YOUTH ATTORNEY

GENERAL PROVISIONS, ARTICLE 1:  The primary change in the general provisions article is the establishment of an attorney for children age 14 or older in Article 3B and Article 4 proceedings. This is an important initiative that is closely related to efforts to successfully transition youth in the foster care system to adulthood. Other changes in this article relate to achieving consistency with federal law and clarifying the terms guardian, custodian, and legal custody.

Guardian ad Litem and Child’s Attorney (32A- 1-7, a new section 32A-1-7.1, and 32A-4-10)  These sections together establish client-directed representation for children age fourteen or older in actions under Articles 3B and 4. This change gives older children a voice in decisions being made about their lives and conforms the practice to the children’s mental health laws. The best interest of older children will continue to be the responsibility of the department, the court appointed special advocate (CASA) and the court. Children under the age of 14 continue to have attorney guardians ad litem, who represent the child’s best interest.

 This change was a result of a multi-year effort by the New Mexico Supreme Court’s Court Improvement Project to improve representation for children. The new approach was developed by over 100 attorneys and child advocates, after hearing from national experts at a symposium sponsored by UNM Law School in October, 2003.

 The standards for representing children in abuse and neglect proceedings adopted by the American Bar Association and the National Association of Counsel of Children recommend direct representation for all children in abuse and neglect proceedings. The revisions to the New Mexico Children’s Code reflect a compromise between proponents of the GAL model and proponents of the direct-representation model in that they establish direct representation for older children while preserving the traditional GAL model for younger children.

 In arriving at the age of 14 for acquiring the right to direct representation, the Task Force reviewed Article 2, in which 14 is the age at which a child can receive adult sanctions and Article 6, where children acquire rights to consent to mental health treatment and receive an attorney at age 14. The age of 14 becomes an age where youth acquire a range of rights and responsibilities which help them transition to the rights and responsibilities they will have as adults.

32A-1-7 Guardian ad litem  The powers and duties of the guardian ad litem (GAL) have been changed to require that the GAL shall consult with the child and then inform the court of the child’s position at every hearing.  The law already required that the GAL represent the child on appeal. It was amended to provide that, “unless excused by the court, a guardian ad litem appointed to represent a child’s best interest shall continue the representation in subsequent appeals.” Even if the child turns 14 during the appeal, the Gal would continue to represent the child’s best interest because the subject of the appeal is a matter that pre- dates the child’s turning 14.

32A-1-7 Guardian ad litem (Continued)  A party may petition the court to have a GAL removed.  If a GAL retains separate counsel to represent the child in a tort action or other action that is outside the jurisdiction of the children’s court, the GAL may not retain a pecuniary interest in the action even with the permission of the court.  The GAL shall receive all notices and pleadings and may file pleadings and motions.  In response to State of New Mexico v. Joanna V., 2004 NMSC 24, June 8, 2004, language has been included to prohibit a child’s GAL from serving at the same time as the attorney for the child in the delinquency proceeding.

New section, likely number: 32A Child’s attorney  The child’s attorney has the powers and duties of any attorney under the Code of Professional Conduct in New Mexico.  The attorney shall represent the child in an appeal, unless excused by the court.  The attorney has the same authority as the guardian ad litem to retain counsel to represent the child in a proceeding outside the jurisdiction of the children’s court, so long as the attorney does not retain a pecuniary interest.

32A-4-10 Basic rights  Section D. clarifies the process for the transition from a guardian ad litem who represents the child’s best interest to a child’s attorney who represents the child, when the child turns 14. The attorney who was GAL will continue as the child’s attorney unless the child requests a different attorney, the GAL requests to be removed, or the court determines that appointment of a different attorney is necessary.

 Rationale: Preserving connections is important for children and if the GAL and the child have had a positive continuing relationship, that relationship should be allowed to continue. On the other hand, the difference between the child’s wishes and the GAL’s views may be too different for the GAL to continue as counsel, or the best interest of younger siblings may result in a conflict, depending on the circumstances.

 Only attorneys with appropriate experience may be appointed as the child’s GAL or attorney. This amendment conforms the Children’s Code to the 2003 amendments to the federal Child Abuse Prevention and Treatment Act.

Best Practice for GALs

1. At the beginning of representation inform the child of your role as guardian ad litem, including limits on confidentiality.

2. Inform the child at 13 ½ that both the guardian ad litem and the youth have to determine whether or not the guardian ad litem should continue as the youth’s attorney once the youth turns 14 years of age.

3. Determine if the guardian ad litem has a conflict of interest representing the youth as an attorney. a. Does the guardian ad litem represent other siblings with different goals and objectives for representation? b. Are there facts learned in representation of siblings that create a conflict? c. Even if it is determined that there is no conflict at this time, consider whether a potential conflict exists and disclose such to the client. d. If it is determined that there is a conflict of interest, is it a waivable conflict of interest and are both parties able and willing to waive the conflict?

