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Jesse Diner: ‘Seven Years & Counting’ for Foster Children & Attorney Representation

Florida is one of ten states that do not provide attorneys to children in foster care and the dependency system. They are the only party  in a dependency case who are not represented and thousands do not have Guardians ad Litem.


Florida Bar Pres. Jesse Diner

This year, Florida Bar President Jesse Diner is making the passage of legislation that would provide attorneys for foster children one of his top priorities. The commentary below appeared in The Florida Bar Journal…

Children are entitled to the same zealous advocacy adult clients expect of their lawyers. Yet, too often, children come to court powerless, with no one representing them at all. . . .

“If children are lucky enough to have lawyers, too often those lawyers are underpaid, inexperienced, and overwhelmed by huge caseloads. Judges are left to make life-altering decisions about a child without sufficient information to back up sound decisions.”

Those excerpts are plucked from the 2002 final report of The Florida Bar Commission on the Legal Needs of Children, a hardworking group of Florida judges and lawyers and experts on children’s issues chaired by 11th Circuit Judge Sandy Karlan.

After three years of vigorous debate, the commission’s number one priority was how best to represent children in court — whether in dependency, delinquency, civil, probate and guardianship, domestic violence, or high-conflict custody proceedings.

Seven years have passed.

It’s time to take the commission’s report off the shelf, dust it off, and take action on behalf of Florida’s children embroiled in dependency and delinquency courts.

We’re still waiting for action on the commission’s unanimous recommendation calling for a comprehensive model of representation for children by creating a Statewide Office of the Children’s Advocate to oversee both legal attorney-client and guardian ad litem representation to children. (The public defender would still represent children charged with crimes.)

The commission envisioned the new office would play a critical role in providing a voice for children so they can meaningfully present their positions and needs and wishes to the court. Of paramount importance was the independence of the office from other participants in litigation, so its actions on behalf of children would not be compromised.

The commission also delved into the problem, later documented by the National Juvenile Defender Center that sent observers to Florida’s courtrooms, of children charged with crimes routinely waiving their constitutional right to counsel and even pleading guilty to crimes they did not commit.

Encouraging is the high energy, expertise, and dedication of Howard Talenfeld, a children’s rights attorney I appointed to chair the Legal Needs of Children Committee, the standing committee that succeeded the commission.

Howard will be ably helped by three vice chairs who hold leadership positions at the Department of Children and Families, the agency charged with the supervision of 19,747 foster children: John Copelan, general counsel; Alan Abramowitz, state director of the Office of Family Safety; and Mary Cagle, statewide director of Children’s Legal Services.

Serving as a member of the committee is Theresa Flury, the new executive director of the statewide Guardian ad Litem Office.

Theresa has pledged to work together with the committee’s leadership in helping create consensus on what the original commission envisioned: a Statewide Office of the Children’s Advocate.

Within that office would be the Division of Legal Counsel, representing children in proceedings where legal counsel has been appointed by the court (unless the court chooses to appoint private counsel); and the Division of the Guardian ad Litem, expanded to ensure that every child in dependency proceedings has a staff or volunteer GAL assigned.

(Even though Ch. 39 mandates all children shall be represented in dependency proceedings, currently only 84 percent have GALs.)

Whatever details and compromises are eventually hammered out in proposed legislation, the bottom-line goal is creating effective and zealous representation for children in court.

As Howard tells me, Florida’s child welfare system has become so fragmented that foster children need representation to determine eligibility for an array of services, including individualistic education plans and ensuring their rights to various Medicaid benefits that are being reduced.

Protecting foster children’s rights often involves dealing with the Agency for Persons with Disabilities and the Division of Administrative Hearings, as well as circuit court dependency hearings.

Given the complexity of issues involved, we need to ensure that every child has quality representation from highly skilled guardians ad litem and well-trained attorneys.

Another goal of the committee is working with the Public Interest Law Section on certification for representing children.

The urgency for implementing the recommendations of the original commission is far greater than ever because of this fragmentation of the child welfare system.

Let’s get beyond debates and reports and finally take action on the 2002 commission’s thoughtful recommendations.

I support the Legal Needs of Children Committee in making needed changes happen — not sometime in the amorphous future, but the sooner the better.

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