A program designed to protect "children's rights" in Maryland court proceedings involving abused and neglected children is resulting in some lawyers arguing for actions that they acknowledge could be dangerous to their young clients.
Since last October, Legal Aid attorneys, operating under a contract with the state, have been representing children brought to juvenile court in "Children in Need of Assistance" (CINA) cases.
Following a controversial policy that they had outlined in bidding on the contract, which is in effect in all Maryland jurisdictions except Montgomery County, the Legal Aid lawyers have been fighting for what the child wants and not necessarily for what they believe may be in the child's best interests.
In Montgomery, as in the District and Virginia, private lawyers are hired to represent juveniles. They are expected to take the child's wishes into consideration, but end up proposing what they think is best, even if it is not the same as what the child wants.
Many of Prince George's social workers, and attorneys for the department of social services, contend that it is wrong to advocate anything but the "best interest" of the child. They complain that the Legal Aid lawyers complicate and lengthen the proceedings as they fight for the desires of their young clients.
But Timothy Paulus, who heads the Legal Aid's child unit in Prince George's, said that "it's our belief that a child whose life is being drastically affected by the court system, because the child is a victim, should have a say."
"In a case where you have a severely abused child, or a neglected child, you as an attorney have to advise your client the child of the options," he explained. "The client is the one who makes the decision. Attorneys wouldn't think of doing so in other cases. Our philosophy is that children should have the same opportunities."
In the first six months of the contract, Legal Aid has represented about 150 juveniles in Prince George's. Nicholas Orlyk, one of the Legal Aid attorneys in Upper Marlboro, estimates that more than 90 percent of his clients, about half of whom are pre-adolescent, are capable of "considered judgment" and able to express their desires.
"There are cases where I argue a vigorous, thorough case, and am glad the judge makes a decision against my client," Orlyk said, adding: "It was my job to do what my client wishes."
He said that it is the judge's job to decide what is in a child's best interest, and not the attorney's, pointing out: "We are lawyers and we have a very specific job to do."
He recalled a case earlier this year in which a teenaged girl, allegedly abused physically at home, insisted that she wanted to return there.
"We went through the pros and cons of that choice very thoroughly," Orlyk said. "We explained the risks involved . . . . But her choice, after a full discussion, was to fight to go home."
Orlyk said that he forcefully presented the girl's choice to the judge, who nevertheless ruled that the girl could not go home "because the risks were too high." Orlyk said he "felt bad that the girl was unhappy . . . as for her physical well-being, the court decided she was better served by her being out of the home."
Children often want to return to the home where they have been subject to severe abuse, said E. Gary Neal, an attorney in private practice who had represented many children in CINA cases until Legal Aid stepped in.
"I have seen cases where a child who is covered with scar tissue from severe beatings, still loves the parents," he said.
Neal said that he presented the cheldren's views to the judge, but "always looked at the cases for the best interest of everyone."
Phyllis Oetgen, another lawyer who handled CINA cases before the Legal Aid lawyers arrived, argues that children "are not always in a position to evaluate all the ramifications of what is happening," and it is up to the attorney to fight for the child's best interests. Oetgen said: "There is probably a low percentage of cases where children know what's best for them."
Karel C. Petraitis, who has represented Social Services at CINA hearings for eight years, said that she believes an attorney has "an obligation to look after the best interest of the child."
If lawyers accede to a child's wishes, "in the long run, you may be doing your client a disservice, making the trauma a lot harder to accept," she said.
She added, however, that she knows of no instance in which the new policy has hurt children, because judges still seek to determine the children's best interests.
Circuit Judge David Gray Ross said that he keeps a newspaper clipping in the top drawer of his desk, describing the death of a neglected child, as a reminder of what is at stake in CINA cases.
Paulus acknowledges that children sometimes insist on a dangerous course.
"That's probably an example of why these children need to be represented and counseled," he said. "If they are properly represented and counseled, more than nine-tenths of the time they are not going to take the Doomsday Option. Most of our clients tell us right off they don't want the dangerous option.
"We are sort of the new kids on the block, and we have come in with different philosphies and different ideas than has been the norm. Given that fact, we have got a lot of cooperation."
According to a Legal Aid study of 62 cases, the children and their attorneys agreed with Social Service recommendations 62 percent of the time.
William Grimm, chief child advocacy attorney for Legal Aid in Baltimore, said "a judge knows . . . certainly by this time, that we are not advocating the best interest. They know Legal Aid's position, and know when to take the attorney's arguments with a grain of salt."
But one Prince George's County judge, who has heard CINA cases and asked not to be identified, said that this is not always true. He noted that Legal Aid lawyers are well-versed in rules of legal proceedure, which can lead to a CINA case being dismissed.
"I can't say 'I know it's hearsay, but I want to hear it anyway,' " the jurist declared. "Yes, they are only doing their job, but sometimes this has bad results."