Remember the Children – Ethical Duties When Representing Children

Meet E.M., a 4-year-old boy who has been taken into emer­gency custody by the Oklahoma Department of Human Services (DHS). E.M. was removed in the month of August. The home E.M. was removed from had no running water, no electric and no gas. It was apparent the utilities had been off for quite some time, yet the family had continued to use the toilet and tub when they needed to use the restroom. The stench in the home was overpowering. However, this is not the reason DHS was called to the home. They were called there because someone had reported that E.M. had been seen repeatedly with black eyes and other bodily injuries. You receive notification from the judge that the state of Oklahoma has filed a deprived petition and you have been appointed to represent E.M. What is ethically required of as an attorney for a child? What is the role? What voice can a four-year-old really have?

As the attorney for the child, the first step is to make arrangements to see the child as soon as   possible.¹      Additionally,    Oklahoma   law requires that “[e]xcept for good cause shown, the attorney shall meet with the child prior to any hearing in such proceeding.”² Simply meeting with the child once or twice over the entire course of the case will not satisfy the ethical duty to the child . The statute also makes clear that the Legislature intended that these meetings with the minor child should be a per­sonal visit and only if there are exigent circum­stances should a telephone call to the child be substituted for a face-to-face meeting .³  This requirement can often be difficult depending on where the child has been placed. However, the attorney has an ethical obligation to make every effort to meet face-to-face with the child prior to any hearing. If the appointment is to a very young child who may not have the ability to communicate or a child with a disability that would prohibit the attorney from forming a “meaningful attorney-client relationship,” the statute allows the attorney to speak with the custodian or caretaker for the child.⁴  In the case of E.M., an initial meeting with the child while the caretaker is present should be able to sup­ply an attorney with the information that is needed to determine if a meaningful attorney­ client relationship is possible.

As the attorney appointed for the child you must understand that role. An attorney for the child is not a guardian ad litem. An attorney for the child is appointed to represent the child and “any expressed interests of the  child.”⁵  The law only allows the attorney to substitute their own judgment for that of the child if the child cannot express an  interest.⁶   This would  be the case if the child was very young and preverbal or when there is some other defined reason the child  cannot make judgments on their own.⁷ If an appointment is made to a child that cannot express an interest, the attorney must look to objective criteria to determine what is in the child’s best interest.⁸   The law  specifically states that the attorney cannot rely solely on “life  experi­ence or instinct.”⁹ lOA O.S. §1-4- 306 provides objective criteria to consider, but are not limited to, the following:

1. a determination of the circum­stances of the child through a full and efficient investigation,
2. assessment of the child at the moment of the determination,
3. examination of all options in light of the permanency plans available to the child, and
4. utilization of medical, mental health and educational professionals, social workers and other relat­ed experts.¹⁰

As part of the inquiry, the attorney has the authority to interview witnesses, participate  as all other parties do in the case and make rec­ommendations to the court  that  are  adequate for representing the interests of the child .¹¹ If  it is necessary for there to be someone appointed to solely represent the best interest of the child, then a request can be made that a guardian ad litem be  appointed for the child.¹²

Finally, for any attorney who is court­ appointed to handle any juvenile court respon­sibilities, there is a statutory requirement that you complete a minimum of six hours of edu­cation and training related to “juvenile law, child abuse and neglect, foster care and out-of­ home placement, domestic violence, behavior­ al health treatment, and other similar topics.”¹³ Failure to comply with the yearly provision would again be an ethical breach of duty to the client. It should also be noted that any attorney for the child should make all pertinent inquiry to determine whether the Indian Child Welfare Act (ICWA) and Oklahoma Indian Child Wel­fare Act (OICWA) are applicable to a case. By doing so, you can help ensure the child receives any and all benefits that are available and you can ensure all procedural standards are adhered to throughout the course of the case.

Remember that E.M. and all of the children in these cases are the most important people in them. In order to adequately represent children and meet all of the ethical obligations, an attorney interested in handling these types of matters needs to be aware of  what the law requires. The rep­resentation of children can be the most rewarding cases, but it demands additional time and effort to ethically represent them fully.

1. IDA O.S. §1-4-306(A)(2)(b) (2015).
2. Id. (emphasis added).
3. Id.
4. Id.
5. l0A §1-4- 306(A )(2)(c) (2015).
6. Id.
7. Id.
8. Id.
9. Id.
10. (A)(2)(C)(l -4) (2015).
11. 10A O.S. §1-4- 306(A)(2)(c) (2015).
12. lOA §1-4-306(B)(l) (2015).
13. l 0A §1-8-lOl (A)(l ) (2013).

About Athor

Okmulgee lawyer Courtney L. Eagan practices with the firm of McKenna and Prescott . Her practice primarily consists of rep­ resenting children in juvenile deprived cases and as a guardian ad litem in both state and tribal courts. In addition to her main area of practice she also handles adoptions, guardian­ ships and divorce matters. She is a citizen of the Chero­kee Nation of Oklahoma and is a 2009 graduate of the TU College of Law.