrew Vachss’ article, “What Are You Going To Do About Child Abuse?,” published in Parade, August 2004

2003
“In Florida, if you are, say an incest victim? Your ‘parents’ … they’ll get lawyers. Guess what you get. You get a warm, caring volunteer, and I don’t mean a voluneer lawyer. I mean some amateur who’s just a nice person who likes kids. They get to ‘represent’ you. They can’t file motions, they can’t cross-examine witnesses, they can’t do any discovery, they can’t do investigations. But they can stand up in court and tell the judge what they think would be best for you. It’s a horrible system.” Audio recording from Andrew Vachss’ March 10, 2003, appearance at Barnes & Noble, 86th Street in New York City

2001
“When CASA volunteers are used as ADJUNCTS in the representation of a child, I couldn’t be more supportive. However, in jurisdictions where CASAs are used INSTEAD OF legal representation for a child, I think this is a pernicious denial of due process for children. The idea that a warm, caring volunteer could ‘represent’ a child who has putatively been abused by adults, who are themselves going to be represented by actual attorneys is, to me, a replication of the child’s situation in his or her own home. That is, not a fair fight.” Andrew Vachss, in an online chat on USAToday.com, October 2001

2000
“[P]lenty of states, like Florida, still don’t have [law guardians]. What does that tell you? Because with non-attorney guardians there’s no attorney-client privilege. There’s no ability to cross-examine witnesses, to subpoena evidence, to appeal. Basically you serve completely at the pleasure of the judge. And if you don’t please the judge, you’re history. What more of a message do kids need?” Andrew Vachss, from an interview in Journal For Living, Number 21, 2000

1991
“I will continue to advocate for what you call the New York system: attorneys representing children in abuse and neglect (and other related) matters. If CASA can provide assistance, that is a plus. It is not a substitute and, in my opinion, never will be. ” Andrew Vachss, in a letter to Beth Waid, Executive Director of the National Court Appointed Special Advocate Association, June 1991

1990
“I want to be very, very clear about this. Are [court-appointed advocates, such as guardians ad litem] useful? The answer is, they can be. Are they ever a substitute for actual representation by lawyers? No. Underline no. Repeat, NO. I think that concept represents one of the most pernicious trends in child protective work in this country today. There are states—and Florida is an excellent example—where a child who is the victim of abuse will not be represented by a lawyer but will be represented by a ‘court-appointed special advocate’ [CASA]. These people are not lawyers. Because they’re not lawyers, they can’t represent a child in terms of the totality of that child’s needs. They can’t file a motion. They can’t argue before a court with any kind of force. I’ll give you some concrete examples. If a child tells a secret to a court-appointed special advocate there is no attorney-client privilege. That child is not guaranteed the confidentiality that he would have in speaking to an attorney. We have a standard in American justice called effective assistance of counsel. Under that standard, if you’re accused of a crime and your lawyer is incompetent, your case could be reversed, because you’re entitled to minimal effectiveness. No non-lawyer can meet that standard. The whole Court Appointed Special Advocate concept gets its power from the idea that it’s cheap; it’s cost-effective. That’s utter nonsense. You look at a state like Florida that could provide a stream of attorneys for a Ted Bundy and can’t provide one attorney for an abused child. I think there’s such a moral difficulty with that, that it’s unresolvable.” Andrew Vachss, from an interview in Current Issues, Volume 1: Child Abuse, 1990

1989
“I am utterly baffled by your perception that ‘understanding of the child’s needs and wishes’ is best left to non-lawyers. National CASA may ‘find’ this is best—National CASA is hardly my idea of a disinterested, objective evaluator of its own programs. Any additional services offered to the subjects of child protective litigation is a plus—any substitution of counsel by lay people (regardless of justificatory rhetoric) is not.” Andrew Vachss, in a letter to Jane H. Shaeffer, State Director of the Guardian Ad Litem Program of Florida, October 1989

“Your statement that [CASA’s Guardian ad Litem] have ‘effectively’ represented more than 3,000 children to date is an expression of opinion, not fact. The United States Supreme Court has defined ‘effective assistance of counsel.’ Non-lawyers could not meet that standard. Thus, your position is simply that children who are the subject of child protective proceedings are not entitled to counsel. I profoundly disagree.” Andrew Vachss, in a letter to Dr. Ilene Gerber, Circuit Director of the Guardian Ad Litem Program of the Palm Beach County Courthouse Annex, September 1989

The bottom line is this:

