“best interests.” 29 If the latter, at least when following the Peters playbook, the lawyer would have
a shot at formulating a position that was more than just the lawyer’s personal preference or belief
about what was best for the child. 30
I got to know Guggenheim through a friend who had been his student. Guggenheim offered
encouragement and wisdom in equal, welcome measure. He taught that a child’s lawyer need not
always have a position on the outcome, particularly if the child was young and if the lawyer did
not have access to any information beyond what was developed on the record before the judge. 31
It was not only permissible, but honorable, to focus instead on the process, advocating for speedy
hearings and respectful treatment of the client’s parents. 32 I still remember the first time I refused
to take a position. It was an abuse case, and my two-year-old client had been severely burned; the
parents asked for the child to be returned from care, and the court conducted the statutorily-required emergency custody hearing. I had no idea what had happened to my client, even after
reviewing all the evidence and asking open-ended questions of the witnesses at trial. When it came
time for my summation, I highlighted for the judge what seemed to be the most important pieces
of evidence on both sides, and then confessed that I did not have a position. My supervisor, who
happened to be in the courtroom at that very moment, was displeased and told me afterwards that
it was my obligation to have a position on every case. The judge, however, thanked me for my
integrity (we are now colleagues).
The theme that children are not atomized beings, but part of families who can only be
understood in the context of those families and advocated for with that understanding firmly in
mind, was driven home for me by the Fordham II conference in 2006. Fordham I had been a
gathering ten years prior at Fordham University, where child advocacy was the center of a national
intellectual discussion. 33 Fordham I made a resounding call for every child in a dependency case
to have a lawyer, which was still a novel argument at that time. 34 But when many of the same
leading thinkers and lawyers came together in 2006 at UNLV, it was in the wake of significant
growth in the foster care population. The consensus was that the field needed a more nuanced way
of thinking about how to properly represent a child which took into account the child’s place within
a family structure. The conference’s conveners, along with Guggenheim, Peters, and many others
who contributed to the conference book, 35 are responsible for what we might call the 21st century
approach to child advocacy, which is more of the kind of advocacy we see today.
First and foremost, Fordham II reiterated the strong consensus that children in dependency
cases need to have a lawyer-advocate, not a lay GAL. 36 For a long time, this idea was contested,
but no longer. Lawyers are seen as the only player in a complex system capable of truly vindicating
the child’s rights – whatever those might be. Ironically, when I left Legal Aid, it was because I felt
29 Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child
Protective Proceedings, 64 FORDHAM L. REV. 1505 (1996).
30 REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS, supra note 27, at 17.
31 Guggenheim, supra note 16, at 138.
32 See, e.g., MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS (2005).
33 Bruce A. Green & Bernadine Dohrn, Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV.
1281 (1996). The purpose of the Fordham I conference was first to make explicit for practitioners around the country
the areas of professional consensus regarding the role and scope of the child’s attorney, and second to further a
dialogue around those areas of child advocacy where a consensus was lacking.
34 Id. at 1294–95.
35 Bruce A. Green and Annette Appell, Representing Children in Families – Forward, 6 NEV. L.J. 571 (2006).
36 Id. at 572, 584; see also Erik S. Pitchal, Children’s Constitutional Right to Counsel in Dependency Cases, 15 TEMP.
POL. & CIV. RTS. L. REV. 663, 665 (2006).