VOL. 116 | NO. 36 | Thursday, February 21, 2002
New rules help states foster children
New rules help states foster children
By MARY DANDO
The Daily News
More than 7,700 Tennessee children who are in foster care because they were abused, neglected or dependent will benefit from a new state Supreme Court rule establishing guidelines for lawyers appointed to represent them as "guardians ad litem."
The new rule is the latest move taken by various branches of state government with the goal of trying to move children from temporary foster care into permanent adoptive homes.
A guardian ad litem is appointed by the court to represent the child by advocating for the childs best interests and ensuring the childs concerns and preferences are effectively advocated, the court wrote in Supreme Court Rule 40.
In 1996, the court appointed a Permanency Planning Commission to review and assess the juvenile court process in cases involving dependent, neglected and abused children. The commission concluded there were several barriers to permanency for these children within the judicial system.
The Supreme Court rule was adopted in response the commissions findings.
According to the Department of Childrens Services, more than 107 children a day are reported abused or neglected in Tennessee.
The department responds to more than 37,700 reports of child abuse and neglect each year, and as a result places some of these children in foster care.
Mary walker, general counsel for the department, said the new rule clarifies for the first time throughout the state the role of the attorney as a guardian ad litem.
"This will help children move to permanency more quickly. Everyone will understand, and our case managers will know what a guardian ad litem is supposed to do. It clarifies what the expectations are," she said.
Court advocacy for children is not limited to attorneys as guardians ad litem.
The Court Appointed Special Advocate program provides trained non-attorney volunteers to represent the interests of abused and neglected children in the juvenile court system.
The Shelby County CASA executive director Dan Michael said about 1,700 to 1,800 children are currently in foster care in Shelby County - making it the largest number in the state.
"Shelby County will have a third of the kids in foster care at any given time over the whole state," Michael said.
Last year, guardians ad litem represented about 10 percent of those children, and CASA about 35 percent, he said.
Michael was chairman of the judicial practices and procedures sub-committee of the permanency planning commission.
"We took on the job of looking at whether or not people who practice as guardians ad litem had what it took to do a good job," he said.
Attorney Michael said lawyers dont get trained to do guardian ad litem work.
"The purpose of the guidelines are to guide attorneys who practice as guardians ad litem so they represent the best interests of children," he said.
Rule 40 will affect all licensed attorneys in Tennessee who take an appointment as guardian ad litem. These guidelines, however, do not bind non-attorneys.
"CASAs are not bound by these guidelines, but they are good guidelines and best practices, so why not follow what we can as non-attorneys," he said.
Although Shelby County has more CASA volunteers than it has guardians ad litem, considering there are about 4,000 licensed attorneys, it has potentially more guardians ad litem, Michael said.
"Long run, I would love to see more attorneys involved in guardian cases. My hope is for more kids in permanent homes whether we do it with a guardian ad litem or whether we do it with a CASA volunteer," he said.
The new rule said establishing and maintaining a relationship with the child is fundamental to representation. That is highly significant, said Susan Brooks, a clinical professor of law at Vanderbilt University.
Brooks also was a member of the permanency planning commission. In looking at national guidelines, Rule 40 most closely resembles the model used in Michigan, she said.
"We chose to use as a primary framework the notion of a guardian ad litem meaning a lawyer who is designated to promote the childs best interest as a kind of overall framework," she said.
This concept differs from the American Bar Associations standards, which promote more of a traditional attorney/client role, she said.
Brooks said the final guidelines attempt to incorporate the spirit behind the ABAs standards, while still serving the idea the guardian ad litem is there to ultimately promote the best interests of the child.
"The spirit of the ABAs guidelines is to emphasize the importance of the lawyer having a strong sense of responsibility to the child as a client, similar to the responsibilities that lawyers have to adult clients," she said.
Brooks said CASA volunteers play a vital role in getting to know the childs family and as a witness in court, but they should not be forced into the role of lawyer.
"Children in these cases should have legal representation," she said.