| 6A.1 INTRODUCTION
In 2005, the Legislature changed the representation of children in abuse and neglect cases. Previously, each child, regardless of age, was appointed a guardian ad litem (GAL), who was an attorney by profession but who was charged with representing the child’s best interest. Under the law as amended, children under the age of 14 continue to have attorney GALs representing their best interests to the court, but older children are represented by attorneys under the traditional client-directed model of representation. The attorney advocates for the young person’s position after counseling the young person on his or her choices.
The Handbook uses the term “youth attorney” to describe the attorney appointed for a child 14 or older in abuse or neglect cases. Although this term is not found in the statute, it is the term commonly used by judges and practitioners throughout New Mexico. It distinguishes between the attorney GAL for the younger child and the attorney serving as attorney for the older child.
6A.2 ROLE
Section 32A-4-10 provides that the court shall appoint an attorney for children 14 and older and that the attorney must zealously represent the child. Section 32A-1-7.1(A) explains that this attorney “shall provide the same manner of legal representation and be bound by the same duties to the child as is due an adult client, in accordance with the rules of professional conduct.” Such representation extends through any subsequent appeals. §32A-1-7.1(B).
While the Rules of Professional Conduct serve as the primary guidance for attorneys appearing on behalf of older children in abuse and neglect cases, the Supreme Court has also adopted performance standards for these attorneys. Among other things, these standards require the youth attorney to consult with the child before hearings, to zealously represent the expressed interests and expressed cultural needs of the child, and to comply with the Children’s Code confidentiality requirements. The standards can be found at the end of this chapter.
6A.3 APPOINTMENT
When a petition alleging abuse or neglect of a child age 14 or older is filed, the court will appoint an attorney to represent the child. §32A-4-10(C); see also Rule 10-305(D). When a child with a GAL reaches age 14, the child’s GAL must file either a notice of continued representation as attorney for the child or a motion to request the appointment of an attorney for the child. Rule 10-305.2(A). Although the law contemplates that the GAL will continue as the child’s attorney, the court must appoint a different attorney if:
- the child requests different counsel,
- the GAL requests removal, or
- the court determines that appointment of a different attorney is appropriate. §32A-4-10(E).
At the child’s first appearance in court after turning 14, the court shall inquire as to whether the child is represented by an attorney and, if the child is not represented, the court shall appoint an attorney. Rule 10-305.2(B).
Only an attorney with appropriate experience may be appointed as a youth attorney. §32A-4-10(C). When reasonable and appropriate, the court must appoint an attorney who is also knowledgeable about the child’s particular cultural background. §32A-4-10(D). An officer or employee of an agency that has legal custody of the child may not serve as the child’s attorney. §32A-4-10(C).
Historical Note. When the concept of a youth attorney was being developed, there was concern that younger children not lose the continuity of their relationship with their GAL. Hence, the law was drafted to allow the same attorney to continue representing the child after age 14, albeit as counsel rather than GAL. It was thought, or hoped, that the interests and desires of the younger and older siblings would not conflict in many cases and that the attorney would be able to continue serving as GAL for the younger children and attorney for the older children. This may well be unrealistic. In some judicial districts, the number of lawyers involved in a case has grown greatly since the advent of the youth attorney. |
6A.4 SPECIFIC POWERS AND DUTIES
6A.4.1 REPRESENTATION ON APPEAL
The youth attorney in an abuse or neglect case is obligated to represent the child during any appellate proceedings unless excused by the court. §§32A-1-7(B); 32A-1-7.1(B). This includes initiating an appeal on the child’s behalf or filing an answer brief. The youth attorney should continue to advocate the child’s position consistent with the attorney’s duties under the Rules of Professional Conduct.
6A.4.2 FILING TPR MOTION
The attorney representing an older child in the abuse or neglect proceeding may request in writing that CYFD move for the termination of parental rights and notify the department that, if it does not move for termination, the child will do so and seek an award of attorney fees. The court may order CYFD to pay attorney fees if the child, through the attorney, moves successfully for TPR and the department refuses to litigate the motion or fails to act in a timely manner. §32A-4-30.
