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June 11, 2003
Capitol Building, Room 302
Cheyenne, Wyoming
Ken Koski, State Public Defender's Office, Chairman;
Senator John Hanes;
Representative Monte Olsen;
Governor's Appointees:
Department of Family Services: Donna Sheen;
State Advisory Panel on Juvenile Justice: John Frentheway.
John Rivera, Senior Staff Attorney, and Mike Causey, Staff Attorney.
Please refer to Appendix 1 to review the Committee Sign-in Sheet for a list of other individuals who attended the meeting.
None.
All meeting materials and handouts provided to the Committee by the Legislative Service Office (LSO), public officials, lobbyists and the public are referenced in the Meeting Materials Index, attached to the minutes. These materials are on file at the LSO and are part of the official record of the meeting.
Chairman Koski called the meeting to order at 8:30 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Chairman Koski presented the Subcommittee with the minutes of the last Subcommittee meeting and asked for comments, and the Subcommittee approved the minutes with a minor correction (see Appendix 3). Chairman Koski also presented the Subcommittee with copies of an informal opinion from the Office of the Attorney General surmising that W.S. 14-6-222(d) was, given previous case law and other direction from the courts, constitutional (see Appendix 4).
Donna Sheen led the discussion on the role of the attorney, guardian ad litem and lay advocate. Ms. Sheen distributed copies of the National Association of Counsel for Children (NACC) Recommendations for Representation of Children in Abuse and Neglect Cases and briefly discussed the materials (see Appendix 5). Ms. Sheen indicated that standards for representation of children have not been set in Wyoming and that standards may be set either through creation of a new office or by the courts. Ms. Sheen indicated that while lay advocates may be used to help represent children, the role and importance of the attorney must not be lessened or forgotten. Ms. Sheen also gave the Subcommittee a report on the competence of juveniles to understand the nature of legal proceedings and articles on Michigan's experience with defining roles of child advocates and on common problems between child welfare and juvenile justice systems (see Appendices 6, 7 and 8).
Mark Hardin, Director of the National Child Welfare Resource Center on Legal and Judicial Issues at the American Bar Association's (ABA) Center on Children and the Law, was called to discuss several topics with the Subcommittee relating to the role of attorneys in the representation of children. Mr. Hardin indicated that while everyone understands the role of the courts, the role of the attorney remains much more of a mystery, even though attorneys serve the purpose of controlling the information that gets to the courts. Additional sources of confusion are the facts that parents sometimes pay for the attorney's services and that many of the issues that must be dealt with are nonlegal or have broader implications than the case at hand. For example, Mr. Hardin indicated that a simple abuse/neglect case can involve years of involvement possibly leading to an adoption, and the attorney must keep on top of the case for the entire length of the legal process. Other cases—including paternity and to a lesser degree delinquency—may be of a more limited amount of time, but there are no guarantees. Mr. Hardin indicated that the statutes of most states have not been created to allow for such long-term involvement by attorneys or the courts.
With regard to the representation of children versus the representation of those children's best interests, Mr. Hardin stated that ABA policies indicate that attorneys can represent both the child and the child's best interests. However, if there are differences between those two ideals, then a second attorney should be appointed. Mr. Hardin was uncertain whether the ABA policy met the requirements of the federal Child Abuse Prevention and Treatment Act but indicated that the Act was probably the most important federal law on the subject. Mr. Hardin also indicated that another important federal law remains the Adoption Safe Families Act (ASFA). Mr. Hardin stated that ASFA applies when a child is removed from a home and placed in any other setting but a detention facility and where the state wishes to receive funding for the proceedings.
Mr. Hardin also commented upon some of the problems facing those involved with representing children, including the low expectations of the courts overseeing the legal process. Many attorneys seem to show up at the time of the hearing to learn about the case, and many others do not understand the unique roles that attorneys must play when representing children. Mr. Hardin also indicated that a lack of training and funding for qualified attorneys presents major problems in many states. With various cases pointing to the necessity of appointing qualified attorneys to assist parents and children in the legal process, many states seem to have adopted some standards for the legal representation of children. Mr. Hardin indicated that while most states do not have one office designated to set those standards, smaller states such as Wyoming might have an advantage in doing so. Mr. Hardin said that he believes using full-time staff would be the best approach but indicated that the use of contract attorneys may be used as well. Mr. Hardin also stated that both the ABA and NACC have set standards for attorneys that may be used as models and welcomed additional comments and questions from the Subcommittee.
Marvin Ventrell of the NACC was called to continue the discussion of the roles of attorneys involved with representing children, particularly in delinquency/juvenile justice cases. Mr. Ventrell indicated that one area of concern remains where delinquency cases "crossover" into other types of cases. Mr. Ventrell indicated that the use of lay advocates is often a big help but stated that limitations include the inability of such persons to provide legal representation and the need to supervise and train these lay advocates. A "teaming" approach with both lay and legal advocates is often used, but this approach creates a few ethical concerns that need to be worked out. Mr. Ventrell indicated that either statutes or court rules could be used to address any concerns. With regard to whether a "one-door" approach is better than having less specialized courts, Mr. Ventrell stated that although specialized courts may be the better option, having specialized courts may not be a practical solution in Wyoming.
Chairman Koski next addressed some questions about the use of volunteers in the representation of children. Chairman Koski handed out an e-mail from Pam Emerson from Sheridan County CASA program as well as an article supporting the use of volunteers as lay and legal advocates (see Appendices 9 and 10).
John Frentheway led the discussion of court appointments of attorneys. Mr. Frentheway provided copies of a handout from the last Subcommittee meeting to share his thoughts and experiences on the subject (see Appendix 11). Mr. Frentheway detailed how the current system typically operates in Wyoming but also revealed several surprising facts about that system, including that DFS research showed among other things that approximately 36% of boys at the Boys' School were not represented by an attorney. Mr. Frentheway provided other statistics to the Subcommittee and shared his concern that attorneys need to meet with the children before legal hearings (see Appendix 12).
After the discussion of the roles of advocates for children and court appointments of attorneys, the Subcommittee discussed draft legislation. The Subcommittee first agreed to request that the LSO draft a bill requiring the appointment of attorneys in two specific circumstances (delinquency and children in need of supervision) addressed by W.S. 14-6-413 and 414 and 14-6-213 and 214. Next the Subcommittee discussed the draft legislation creating a new agency within the Governor's Office as proposed during the last Subcommittee meeting. Chairman Koski presented a letter from Joe Baron, Crook County and Prosecuting Attorney, in which Mr. Baron expressed his concern over the proposed 50/50 percentage split between state and county funding (see Appendix 13). After additional discussion, the Subcommittee agreed to amend the draft legislation. In addition to several minor, more technical changes, the Subcommittee voted to amend the draft by granting the courts the ability to appoint volunteer lay advocates in addition to guardians ad litem.
There being no further business, Chairman Koski adjourned the meeting of the Subcommittee at 4:58 p.m.
Respectfully submitted,
Ken Koski, State Public Defender, Chairman