Child's Right to Counsel in Dependency Proceedings

Child’s Right to Counsel
in Dependency
Proceedings
Georgia Child Welfare Legal Academy
April 16, 2013
Presented by:
Willie J. Lovett, Jr., J.D., LL.M., CWLS-Director, Fulton County Office of the Child Attorney
Trenny Stovall, J.D.-Director, DeKalb County Child Advocacy Center
Aimee E. Stowe, J.D., Appellate Attorney, DeKalb County Child Advocacy Center

Children Need a Lawyer
Abused, neglected and abandoned children are removed from their
families each day and plunged into an under resourced and
overburdened dependency system which strives to serve their best
interests. To be empowered, children need more than just the
protection of well-meaning adults; they need a voice in the critical
decisions that will decide their future. They need a lawyer to
advocate among the courtroom of lawyers representing the many
other parties trying to be heard by a judge. The judge needs the
child's perspective alongside those of the other parties to determine
what the best interests of a child are. When the state has exercised
its ultimate power to strip children from their families, children need
a champion. Children need a lawyer.
ABA Section of Litigation-Children’s Rights Litigation Committee

Lawyers Improve Outcomes
for Children
Children who have lawyers in dependency matters:
 Reach permanency sooner
 Transition to adulthood more successfully
 Receive more comprehensive intervention services
 Are more likely to participate in, understand and accept the
outcomes of court proceedings

Representing the Child
The term 'child's attorney' means a lawyer who provides legal services for a child and
who owes the same duties of undivided loyalty, confidentiality, and competent
representation to the child as is due an adult client.
The child's attorney should elicit the child's preferences in a developmentally
appropriate manner, advise the child, and provide guidance. The child's attorney
should represent the child's expressed preferences and follow the child's
direction throughout the course of litigation. To the extent that a child cannot
express a preference, the child's attorney shall make a good faith effort to determine
the child's wishes and advocate accordingly or request appointment of a guardian ad
litem. To the extent that a child does not or will not express a preference about
particular issues, the child's attorney should determine and advocate the child's legal
interests. If the child's attorney determines that the child‘s expressed
preference would be seriously injurious to the child (as opposed to
merely being contrary to the lawyer's opinion of what would be in the
child's interests), the lawyer may request appointment of a separate
guardian ad litem and continue to represent the child’s expressed
preference, unless the child's position is prohibited by law or without any factual
foundation.“
ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996)

Georgia’s Models of Representation
Best Interest
Client-Directed
Dual-Role

Best Interest ~ Pros & Cons
Best Interest – Attorney represents the “best interest” of
the child vs. the child’s expressed wishes.
Pros
 Non-verbal child or child who are unable/unwilling to express
goals/direct litigation
 Avoids pressures of requiring children to make difficult decisions that
they might not be developmentally or emotionally equipped to make
 Allows attorney to provide court with comprehensive information for
“Best Interest” determination
Cons
 Child’s wishes may not be conveyed to the court
 Child’s valuable opinion as to her own best interest may not be
considered
 Allows broad discretion by attorney in evaluating “best interest”
without adequate training

Client-Directed ~ Pros & Cons
Client-Directed – Attorney represents the child’s
expressed wishes. Child-client directs litigation. GAL may be
appointed.
Pros
 Empowers and engages child in the dependency proceedings
 Ensures that child’s wishes and goals are conveyed to the court
 Rules of Ethics apply (confidentiality, loyalty)
Cons
 Non-verbal and young children who may not be able to “direct” litigation and older
children may make decisions that are not in their best interests.
 Some children may not have the capacity or willingness to form ‘considered’ wishes
 Complexities of “substituted judgment”

Client-Directed Representation
 ABA STANDARDS OF PRACTICE FOR LAWYERS WHO
REPRESENT CHILDREN IN ABUSE & NEGLECT CASES,
(NACC Revised Version, 1999)
 Focus on child-client’s expressed wishes
 Exercise “substituted judgment”

