Benefits to the Profession

The Lawyer, and the Community

From Pro Bono Representation of Minors by

Court Appointment

By Thomas E. Stanton

I. Overview

There may be no more challenging representation for an attorney than representation of children who have been removed from their homes because of the threat or reality of abuse and neglect.  The psychological and medical issues are subtle and complex.  The clients may be infirm, disabled, immature, aggressive, passive, or non-communicative.  The institutional culture involved in the provision of services can be intractable.  And the breadth of the constitutional and statutory legal issues is enormous.

There are many benefits for my law practice as a result of this representation.  In the last fifteen years of representing children I have cross examined medical and mental health professionals of every conceivable variety; honed skills in impeaching investigating officers; and on more than one occasion, lead a caseworker to change her recommendation on the witness stand.  There has been no better training ground for me as a practitioner than the child welfare docket.

II.  Benefit to the Community

A.  When a Court appoints counsel, the appointment is of Constitutional dimension.

Due Process considerations require representation of juveniles where there is a possibility of commitment to an institution.  See In re Gault, 387 U.S. 1 (1967).  In Gault (page 41), the Supreme Court held as a matter of due process of law that juveniles are entitled to the right to counsel in delinquency cases in which there is a possibility of commitment to an institution.  In the years following the Supreme Court's declaration of the right to counsel for juveniles in In re Gault, state courts and state legislatures extended this principle beyond the juvenile justice forum to child welfare courts, and expanded the right beyond the adjudicatory hearing1 to non- adjudicatory stages of the process.  The close similarity between commitment of an adolescent to a Texas residential treatment center and a juvenile justice commitment is apparent.2  

It is well settled that the right to counsel founded in the Constitution connotes the right to competent counsel.  In U.S. v. Cole, 988 F. 2d 681 (7th Cir. 1993), the Court found that the Sixth Amendment guarantees the right to counsel whose performance meets minimum standards of professional conduct.  And in U.S. v. Barber, 808 F. Supp. 361 (D.N.J. 1992), the Court stated that Defendant had a Sixth Amendment right, not just to counsel but to reasonably effective counsel.  

B.  Amendments to the Texas Family Code in 2003 continue the pattern commenced in 1995 for the Legislature to set high performance standards and specific duties and responsibilities applicable to the ad litem.

No other section of the law sets out in greater detail the duties and responsibilities to guide the attorney ad litem as the Family Code at Sections 107.001 through 107.015.  Taken together, these sections are a road map which, if followed by the attorney, provide the delivery of legal services at an incredibly high level.    

In 1995 the Texas Legislature, at Section 107.006 of the Texas Family Code gave the authority to the local administrative judge in Texas counties to establish a pool of attorneys to serve as attorneys and guardians ad litem.  The Code then set out specific qualifications.

In 2003, the Texas Legislature wholly reworked that system deleting the administrative judge responsibilities and setting up state wide standards.   It would be interesting to do a survey of Texas Courts in urban and suburban jurisdictions to see if the standards are being applied.

They are being appliedlargelyin El Paso County.

III. Benefits to the Attorney.

Children who have been victims of abuse and neglect often present physical and emotional injuries that require sophisticated medical, psychiatric, and psychological tools to evaluate.  The dynamics of the home environment require separate analytical tools in the social sciences.  Separately, recovery issues can involve occupational, vocational, pharmacological, educational, and psychological therapies.  Few caregivers or evaluators are expert in more than one or two of these areas.  No single expert's opinion should be accepted uncritically by the fact- finder or the ad litem.

