Some Thoughts About Representing Older Child Clients

Mary Kay O’Malley has been the director of the Child and Family Services Clinic and associate clinical professor since 2002. She obtained her Bachelor of Arts from St. Mary-of-the-Woods College near Terre Haute, Indiana and her Master of Arts from UMKC. After working as a social worker for the Missouri Division of Family Services for 13 years, she graduated cum laude from the Washburn University School of Law in Topeka, Kansas. Professor O’Malley was employed as a prosecuting attorney at the Jackson County Family Court for six years and a partner with Raith and O’Malley P.C., focused on juvenile and family law. Her other teaching assignments include the law school’s Guardian ad Litem Workshop, and she is the legal director of the Kansas City Youth Court program housed at the law school.

by Mary Kay O’Malley

Mary Kay O'MalleyThe most obvious difference between representing younger and older children is the older child’s ability to communicate. Along with a larger vocabulary, older children usually have more advanced emotional language skills and a better understanding of their circumstances. This raises the question of how much input an older child should have in what happens to them. There are many important reasons to engage older children fully in discussing their goals and some of the ways in which those goals might be achieved. Too often it seems that Guardians ad litem (GAL) merely ascertain the child’s feelings, but spend little time considering the child’s competence to independently see and assess his or her options. No doubt some older children would make bad choices and a GAL would have to recommend a course of action contrary to the wishes of the child. Still, many young people have good insight into their families and what to do to remain safe. In that case shouldn’t the Guardian ad litem engage the child in the representation and incorporate the child’s wishes as much as possible in any recommendations made to the court? It is the child’s life after all, and like anyone, older children may accept a contrary position as long as they feel their opinion was heard and respected. For this reason, the GAL will need to spend ample time talking with older youth.

According to the Missouri Supreme Court Guardian ad litem Standards (Standards) a GAL must relate to the child “according to the child’s stage of development.” Standard 4.0. Understanding the child’s development aids the counseling process, facilitates trust, helps determine the truth and identify appropriate services. It also allows the GAL to engage in collaborative representation that can actually help model good decision making for older youth. Young people involved with the juvenile court system are powerless in almost every aspect of their lives. They often can’t drive a car or even go to their grandmother’s home without a worker’s permission. Some opportunities to practice problem solving skills are denied them because they live under the authority of the system. Engaging these children in decisions about their circumstances can be effective education and advocacy.

Here are some categories of information the GAL should consider when determining a child client’s developmental level:

  •  Cognitive functioning, based on assessments, evaluations, caretakers’ descriptions, and the GAL’s own impressions;
  •  Educational History, including grades, teachers’ comments, IEPs, and number of schools attended;
  •  Medical records, noting child’s growth and developmental history, milestones, and any significant illnesses or injuries that could have affected development;
  • Home environment, observations of stimulation, opportunities for learning, parental physical and mental health, and cultural differences; and
  •  History of trauma, understanding especially the possible reaction to stress (flight, fight or freeze) to understand the child’s responses.

Understanding the child client’s development not only helps with communication, but also allows the GAL to assess the child’s competency to understand information the GAL is ethically obligated to provide. Pursuant to Standard 9.0 the GAL must explain the court process and encourage older youth to attend hearings. For this reason it is advisable to provide older youth with a glossary of legal terms they are likely to encounter. The terms should be simply defined and the GAL should answer any questions the child client may have. The GAL must also explain the child’s role during the proceeding. More often than not it seems like the old adage “children should be seen, but not heard” prevails during hearings. Beyond a few questions like “how are you doing?” or “how is school?” many children are talked about, but not directly addressed during court proceedings. Former foster children have mentioned this lack of input as one of their major complaints with the system. Adolescents naturally resent adults who are condescending toward them and will ignore or rebel against a system that does not appear to value their opinions. Believing a judge does not care about them will reinforce the low self-esteem that often plagues children who have been abused or neglected. The GAL who has established a relationship and learned to communicate effectively with the child client can make all the difference in how an older child views the court and their own value in the process. For a great resource see the ABA’s article Counseling Children and Youth in Times of Crisis: Tips to Achieve Success and Avoid Pitfalls by Lauren Girard Adams, Esq. and Maisley Paxton, Ph.D., (2009).

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