Dual-Role ~ Pros & Cons
Dual-Role – Attorney represents both the child’s position
and best interest. If conflict arises, a separate guardian ad
litem must be appointed.
Pros
 Empowers and engages child in the dependency proceedings
 Ensures that child’s wishes, goals, and best interest recommendations are conveyed
 Ongoing conflict analysis ensures that child’s wishes and best interest are protected
 Rules of Ethics apply
Cons
 Some children may not have the capacity or willingness to form ‘considered’ wishes
 Complexities of “substituted judgment” / Best Interest analysis
 Courts may not acknowledge distinct roles, duties or conflicts
 Conflict analysis

New Juvenile Code
 O.C.G.A. § 15-11-104
 (b) An attorney for an alleged dependent child may serve as such
child's guardian ad litem unless or until there is conflict of interest
between the attorney's duty to such child as such child's attorney
and the attorney's considered opinion of such child's best interests
as guardian ad litem.

Other Models
Two Distinct Lawyers Model
Bright Light Test Model

Which Model is “Best”?
Those advocating the traditional attorney approach
necessarily exclude children too young to speak, and most
require that the children be old enough to engage in a
rational decision-making process about the particular issue in
question. Those advocating the guardian ad litem role for
most children, generally still concede that at some age—at
least in the late teenage years—children should be able to
direct their counsel, on some, if not all, issues.
Donald N. Duquette, Two Distinct Roles/Bright Line Test, 6 Nev. L.J. 1240 (2006)

In Practice
 Counseling client is key
 Child’s voice and wishes should be ever present
 Child’s circumstances/position not attorney’s values should
guide
 Child’s Best Interest is relevant

Model vs. Quality
Some authors consider the actual percentage of cases in
which a child’s best interests and expressed wishes conflict
to be relatively small and many warn against a preoccupation
with the subtleties of the child’s voice in directing the
attorney at the expense of exploring other dimensions of
quality attorney practice.
Gerard Glynn, The Child Abuse Prevention and Treatment Act—Promoting the
Unauthorized Practice of Law, 9 J.L. & Fam. Stud. 53, 54

Quality ~ Duties of a Child Attorney
 Independently investigate
 Maintain regular in-person client contact
 Actively participate in litigation (including appeals)
 File and respond to motions and pleadings
 Ensure clients presence in court
 Advocate for client with external stakeholder
 Monitor compliance of parties with court’s orders and plans
 Assess clients needs and advocate for intervention
resources
 Set aside personal values, opinions, biases and standards
 Communicate with child in developmentally appropriate way

Kenny A ~ Attorney Duties
Child Advocate Attorneys, in each instance of representing a Class Member, shall
have the following responsibilities:
 1) To prepare for, attend and participate in all court-ordered, judicial hearings and
proceedings; to stay as reasonably informed as possible of the existence and outcome
of non-judicial reviews, meetings and conferences; and to attend non-judicial reviews,
meetings, and conferences when necessary.
 2) To prepare and file motions and responses to motions.
 3) To be aware of and resolve potential and actual professional conflicts of interest.
 4) To investigate matters relevant to judicial proceedings, including engaging in the
formal and informal discovery process.
 5) To establish and maintain an attorney-client relationship with each Class Member
client and to maintain such contacts with the client as are necessary to ensure
adequate and effective legal representation.
 6) To maintain contacts with social workers, service providers and family members.
 7) To monitor the implementation of Juvenile Court orders relating to the child, to raise
issues of non-compliance, and to advocate the child's best interests with the Court and
other judicial decision-makers.
 8) To participate in settlement negotiations as necessary.
 9) To prepare, file and participate in appeals affecting the legal interests of clients.
Barton Child Law and Policy Clinic – Summary of DeKalb County Kenny A Settlement

Rights of the Child and Duties
of the Child’s Lawyer

Rights of the Child and Duties of The Child’s
Lawyer
 The child is a party, with full rights to participate in the litigation.
O.C.G.A. § 15-11-7(a).
“A party is entitled to the opportunity to introduce evidence and
otherwise be heard in his or her own behalf and to cross-examine
adverse witnesses.”
 Outside the deprivation context, case law provides that even
litigants with diminished capacity have the right to be present for
trial. Kesterson v. Jarrett, 317 Ga. App. 439 (2012).
 So, that means as the child’s lawyer, you are bound all ethical
and professional rules.
 Some rules to highlight:
 1.14
 1.2

