Colorado School of Medicine as a professor of pediatrics. 17 Bross also became the first Director
of Education and legal counsel for the Kempe Center for the Prevention and Treatment of Child
Abuse and Neglect. The following year, he was among those who founded NACC. 18
When it was founded, NACC’s preeminent purpose was to ensure that every child in a
child welfare proceeding was represented, ideally by a lawyer. 19 Bross invented the term “pediatric
law” 20 and worked hard to advance the idea that children need and deserve to be represented in
child welfare proceedings. An important and long-standing issue NACC had to deal with, which
has never quite been resolved, was why a child needs a lawyer and what role a child’s lawyer
should play in a child welfare proceeding. Even though Gault spelled out the role of counsel in
delinquency proceedings, it is anything but clear whether the role a child’s lawyer should play in
a delinquency proceeding is the same as what is required of a child’s lawyer in child welfare
proceedings. Gault explained that children’s lawyers in delinquency proceedings have three
principal responsibilities: “to make skilled inquiry into the facts, to insist upon regularity of the
proceedings, and to ascertain whether he has a defense and to prepare and submit it.” 21 This is, of
course, indistinguishable from the role expected for lawyers representing adults in criminal
The question remains, what has Gault to do with child welfare proceedings? There are
important overlapping characteristics in juvenile delinquency and child welfare proceedings. In
both proceedings, the state’s stated purpose is to intervene to help the child. In both proceedings,
state officials may seek a court order to remove the child from his or her family and place the child
in state custody. In delinquency proceedings, to be sure, the children are at risk of being placed in
institutions, whether they be called training schools or prisons, but many are also at risk of being
placed in foster care. 23 In child welfare proceedings, children are at risk of being placed in
17 Biography of Donald C. Bross, JD, PhD: Professor of Pediatrics and Family Law, UNIV. OF COLO. DENVER,
es/ Don_Bross.aspx (last visited Nov. 5, 2018).
19 Donald C. Bross, The Evolution of Independent Legal Representation for Children, 1 J. CTR. FOR CHILD. & THE
CTS. 7 (1999).
20 Id. at 14.
21 Id. at 36.
22 The manner in which a child’s lawyer in a delinquency proceeding might differ from how a lawyer would go about
serving his adult client in a criminal proceeding. For example, the skilled juvenile lawyer might need to communicate
with his or her client in a specialized way, ensuring that the client fully grasps the choices faces him or her, but the
ends and goals of the representation were indistinguishable. Despite this clarity, the legal literature in the immediate
wake of Gault rather remarkably disputed and debated the appropriate role of counsel for accused delinquents. See,
e.g., Jacob L. Isaacs, The Lawyer in the Juvenile Court, 10 CRIM. L.Q. 222, 233-34 (1908); Richard Kay & Daniel
Segal, The Role of the Attorney in Juvenile Court Proceedings: A Non-Polar Approach, 61 GEO. L.J. 1401 (1973).
There is no need here either to revisit the counter arguments of the role of counsel in delinquency proceedings or when
and how the role ultimately came to be agreed upon. Suffice it to say, there no longer is a doubt about counsel’s role
in delinquency proceedings.
23 See, e.g., N.Y. FAM. CT. ACT § 353.3 ( 1) (2018) (“the court may place the respondent in his or her own home or in
the custody of a suitable relative or other suitable private person or the commissioner of the local social services
district or the office of children and family services pursuant to article nineteen-G of the executive law, subject to the
orders of the court”). As explained by Merril Sobie in the Practice Commentaries, New York law “confers the general
placement authority, i.e. the placement of respondents in their own homes, with suitable relatives, with appropriate
local commissioners of social services, or with OCFS [the New York State Office of Children and Family Services].
The list includes every possibility ranging from ‘home’ placement or foster care placement, to placement with an
authorized private residential care agency (via a commissioner of social services or OCFS), or a secure placement.”