The alert Attorney Ad Litem is likely to develop these additional critical skills and knowledge areas:

1.  A working and effective knowledge of the DSMIV diagnostic tool.  

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), published by the American Psychiatric Association, has become the world's standard for evaluation and diagnosis of mental disorders.  The DSM-IV gives the appearance (and sometimes substance) of methodological rigor which has traditionally been a safe harbor for the testifying psychologist.   Your client=s occasional behaviors become lists of symptoms, and when a certain number of symptoms are catalogued, a diagnosis from the pages of the DSM-IV follows.   Once a diagnosis attaches, the lawyer=s client is labeled an Aabnormal@ person or mentally ill patient.   The jury, judge, and caseworker ever after are tempted look past the complexity, depth, and uniqueness of the parent or child and focus on the diagnosis of a mental disorder following as little as a one hour interview of your client.

For this and other reasons, the DSM-IV is an important tool for which the advocate should develop expertise in its uses and limitations.  

2.  A facile, flexible, working knowledge of the principles governing the introduction of expert testimony.

The Eighth Court of Appeals solidly adheres to the principle in Texas that a trial court=s evidentiary rulings are reviewed under an abuse of discretion standard.3  Trial courts in Texas must follow the law as set forth in E.I. du Point de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995).  In Robinson, the Texas Supreme Court adopted the reasoning of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 591-95, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 482-84 (1993) and  Kumho Tire Co. v. Carmichael, 526 U.S. 137; 119 S.Ct. 1167 (1999) relating to the admissibility of expert testimony.  Texas Rule of Evidence 702 requires, upon objection, that the proponent of expert testimony must show: that the expert is qualified; that the expert's testimony is relevant to the issues in controversy; and, that the testimony is based upon a reasonable foundation.  The trial court, in its function as a "gatekeeper," must then make a preliminary determination as to whether the proffered testimony meets the criteria of Rule 702.

As a result, the opponent puts the matter at issue by making an objection.  While the burden is on the party offering the expert, the opponent, at the first available opportunity, should make every effort to take the expert on voir dire in order to take the offensive, through leading questions, in undercutting the methodological or factual basis for the expert's testimony.  

Ad litem representation involves testing expert opinions by cross examination at nearly every hearing.  

3.  Practical trial experience.

Ad litem representation has allowed me to go into almost every other forum and know that I have as much or more trial experience as any other lawyer I face.   My clients in other areas of my practice have benefittedwithout knowingfrom the confidence and experience I have developed talking to jurors and handling attorneys and judges on the child welfare docket.

4.  Advocacy experience related to the most awful, tragic, and difficult facts you will ever face.    Neither personal injury nor commercial litigation lawyers deal with the most difficult and appalling facts of sexual and physical abuse, mental illness, drug abuse, and other bizarre behavior that arises on the child welfare docket.  After a time, one can become experienced at looking a jury in the eye and  engaging them on these most difficult issues.   I have one anecdote to illustrate my point.  Not many years ago, I brought a sexual abuse case against a school district in Federal Court.  As the trial went on I realized that neither the Defense attorney nor his expert could very easily say the words, sexual abuse', or talk about it without flinching.  When I realized it I pointed it out to the jury and I got nods of agreement from them; they had picked up on it too.  It is just not a topic that comes up often in polite conversation.   It did not come up in my conversation until I began taking cases on the child welfare docket.   This anecdote leads me to my last topic:

V.  Representation of Children can lead to successful ancillary representation for the flexible attorney.

a. Representation of children with disabilities can lead to representations of minors and their families under the Education of Children with Disabilities Act.  Attorneys fees are available at rates from $150 to $250 an hour.

b. Representation of abused children in this jurisdiction has lead to lawsuits against public and private school districts with attorneys fees recoverable and awarded at a high rate to successful lawyers.

c. Ad litem representation can be a prerequisite for appointment by family courts to fee based ad litem representation.

d. Mental health professionals, child welfare investigators, social workers, and caseworkers often refer other legal work to the attorneys who advocate zealously for their clients.

e. There is a need in El Paso County for one or more attorneys to develop a speciality in immigration law; and appellate law for children and parents in child welfare cases.

V. Conclusion

  In my own practice, I have learned that there is no more rewarding place to practice professionalism than in the interests of a minor child under a court appointment.