4. Make a decision with the youth about whether or not you will continue to represent the youth.

5. Inform the Court prior to the youth’s 14 th birthday that: a. The guardian ad litem, with consent of the youth, will continue as an attorney; b. The guardian ad litem or the youth requests the appointment of another attorney to represent the youth.

Attorneys Representing Youth Aged 14 and Older

1. Youth aged 14 and older have a right to an attorney.

2. Clarify duty of confidentiality to youth aged 14 and older. a. Discuss your duty of confidentiality to your client. b. Individual cases may require additional assessment: abuse, suicide plan, homicide plan. b. Communicate to others in the case (including foster parents) that you will protect the confidential information you receive from your client. c. Label any written communication to your client “Privileged and Confidential.”

3. Advise your client regarding communications with CYFD when you are not present with respect to issues directly related to the court proceedings, including your client’s position on issues in the case.

4. Advise your client regarding interactions with CRBs and CASAs.

5. Inform your youth client of other rights the youth has as a child aged 14 or older under New Mexico law. a. Right to consent or not to consent to psychotropic medications. b. Right to disclose or to refuse disclosure of mental health records, unless a treatment guardian is appointed.

6. Review court pleadings with your client.

7. Discuss whether or not the youth intends to participate in the court proceedings. a. If the youth wants to come to court, make sure that CYFD has transportation arranged. b. If the youth wants to come to court, make sure to discuss whether the child wants to address the court and help child prepare.

c. If the child does not want to come to court, find out why. Is there anything that could be done to support the child coming? 1. Consider need for continuance if it is a scheduling problem. 2. Consider having the child go to the court room in advance of the hearing if anxiety is the obstacle to attendance. 3. Consider other ways for child to present their opinion to the court such as meeting the Judge in chambers (with consent of other parties).

8. Consider communicating with the youth in writing. a. Assist the youth in organizing papers related to their case. b. Develop a representation agreement and review with the youth to clarify responsibilities. c. Follow up conversations with letters to explain the issues in the case and to commemorate the youth’s position, as you understand it.

Best Practices for CYFD

1. Be clear about your role as legal custodian, make sure to identify the youth’s needs for educational, health and mental health services.

2. Contact the youth’s attorney prior to interviewing the youth about issues related to the court proceeding, including any potential testimony.

3. Be prepared to arrange transportation for the youth to attend court proceedings.

4. Use team meetings to have discussions about issues related to court proceedings so that all of the players can participate in decisions with counsel notified (and ideally present) about the meeting.

5. Consider interactions with youth regarding issues related to court proceedings similarly to interactions with respondents, both are represented by counsel.

6. It is important to make sure that counsel for youth are informed of your position and your discussions with their clients.

7. Do not expect youth or attorneys to disclose information that is covered by attorney-client confidentiality. Questions that may be problematic are: a. “What did your lawyer say?” b. “What did you tell your lawyer?

8. Understand that attorneys will be discussing and advising their clients about legal issues in the case, including issues such as adoption, terminations of parental rights, medications, change of placements, and mental health services. If you or the child’s therapists have opinions about how those issues should be addressed, be timely in communicating such opinions to the attorney.

Best Practices for Respondent Counsel

1. Encourage your clients not to pressure youth or discuss legal issues related to the case with the youth without their attorney present.

2. Encourage your clients not to punish youth for taking positions that do not appear to be in your client’s interest.

3. Explain to your clients that the youth are being represented by counsel and that they have a more direct role in the proceedings once they are aged 14 or older.

4. Communicate with the youth’s attorney about your client’s position in the case.

5. Include the youth’s attorney in any settlement negotiations or plea offers.

Best Practices for Judges

1. Determine if the youth and guardian ad litem have informed the court whether there is a need for the appointment of a different attorney for the child at age 14.

2. If the guardian ad litem and the youth intend to continue representation, consider whether there are any known conflicts to the representation (e.g. clear sibling conflict).

3. If there is no known conflict, the Court should not inquire beyond the representations in the pleadings.

4. Prior to the youth’s 14 th birthday, inform them that their guardian ad litem will meet with them to discuss their right to an attorney at age 14.

5. At the first hearing after counsel has been appointed or continued for a youth aged 14 or older, advise the youth that they are now represented by counsel.

Best Practices for CRB/CASAs  1. Focus on what is in the child’s best interest.  A. Pay attention to documented education needs, including the need for special education services, and monitor whether services have been offered.  B. Pay attention to documented health and mental health needs and monitor whether services have been offered.

 2. Do not expect attorneys or the youth to discuss information that is protected by attorney-client privilege.

 Do not request that youth provide information about medications and mental health treatment that is confidential in nature.  A good rule of thumb is to remember that mental health information and reproductive health care information is confidential.

 3. Understand that attorneys may request to be present when their client is interviewed.

 GOAL: For every child aged 14 and older to have a CASA.