Rule 1.14
 RULE 1.14 CLIENT WITH DIMINISHED CAPACITY
“a. When a client's capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some
other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.”
 Comment 1
“[1] The normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about important matters.
When the client is a minor or suffers from a diminished mental capacity, however,
maintaining the ordinary client-lawyer relationship may not be possible in all respects. In
particular, a severly [sic] incapacitated person may have no power to make legally binding
decisions. Nevertheless, a client with diminished mental capacity often has the ability to
understand, deliberate upon, and reach conclusions about matters affecting the client's
own well-being. For example, children as young as five or six years of age, and certainly
those of ten or twelve, are regarded as having opinions that are entitled to weight in legal
proceedings concerning their custody. So also, it is recognized that some persons of
advanced age can be quite capable of handling routine financial matters while needing
special legal protection concerning major transactions.”

Rule 1.2
Regardless of the model of representation, the attorney-client relationship
causes all ethical and professional rules to apply; hence, Rule 1.2 applies
as well.
 RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER
“a. Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
decisions concerning the scope and objectives of representation and, as
required by Rule 1.4, shall consult with the client as to the means by
which they are to be pursued. A lawyer may take such action on behalf of
the client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client's decision whether to settle a matter…”
 Comment 4
“[4] In a case in which the client appears to be suffering from diminished
capacity, the lawyer's duty to abide by the client's decisions is to be guided
by reference to Rule 1.14.”

Formal Advisory Opinion 10-2
 Issued by the Formal Advisory Opinion Board of the State Bar
of Georgia, October 14, 2010; unanimously approved by the
Supreme Court of Georgia, January 9, 2012.
“When it becomes clear that there is an
irreconcilable conflict between the child's
wishes and the attorney's considered opinion
of the child's best interests, the attorney must
withdraw from his or her role as the child's
guardian ad litem.”

Formal Advisory Opinion 10-2 and
the New Juvenile Code
 FAO 10-2 remains very relevant; attorney for child also may serve as
GAL for child in dependency and TPR cases
 In dependency proceedings (GAL must be appointed):
O.C.G.A. § 15-11-104
(b) An attorney for an alleged dependent child may serve as such child's
guardian ad litem unless or until there is conflict of interest between the
attorney's duty to such child as such child's attorney and the attorney's
considered opinion of such child's best interests as guardian ad litem.
 In TPRs (GAL may be appointed):
O.C.G.A. § 15-11-262
(d) The court may appoint a guardian ad litem for a child in a termination
proceeding … such guardian ad litem may be the same person as the child's
attorney unless or until there is a conflict of interest between the attorney's duty
to such child as such child's attorney and the attorney's considered opinion of
such child's best interests as guardian ad litem.

Unique Challenges in Representing Children in
Deprivation Cases
 Judge interviews client in chambers without child’s attorney or
opposing counsel’s presence
 Judge excluds client from the courtroom
 Denying motions to withdraw when conflicts arise or requiring
attorney to disclose nature of conflict
 Same lawyer is appointed to represent teen mother and her
child who are both in foster care (conflict of interest)
 Same lawyer is appointed to represent foster child of mother
(former client) who was previously in foster care.
 Same lawyer is appointed to represent sibling groups when
children’s interests are divergent – adversely and irreconcilably

