Published Tuesday, October 02, 2012
By Walter C. Jones
Morris News Service
ATLANTA – The question of whether a child can order his attorney to take legal action when his guardians disagree gave Georgia's top court plenty to debate Monday.
The same issue has been kicked around in the General Assembly for the last four years and is likely to come up again since it passed the House unanimously last session before dying in the Senate.
Legal experts say it's overdue for children to have a lawyer who works solely for them, while others warn that the costs and confusion will swamp juvenile courts that are already staggering under heavy caseloads.
The case before the court started in 2010 when a 12-year-old Walton County boy asked his appointed attorney to fight a court order to take him away from his cousins who as guardians had raised him since he was a toddler. His father is dead, and no one knows where his mother is.
The Department of Family and Children's Services sought to have him removed from his home after he received bruises from one of his guardians hitting him although she had agreed with a department caseworker not to result to physical punishment. Lawyers told the justices that the boy, whose identity was withheld, also suffered from an extreme case of attachment disorder that led him to an unhealthy dependence on his cousin.
Removal from the home was necessary so the boy could receive treatment that his cousins couldn't afford, according to Woodrow Ware, an Athens attorney representing the boy's court-appointed special advocate.
The special advocate didn't fight the removal, but the boy asked his attorney, Lori Duff, to challenge it. That brought the question to the court of which representative for a child should judges listen to.
A half-dozen child-advocacy groups filed friend-of-the-court briefs in support of Duff's contention that a child's lawyer has the right and responsibility to follow the child's wishes even if the guardians or special advocates disagree.
Justices David Nahmias and Harold Melton took turns firing questions at her.
"My understanding is that you're saying the child has the right to make all decisions himself, which would include the right to fire you and proceed (as his own attorney)," Nahmias said.
Duff replied, "You have to take it on a case by case basis."
Later Melton noted that children usually don't have authority to make certain decisions.
Duff said in this case, she as the attorney had confidential information that she could not share with the special advocate under attorney-client-privilege rules, and that's why the special advocate refused to file an appeal as the child requested.
The state's attorney, Calandra Harps, told the justices that the legislature in existing law gives the sole authority to make legal decisions for the child to the special advocate appointed by the juvenile judge. That's a practical solution that the high court should abide by.
She said there was no precedent in Georgia for what Duff was calling for.
Ware went on to offer a warning. He said requiring a lawyer for every child in a custody case as in a criminal case would be expensive.
"We have lots of appeals in criminal law. I would expect to have lots of appeals in this situation as well if Ms. Duff's position is accepted." he said.