A (Very) Brief Summary of the Realities of CASA

• • Non–lawyer GALs (hereinafter generically referred to as “CASA” … “Court Appointed Special Advocate” volunteers) are not required to pass character and fitness requirements as lawyers are. CASA has 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.

• • CASAs 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.

• • CASAs are “agents of the court,” and cannot independently represent a child without the court’s “permission.”

• • CASAs may “investigate” only as permitted by a judge. They have no subpoena power, may not compel discovery, etc.

• • CASAs may not cross-examine witnesses, challenge motions, etc.

• • CASA “representation” carries no attorney–client privilege, and, indeed, CASAs can be compelled to testify against their own “clients.” Do CASAs warn the children that, should the client discloses 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?!

• • CASAs are required to “report to the court.” Unlike lawyers, who can decide what is in their client’s best interests to reveal, CASAs 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. CASAs cannot do any of this.

• • CASAs cannot file appeals on behalf of a child.

• • CASAs are held to no standard of professional performance. A “bad result” case “handled” by a CASA cannot be reversed by the appellate courts on ground of “ineffective assistance of counsel.”

• • CASAs 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 CASAs as adjuncts, even as “watchdogs” to make guard against this. But the CASA Program wants 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 involve work “pro bono,” knowing the latter will limit the number of lawyers actually involved in “their” cases.

• • A CASA is, 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 CASA (as opposed to lawyer) representation, the CASA Program cites “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 the CASA 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?”

• • The National Association of Counsel for Children speaks directly to this issue in its Priority Agenda: “The NACC believes that, in order for justice to be done in child abuse and neglect related court proceedings, all parties should be represented by counsel.”

• • The NACC continues:

“[I]n many jurisdictions, the courts do not appoint independent attorneys for all children in abuse and neglect related proceedings.”

And, to respond to those who claim that “CASA” or lay “GAL” representation should be “the child’s voice in court” in lieu of an actual attorney, the Priority Agenda states bluntly:

“Children’s attorneys, however, remain uniquely qualified to provide a legal voice for children in those legal proceedings, through presentation of oral and written submissions to the court. GAL volunteers can, therefore, supplement, but not supplant, the efforts of children’s attorneys.”

• • National Association of Counsel for Children Board President, Angela Adams, in her first editorial, makes the point even more clearly:

“First, we need to remind ourselves that the primary purpose of the NACC is to assure that children receive quality legal representation. This organization stands for the proposition that children will not be adequately served in our legal system unless they are represented by skilled and trained legal counsel. Competent, independent legal representation is essential to obtaining good outcomes for children. In spite of the progress made in establishing and defining the role of the child’s attorney, state systems do not always provide children’s attorneys with the direction and resources necessary to achieve good representation. National policy voices (from the NACC to the ABA to the National Council of Juvenile and Family Court Judges and the Children’s Bureau) have reached consensus that dependency court improvement requires independent legal counsel for children. Nevertheless, many states continue to allow cheaper lay representation as the exclusive “counsel” for children. Other states are considering a step backward, by substituting lay representation for trained attorneys. The NACC and its members must send a loud and clear message to our courts and lawmakers that children must be provided independent legal representation, and that lay representation is not an acceptable substitute for trained professional attorney representation.” (Source: The Guardian, Vol. 21, Number 1, Winter, 1999, p. 1.)

• • Take a look at the American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases. Here are a few excerpts. Clearly, obviously, and indisputably, CASA’s position, that it is “the child’s voice in court,” is hardly calculated to truly protect children in abuse and neglect proceedings:

C–3. File Pleadings. The child’s attorney should file petitions, motions, responses or objections as necessary to represent the child. Relief requested may include, but not limited to:

1. A mental or physical examination of a party or the child;
2. A parenting, custody or visitation evaluation;
3. An increase, decrease, or termination of contact or visitation;
4. Restraining or enjoining a change of placement;
5. Contempt for non-compliance with a court order;
6. Termination of the parentz–child relationship;
7. Child support;
8. A protective order concerning the child’s privileged communications or tangible or intangible property;
9. Request services for child or family; and
10. Dismissal of petitions or motions.

Commentary: Filing and arguing necessary motions is an essential part of the role of a child’s attorney. See, Resource Guidelines, at 23. Unless the lawyer is serving in a role which explicitly precludes the filing of pleadings, the lawyer should file any appropriate pleadings on behalf of the child, including responses to the pleadings of the other parties. The filing of such pleadings can ensure that appropriate issues are properly before the court and can expedite the court’s consideration of issues important to the child’s interests. In some jurisdictions, guardians ad litem are not permitted to file pleadings, in which case it should be clear to the lawyer that he or she is not the “child’s attorney” as defined in these Standards.

D–3. Motions and Objections. The child’s attorney should make appropriate motions, including motions in limine and evidentiary objections, to advance the child’s position at trial or during other hearings. If necessary, the child’s attorney should file briefs in support of evidentiary issues. Further, during all hearings, the child’s attorney should preserve legal issues for appeal, as appropriate.

D–4. Presentation of Evidence. The child’s attorney should present and cross examine witnesses, offer exhibits, and provide independent evidence as necessary. Commentary: The child’s position may overlap with the positions of one or both parents, third–party caretakers, or a child protection agency. Nevertheless, the child’s attorney should be prepared to participate fully in every hearing and not merely defer to the other parties. Any identity of position should be based on the merits of the position (consistent with Standard B–6), and not a mere endorsement of another party’s position.

G–3. Enhancing Lawyer Relationships with Other Court Connected Personnel. Courts that operate or utilize Court Appointed Special Advocate (CASA) and other nonlawyer guardians ad litem, and courts that administer nonjudicial foster care review bodies, should assure that these programs and the individuals performing those roles are trained to understand the role of the child’s attorney. There needs to be effective coordination of their efforts with the activities of the child’s attorney, and they need to involve the child’s attorney in their work. The court should require that reports from agencies be prepared and presented to the parties in a timely fashion.

Commentary: Many courts now regularly involve nonlawyer advocates for children in various capacities. Some courts also operate programs that, outside of the courtroom, review the status of children in foster care or other out–of–home placements. It is critical that these activities are appropriately linked to the work of the child’s attorney, and that the court through training, policies, and protocols helps assure that those performing the nonlegal tasks (1) understand the importance and elements of the role of the child’s attorney, and (2) work cooperatively with such lawyers. The court should keep abreast of all the different representatives involved with the child, the attorney, social worker for government or private agency, CASA volunteer, guardian ad litem, school intermediator, counselors, etc.

What else is there to say?

Who was “representing” this child?