Right to Counsel – Before WLH
and JCW

Child’s Status as a Party – Pre WLH & JCW
TWO PIECES:
 General law defining who is a party:
 A real party in interest is the person who, by the substantive governing law, has the
right sought to be enforced. Hadley v. Countrywide Home Loans, Inc., 315 Ga. App.
349, 352 (2012).
 In a deprivation action, the child’s rights are the “constitutional right to protection of
his or her person” and “fundamental liberty interests in health, safety, and family
integrity,” as well as physical liberty. Clark v. Wade, 273 Ga. App. 587, 597 (2001);
Kenny A. v. Perdue, 356 F. Supp. 2d. 1353, 1360-1361 (N.D. Ga. 2005).
 Juvenile law:
 “Under our juvenile code, all parties, including the child, should be represented by
an attorney.” McBurrough v. Dep't of Human Res., 150 Ga. App. 130, 131 (1979).
 O.C.G.A. § 15-11-6
“(b) Right to legal representation. Except as otherwise provided under this article, a
party is entitled to representation by legal counsel at all stages of any proceedings
alleging delinquency, unruliness, incorrigibility, or deprivation and if, as an indigent
person, a party is unable to employ counsel, he or she is entitled to have the court
provide counsel for him or her. If a party appears without counsel, the court shall
ascertain whether such party knows of his or her right to counsel and to be provided
with counsel by the court if he or she is an indigent person. The court may continue
the proceeding to enable a party to obtain counsel and shall provide counsel for an
unrepresented indigent person upon the request of such a person. Counsel must be
provided for a child not represented by the child's parent, guardian, or custodian. If
the interests of two or more parties conflict, separate counsel shall be provided for
each of them.”

Child’s Right to Counsel – Authority under
Current Law
GEORGIA
 In TPR, right to counsel is statutory. “In any proceeding for terminating parental
rights or any rehearing or appeal thereon, the court shall appoint an attorney to
represent the child as the child's counsel and may appoint a separate guardian
ad litem or a guardian ad litem who may be the same person as the child's
counsel.” O.C.G.A. § 15-11-98(a).
 In deprivation cases, same cites as above, for party status: O.C.G.A. § 15-11-6
and McBurrough v. Dep't of Human Res., 150 Ga. App. 130, 131 (1979).
 Persuasive authority: constitutional right to counsel
“Even if there were not a statutory right to counsel for children in deprivation
cases and TPR proceedings, the Court concludes that such a right is guaranteed
under the Due Process Clause of the Georgia Constitution, Art. I, § 1, ¶ 1.”
Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1359 (N.D. Ga. 2005).
FEDERAL
 CAPTA -- “[I]n every case involving a victim of child abuse or neglect which
results in a judicial proceeding, a guardian ad litem, who has received training
appropriate to the role, including training in early childhood, child, and adolescent
development, and who may be an attorney or a court appointed special advocate
who has received training appropriate to that role (or both), shall be appointed to
represent the child in such proceedings--(I) to obtain first-hand, a clear
understanding of the situation and needs of the child; and(II) to make
recommendations to the court concerning the best interests of the child…” 42
U.S.C. § 5106a(b)(2)(A)(xiii).

Juvenile Code and the CPA
 Juvenile Code has its own GAL code section: O.C.G.A. § 15-11-9:
(b) The court at any stage of a proceeding under this article, on application of a party or on its own motion, shall
appoint a guardian ad litem for a child who is a party to the proceeding if the child has no parent, guardian, or
custodian appearing on the child's behalf or if the interests of the parent, guardian, or custodian appearing on the
child's behalf conflict with the child's interests or in any other case in which the interests of the child require a
guardian. A party to the proceeding or the employee or representative of a party to the proceeding shall not be
appointed. In deprivation cases, a person appointed as a child's guardian ad litem must have received before the
appointment training appropriate to the role that is administered or approved by the Office of the Child Advocate
and may be an attorney or court appointed special advocate, or both. For attorneys, the preappointment training
required pursuant to this Code section shall be satisfied within attorneys' existing continuing legal education
obligations and shall not require attorneys to complete additional training hours in addition to those currently
required by the State Bar of Georgia. The Office of the Child Advocate shall exempt from the training required by
this Code section attorneys who have practiced as guardians ad litem in juvenile court deprivation proceedings for
three or more years and, when such determination is made by the court, have demonstrated a proficiency in child
representation.
 The CASA code section breaks down the duties of a CASA volunteer. O.C.G.A. § 15-11-9.1.
 The Civil Practice Act (“CPA”) also has a GAL section at § 9-11-17 (c):
“(c) Infants or incompetent persons. Whenever an infant or incompetent person has a representative, such as a
general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action
on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed
representative, he may bring an action by his next friend or by a guardian ad litem. The court shall appoint a
guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the infant or incompetent person. No next friend shall be
permitted to receive the proceeds of any personal action, in the name and on behalf of an infant, or incompetent
person, until such next friend shall have entered into a sufficient bond to the Governor, for the use of the infant and
the infant's representatives, conditioned well and fully to account for and concerning such trust, which bond may be
sued on by order of the court in the name of the Governor and for the use of the infant. Such bond shall be
approved by the court in which the action is commenced and such approval shall be filed in such clerk's office.”
 The CPA does not apply to juvenile court practice. In the Interest of T.M.M.L., 313 Ga. App. 638, 639 (2012).