• Non-lawyer “volunteers” [generically referred to as GALs, but including the heavily-funded “CASA” (Court Appointed Special Advocates) program] are not required to pass character and fitness requirements as lawyers are. They have no “screening” process that is anything close to adequate. And such as it does have is utterly self-contained, not reviewable by any outside (or objective) agency.
• They serve “at the pleasure” of any judge, and can be summarily dismissed if the judge wishes. Many judges would have wished to dismiss me for my fervent advocacy and refusals to “make a deal,” but the law prohibits such arbitrary action against lawyers.
• They are “agents of the court,” and cannot independently represent a child without the court’s “permission.”
• They may “investigate” only as permitted by a judge. They have no subpoena power, may not compel discovery, etc.
• They may not cross-examine witnesses, challenge motions, etc.
• Their “representation” carries no attorney-client privilege, and, indeed, they can be compelled to testify against their own “clients.” Do they warn the children that, should he or she disclose some crime they may have committed (which is an extremely common occurrence when representing abuse and neglect victims), the person they are confiding in is not prohibited by law from repeating what they heard? And may even be compelled to do so … on the witness stand?! See, e.g., “Colorado Supreme Court removes attorney-client confidentiality from children in some cases” (Denver Post, 11/03/2011) and “Colorado Supreme Court: Neglected and abused kids shouldn’t trust their lawyers” (Denver Westword, 10/26/2011).
• They are required to “report to the court.” Unlike lawyers, who can decide what is in their client’s best interests to reveal, they must turn over everything they “find.”
• Lawyers can intervene against bad agency decisions (such as a refusal to terminate parental rights or remove a child from an inadequate placement). Lawyers can ensure proper counseling, medical care, etc. for victims because a lawyer can always bring a lawsuit to enforce rights, or redress wrongs. Non-lawyer volunteers cannot do any of this.
• They cannot file appeals on behalf of a child.
• They are held to no standard of professional performance. A “bad result” case “handled” by a non-lawyer volunteer can not be reversed by the appellate courts on ground of “ineffective assistance of counsel.”
• They are not subject to professional discipline, loss of license, malpractice suits, and other sanctions … only lawyers are. Sure, there are lousy lawyers … and I endorse volunteers as adjuncts, even as “watchdogs,” to guard against (and report) inadequate lawyers. But what they want is to be “the child’s voice in court”—that was, in fact, CASA’s logo for many years, until it proved to be a political liability … because of professionals like myself pointing out what it really meant—and their program is to exclude lawyers or insist all lawyers involved work “pro bono,” knowing the latter will limit the number of lawyers actually involved in “their” cases.
• They all are, beyond argument, a lesser standard of legal representation than a lawyer. If any group on this earth is to be so stigmatized, must it be abused and neglected children? Would any adult settle for a “warm, caring volunteer” if he or she needed a lawyer? But, of course, children don’t vote, do they?
• To justify this judicially-sanctioned child abuse, the volunteers never fail to cite “the paucity of resources made available by state legislatures for the protection of children.” Whose fault is that? Shouldn’t the real efforts be aimed at correcting that atrocity instead of assisting it (which any non-lawyer “volunteer” program does, by allowing sociopathic or stupid legislators to claim that abused and neglected children are, in fact, being “represented”).
• As for the old canard about “overworked” lawyers: This is, in fact, the same issue … failure by the legislature to provide adequate funding for abused and neglected children … repackaged. Were the lawyers for Ted Bundy “overworked”?

How is this kind of disenfranchisement of children sold to the public? Easy. Congress just labels it “Child Abuse Prevention and Treatment and Adoption Reform.”

Check it out for yourself: 42 USC 67, sec 5106(b)(2)(B)(xiii)

Note the requirement that children have “representation,” which specifically and deliberately leaves out any requirement that such “representation” be provided by actual lawyers. That left a hole big enough to drive the CASA semi through, for one member of Congress to make sure his “earmark” privilege guaranteed heavy funding of “Children’s Advocacy Centers” (again, with no oversight provided or required), and plenty of cash for anything that can be called “prevention.” When I challenged a whole audience to show me proof that child abuse can be “prevented,” the only (tearful, impassioned) response was, “You can’t prove it doesn’t work!” True. But I can prove Congress doesn’t. See for yourself:

42 USC s.5106a (b)(2)(B)(xiii) – To be eligible for grant, state must require that “in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem … who may be an attorney or a court appointed special advocate…

(a) Development and operation grants

The Secretary shall make grants to the States, from allotments made under subsection (f) for each State that applies for a grant under this section, for purposes of assisting the States in improving the child protective services system of each such State in –

(2)(B) improving legal preparation and representation, including –

(ii) provisions for the appointment of an individual appointed to represent a child in judicial proceedings;

(b) Eligibility requirements

(2) Contents
A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including –

(B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes –

(xiii) provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings –

(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and

(II) to make recommendations to the court concerning the best interests of the child;