6A.4.3 RETAINING SEPARATE COUNSEL
The youth attorney may retain separate counsel to represent the child in a tort action or any other action outside the jurisdiction of the Children’s Court. The youth attorney must provide written notice to the court within ten days of retaining separate counsel and is prohibited from having any pecuniary interest in the separate action. §32A-1-7.1(C).
6A.4.4 MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES RESIDENTIAL PLACEMENT PROGRAM
Under the Children’s Mental Health and Developmental Disabilities (MHDD) Act, as amended in 2007, a child fourteen years of age or older may voluntarily admit him or herself to a residential treatment or habilitation program, with the informed consent of the child’s legal custodian. §32A-6A-21(B). The law also entitles the child to an attorney. §32A-6A-21(D). In the case of a child subject to the Abuse and Neglect Act, the child’s attorney in the abuse or neglect proceeding continues to serve in the MHDD Act proceeding. However, the child may, after consultation with this attorney, elect to be represented by counsel appointed under the MHDD Act instead. §32A-4-23(E).
Because children 14 years of age or older have the independent right to consent to residential placement, the child’s attorney must meet with the child and determine, within seven days after admission, whether or not the child consents to the placement. At the meeting, the attorney must first explain to the child:
- the child’s right to an attorney;
- the child’s right to terminate his voluntary admission and the procedures to effect termination;
- the effect of terminating the child’s voluntary admission and the options of the physician and other interested parties to the petition for involuntary admission; and
- the child’s rights under the MHDD Act, including the right to:
- legal representation;
- a presumption of competence;
- receive daily visitors of the child’s choice;
- receive and send uncensored mail;
- have access to telephones;
- follow or abstain from the practice of religion;
- a humane and safe environment;
- physical exercise and outdoor exercise;
- a nourishing, well-balanced, varied and appetizing diet;
- medical treatment;
- educational services;
- freedom from unnecessary or excessive medication;
- individualized treatment and habilitation; and
- participation in the development of the individualized treatment plan and access to that plan on request.
§§32A-6A-21(I) and §32A-6A-12.
If the attorney determines that the child understands his or her rights and voluntarily and knowingly desires to remain as a patient in the residential program, the attorney will so certify on a form designated by the Supreme Court within seven days of the child’s admission. §32A-6A-21(J); Form 10-494. A child voluntarily admitted has the right to immediate discharge upon his or her request, except in those situations in which involuntary placement proceedings are commenced. §32A-6A-21(L). If involuntary proceedings are commenced, the child shall at all times be represented by counsel. §32A-6A-22(H).
6A.5 OTHER RESPONSIBILITIES
The youth attorney will want to consult with the social worker and health care, mental health care, and other professionals involved with the youth’s service plan and request services to meet the youth’s needs, to protect the youth’s interests, and to ensure a comprehensive service plan. It may also be reasonable and appropriate, for example, to:
- Engage in advocacy in other forums, such as attending treatment team meetings if the child is in a residential mental health placement or in treatment foster care; participating in Individualized Education Plan meetings for special education services at school; or working through administrative channels to secure other health or social services. The youth attorney should be familiar with federal statutes that may affect the child’s rights, such as the Indian Child Welfare Act, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.
- Participate in discharge planning for the child, such as from one level of care to another, or from foster care to a permanent placement The youth attorney’s knowledge of therapeutic intervention models, pharmacological interventions, child development, and state and federal adoption subsidies can be an important resource for the child in those discussions.
It will be especially important to advocate for the child as he or she prepares for adulthood. Section 32A-4-22(B)(11), for example, requires that the predisposition study for children 16 years of age and older contain a plan for developing specific skills the child requires for successful transition into independent living as an adult, regardless of whether the child is returned to the parent’s home. The youth attorney will want to ensure that the court is considering these issues when conducting judicial reviews and permanency hearings and that the court is hearing the views of the child.
6A.6 YOUTH ATTORNEY IN COURT
The child who is the subject of an abuse or neglect petition is a party to the case. Rule 10-108(B)(3). The youth attorney should actively participate in all court proceedings. This participation includes:
- Making pretrial motions.
- Making opening and closing statements.
- Calling and adequately examining witnesses.
- Preparing and offering evidence and exhibits.
- Making proper objections or responding to objections raised by opposing counsel.
- Preserving issues for appeal.
- Filing briefs.