The Cross-Over
The result of applying the CPA to juvenile practice is:
“Pursuant to OCGA § [15-11-98] the child himself is, in
effect, made a party to an action to terminate his parent's
or parents' parental rights. See In re L.L.B., 256 Ga. 768,
353 S.E.2d 507 (1987). Accordingly, appellant has
standing, through his duly appointed attorney and
guardian ad litem, to bring this appeal.”
In Interest of G.K.J., 187 Ga. App. 443, 370 (1988).
Where, as here, the court does appoint a guardian ad
litem to represent the minor, the minor is in effect made a
party to the action and has standing through the guardian
ad litem to appeal. Miller v. Rieser, 213 Ga. App. 683,
690, 446 S.E.2d 233, 238 (1994)

Prior to WLH & JCW – Child’s Standing to Appeal
Through ….

Prior to WLH & JCW – Child’s Standing

TWO CASES
 In the Interest of W.L.H., (Ga., S12G1049, March 4,
2013) (child has no standing to appeal)
 In the Interest of J.C.W., 318 Ga. App. 772 (2012)
(children have standing to appeal)

In the Interest of W.L.H., (Ga.,
S12G1049, March 4, 2013)
“In this case, we granted an application for certiorari
from the Court of Appeals’ decision in In re: W.L.H.,
314 Ga. App. 185 (2012) to determine whether a
child in a deprivation action has standing to appeal
when the child is represented by counsel and the
guardian ad litem chooses not to appeal.”
“Because the guardian ad litem is the legal
protector of a child’s best interests in deprivation
proceedings, we find that a child lacks standing to
appeal a deprivation ruling except through a
guardian ad litem.”

In the Interest of W.L.H.,
(Ga., S12G1049, March 4, 2013)
Summary:
(1)W.L.H. appealed the deprivation finding to the
Court of Appeals through his child attorney;
(2)Neither W.L.H.’s legal guardians nor his guardian
ad litem appealed the deprivation finding (guardian
opposed the appeal);
(3)On appeal, W.L.H. only challenged the trial
court’s due process rights;
(4)Merits of the case never reached, as the Court of
Appeals held, sua sponte: “we conclude the child
lacks standing to appeal without the aid of a
guardian or next friend.” 314 Ga. App. at 187.

Segue to In the Interest of W.L.H., 314 Ga.
App. 185 (2012)
Unique Circumstances of W.L.H.:
(1)“With the exception of criminal and delinquency
cases, we find no authority for an unemancipated minor
in a deprivation action, even if represented by counsel, to
appeal without the aid of a guardian or next friend.” But
see (i.e., no longer true), In the Interest of J.C.W., 318
Ga. App. 772 (2012) (children have standing to appeal
without a guardian ad litem because they are the real
parties at interest).
(2)“And here, the child has appealed despite the fact that
his legal guardians have not appealed and his court-appointed
guardian ad litem, duty bound to act on the
child’s best interests, has filed a brief actually opposing
the child’s appeal.” 314 Ga. App. at 187.

In the Interest of W.L.H., (Ga., S12G1049,
March 4, 2013)
THE HUNSTEIN, DOWNS DISSENT!!!
“In an opinion that disregards the child’s express
wishes, offers insufficient legal analysis, and fails to
provide needed guidance for our juvenile courts, the
majority opinion holds that a community volunteer
serving as the guardian ad litem is the only person
who can appeal on behalf of a child in a deprivation
action, regardless of the child’s age, the judgment of
the child’s attorney, or any other circumstances.”

In the Interest of W.L.H., (Ga.,
S12G1049, March 4, 2013)
THE HUNSTEIN, DOWNS DISSENT!!!
“The majority opinion fails to acknowledge
differences that exist in child representation in the
state and makes the role of the child’s attorney in
deprivation actions subservient to a lay guardian ad
litem. Because the juvenile in this deprivation action
was a party represented by legal counsel as
provided for by state law, I would hold that the 12-
year-old had standing to appeal the trial court’s
finding that he was deprived.”

 In the Interest of J.C.W., 318 Ga. App. 772 (2012)
Overview of the Case:
Infant twins represented by the Fulton County Office
of the Child Attorney appealed a juvenile court
order awarding long-term custody until their 18th
birthday to their maternal aunt and uncle.
Parent’s Attorney moved the Court of Appeals to
dismiss the appeal because the twins lacked
standing to appeal.

In the Interest of J.C.W., 318 Ga. App. 772 (2012)
“We first address the mother’s contention that the twins
lack standing to appeal in the absence of an appointed
guardian ad litem. In In the Interest of W.L.H., 314 Ga.
App. 185 (2012), cert. granted 2012 Ga. LEXIS 562
(Case No. S12G1049, May 29, 2012), we held that a
child could not file an appeal from a deprivation order
through a court-appointed attorney acting as the child’s
counsel. We reasoned that a child cannot ‘appeal
without the aid of a guardian or next friend.’ The facts
presented in W.L.H., however, differ from those
presented here. In W.L.H., the child had both a guardian
ad litem and an attorney, and the guardian ad litem filed
a brief opposing the child’s appeal brought by his
attorney.”

“In this case, it is undisputed that the children do not
have a court-appointed guardian and that they were
represented below by the Fulton County Office of Child
Attorney, which filed this appeal on their behalf. Our
holding in W.L.H. is therefore factually distinguishable
because there is no conflict between a guardian ad
litem and an attorney regarding whether an appeal
should be pursued on the children’s behalf.
Additionally, while we noted in W.L.H. that we could
‘find no authority for an unemancipated minor in a
deprivation action, even if represented by counsel, to
appeal without the aid of a guardian or next friend,’ we
did not so hold.”

“Now that the issue is squarely before us, we are
reluctant to conclude that the children in this case
lack standing to appeal through their attorney. It
cannot be questioned that the children are real
parties in interest whose lives will be directly
affected by the juvenile court’s decision regarding
custody until their 18th birthday under O.C.G.A. §
15-11-58(i)(1). While the children do not have a
guardian available to contest the juvenile court’s
ruling on their behalf, they do have an attorney
who has advocated on their behalf in juvenile court
and now seeks to do the same on appeal.”

“Dismissing the children’s appeal under these
particular facts and circumstances would be a
miscarriage of justice. We therefore deny the
mother’s request to dismiss this case based upon
the children’s lack of standing, and we find that the
children’s attorney may bring this appeal on their
behalf as there is no other representative available
to do so. We emphasize that this holding is limited
to the particular facts and circumstances of this
case.”

Where Are We Now?
 A13A0763. IN THE INTEREST OF A.D.P. AND P.A.P,
CHILDREN (Pending).
 “In light of the Supreme Court of Georgia’s recent
decision, In the Interest of W.L.H., a child,
S12G1049, decided March 4, 2013, we are removing
this case from the March 13, 2013 oral-argument
calendar. We invite the parties to file supplemental
briefs of no more than 15 pages by March 26, 2013,
to address whether the Appellant has standing to
bring the present appeal on behalf of the children in
light of the foregoing decision.”

New O.C.G.A. § 15-11-2 (52) –
CHILD IS A PARTY
 (52) 'Party' means the state, a child, parent, guardian, legal
custodian, or other person subject to any judicial proceeding
under this chapter; provided, however, that for purposes of
Article 6 of this chapter, only a child and the state shall be a
party.


New O.C.G.A. § 15-11-19 –
RIGHTS AT TRIAL
 (a) A party has the right to be present, to be heard, to present
evidence material to the proceedings, to cross-examine witnesses,
to examine pertinent court files and records, and to appeal the
orders of the court; provided, however, that the court shall retain the
discretion to exclude a child from any part or parts of any
proceeding under Article 3 of this chapter if the court determines
that it is not in such child's best interests to be present. An attorney
for an excluded child shall not be excluded from the proceedings.