- Providing proposed findings of fact and conclusions of law.
State ex rel. CYFD in the Matter of Esperanza M., although addressing the requirements for a guardian ad litem before the institution of the appointment of an attorney for the child in 2005, informs us that “…passive representation” that does not include these activities is materially deficient and fails to meet the standards prescribed by §32A-1-7. 1998-NMCA-039, ¶40, 124 N.M. 735.
Under Children’s Court Rule 10-310, the GAL has an obligation to disclose certain information at least 15 days before any adjudicatory hearing or termination of parental rights hearing. See Rule 10-310, summarized at Handbook §26.3.4. At the time the 2007 Handbook went to press, a comparable rule had not yet been adopted for youth attorneys; in the meantime, Rule 10-310 serves as guidance to the youth attorney.
6A.7 RELATIONSHIP TO OTHERS IN THE CASE
The relationships between the participants in abuse or neglect cases – clients, children’s court attorneys, social workers, CASAs, respondents’ counsel, GALs, and now youth attorneys -- are evolving. Some of these relationships are defined by requirements of the Children’s Code, court rules, and case law, and change accordingly. Because older children have only recently had attorneys representing them under the client-directed model of representation, the legal community is still exploring the extent to which this model of representing children is or is not changing relationships. This section provides a preliminary exploration of the relationships between participants in an abuse or neglect case.
6A.7.1 RELATIONSHIP TO THE CHILD
The youth attorney’s relationship to the child client is that of any lawyer to his or her client. §32A-1-7.1(A). As such, the youth attorney is required to perform a number of roles, including advisor, counselor, and advocate. Rule 16-201; Preamble to the Rules of Professional Conduct. Depending on the child’s age, maturity, and sophistication, the youth attorney’s role as advisor and counselor may be especially significant. The youth attorney must candidly advise the child about his or her rights, the strengths and weaknesses of the child’s expressed positions, and the possible outcomes of the case, and must do so in a manner that is meaningful to the child. In counseling the child, the youth attorney may—and probably should—discuss more than just the legal aspects of the case, such as the child’s future family relationships and social and economic factors that may be relevant to the child’s situation. Rule 16-201. Once the child has been fully advised and counseled, the youth attorney must abide by the child’s “decisions concerning the objectives of representation” and be a zealous advocate for the child. Rule 16-102.
6A.7.2 RELATIONSHIP TO OTHER PARTIES
Whether the youth attorney may communicate directly with CYFD workers without the children’s court attorney being present or consenting is unclear. Whereas the GAL plays a unique role not typical of traditional attorneys in abuse and neglect cases, the youth attorney is explicitly required to “provide the same manner of legal representation and be bound by the same duties to the child as is due an adult client, in accordance with the rules of professional conduct.” §32A-1-7.1(A) (emphasis added). Presumably this includes Rule 16-402, which provides that a lawyer may not “communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” In State ex rel. CYFD in the Matter of George F., 1998-NMCA-119, ¶5, 125 N.M. 597, the court declined to decide whether an attorney-client relationship exists between the children’s court attorney and the social workers. However, CYFD regulations provide that the primary decision-make on the case is the CYFD worker for the purpose of the attorney-client relationship. 8.10.7.12(A) NMAC.
The youth attorney should not make direct contact with the respondents when they are represented by counsel, outside of the presence of such counsel, unless the respondents and their counsel agree to the contact.
6A.7.3 RELATIONSHIP TO THE COURT
While the court must assure that the GAL zealously represents the child’s best interest, it must assure that the youth attorney represents the child. §32A-4-10(F). The court does not have the same relationship with the attorney that it does with the GAL who is, at least in part, acting to assist the court in carrying out its duty to determine best interest. See Handbook §6.6.3.
6A.8 PERFORMANCE STANDARDS
The performance standards adopted by the New Mexico Supreme Court for attorneys who represent older youth in abuse or neglect proceedings in Children’s Court are reprinted here: PDF.
6A.9 RECOMMENDED READING
- Peters, Jean Koh, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions, Third, International Edition. Matthew Bender & Company, Inc., a member of the LexisNexis Group, 2007.
- Renne, Jennifer L., Legal Ethics in Child Welfare Cases. American Bar Association, 2004.
|