 (b) A person afforded rights under this chapter shall be advised of
such rights at that person's first appearance before the court.


New O.C.G.A. § 15-11-103 –
ATTORNEY FOR CHILD
 (a) A child and any other party to a proceeding under this
article shall have the right to an attorney at all stages of the
proceedings under this article.
 (b) The court shall appoint an attorney for an alleged
dependent child. The appointment shall be made as soon as
practicable to ensure adequate representation of such child
and, in any event, before the first court hearing that may
substantially affect the interests of such child.
 (c) A child's attorney owes to his or her client the duties
imposed by the law of this state in an attorney-client
relationship.

New O.C.G.A. § 15-11-103 –
ATTORNEY FOR CHILD
 (d) If an attorney has been appointed to represent a child in a prior
proceeding under this chapter, the court, when possible, shall
appoint the same attorney to represent such child in any subsequent
proceeding.
 (e) An attorney appointed to represent a child in a dependency
proceeding shall continue the representation in any subsequent
appeals unless excused by the court.
 (f) Neither a child nor a representative of a child may waive a child's
right to an attorney in a dependency proceeding.
 (g) A party other than a child shall be informed of his or her right to
an attorney prior to any hearing. A party other than a child shall be
given an opportunity to:
 (1) Obtain and employ an attorney of such party's own choice;
 (2) Obtain a court appointed attorney if the court determines that
such party is an indigent person; or
 (3) Waive the right to an attorney.

New O.C.G.A. § 15-11-104 –
DEPENDENCY GAL (“SHALL”)
 (a) The court shall appoint a guardian ad litem for an alleged
dependent child.
 (b) An attorney for an alleged dependent child may serve as such
child's guardian ad litem unless or until there is conflict of interest
between the attorney's duty to such child as such child's attorney
and the attorney's considered opinion of such child's best interests
as guardian ad litem.
 (c) A party to the proceeding, the employee or representative of a
party to the proceeding, or any other individual with a conflict of
interest shall not be appointed as guardian ad litem.
 (d) A court shall appoint a CASA to act as guardian ad litem
whenever possible, and a CASA may be appointed in addition to an
attorney who is serving as a guardian ad litem.

QUESTIONS/DISCUSSION
From the Audience

 From an email…
 If a child has a dual role attorney, who believes the child's
directives are not in the child's best interest, withdraws as
GAL and asks the court to appoint a new GAL as required
by 10-2:
 does the new GAL then direct counsel for the child (at least with
respect to an appeal) under WLH?
 if so, does the new GAL play a different role from the original GAL
(e.g. have a fiduciary and confidential relationship with the child)?
 if not, can the child's attorney share confidential information with the
new GAL without violating 10-2 and (RPC 1.6)?

 From an email…
 If the child has a separate attorney and GAL, who
disagree about whether an appeal is in the child's best
interest, may the attorney request appointment of a
different GAL/next friend to direct the appeal:
 on the basis that the original GAL has a conflict of interest (had a
duty to the court to give an opinion (testify) as a fact (expert)
witness on child's best interest, but no duty to protect the child's
legal interests, and had taken (is taking) a position arguably
adverse to the child)?;
 on the basis that the attorney, under 10-2 and 1.6 is prohibited from
sharing confidential information with the original GAL (and if so
should the attorney request an appointment order for the new GAL
specifying that the new GAL will have a fiduciary duty and
confidential relationship with the child and no duty to the court as a
witness)?

CONTACT INFORMATION
Willie J. Lovett, Jr., J.D., LL.M., CWLS, Director Trenny Stovall, J.D., Director
Fulton County Office of the Child Attorney DeKalb County Child Advocacy Center
395 Pryor Street, Suite 4098 4309 Memorial Drive
Atlanta, Georgia 30312 Decatur, Georgia 30032
willie.lovett@fultoncountyga.gov tstovall@dekalbcountyga.gov
(404) 612-4407 (404) 294-2335
Aimee E. Stowe, J.D., Appellate Attorney
DeKalb County Child Advocacy Center
4309 Memorial Drive
Decatur, Georgia 30032
astowe@dekalbcountyga.gov
(404) 294-2335

Child's Right to Counsel in Dependency Proceedings

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