16 Children’s Legal Rights Journal [Vol. 39: 1 2019]
institutions, group homes, or foster care. 24 Importantly, the Gault Court was disinterested in what
the facilities were called. 25 Gault also eschewed any interest in the state’s professed purpose in
seeking the court order. It single-mindedly focused on the liberty rights of children and declared
that they had the right to prevent disruption of their lives over their objection by being provided
with a lawyer whose purpose is to fight against the state’s goal when the child is opposed to it. 26
As Marvin Ventrell explains, “scholars have argued for the extension of Gault to child
welfare law on the theory that maltreated children face a similar deprivation of liberty to juvenile
confinement in that they are forcibly placed by the state in various settings (albeit ‘for their own
good’).” 27 There is, however, one overwhelming distinction between these very different kinds of
proceedings. In delinquency proceedings, the child is accused of behavior that warrants
intervention. In child welfare proceedings, the child is not accused of anything; he or she stands
before the court as a putative victim of his or her caregiver’s wrongdoing. Unlike in child welfare
proceedings, the structure of delinquency cases pits the state against the child.
How much of a difference this distinction makes in determining the role and purpose of
the child’s lawyer in a child welfare proceeding has never been satisfactorily resolved. 28 On the
one hand, it is entirely fair to point out that children in child welfare proceedings who become state
wards as a result of court intervention are deprived of their liberty (when it is against their will) in
ways indistinguishable from delinquents who become state wards. In both proceedings, children
run the risk of remaining state wards for many years. Indeed, the risk of a child remaining a state
ward longer through the child welfare system is often greater than through the juvenile delinquency
process. Sadly, many children remain state wards for their entire childhood when placed into foster
care as young children, resulting in a placement that can last 15 or 17 years. 29 Delinquency
sentences are rarely that long.
Much hinges, however, on whether one is perceiving the child in court as the accused or
the victim. I believe it is fair to say that the NACC founders called for children to be represented
in child welfare cases before serious thought was given to the purpose. As a result, a long debate
ensued over the role of counsel for children that lasted for at least thirty years, and perhaps still
lasts to this day. As Marvin Ventrell wrote in 2000, “[u]nlike any other area of practice, children’s
lawyers do not have a clear articulation or model of their role. They do not even agree oftentimes
on the fundamental duties for which they are appointed to represent the child, and that’s a system
Merril Sobie, Practice Commentaries, MCKINNEY'S CONS. LAWS OF N.Y., BOOK 29A, FAMILY CT. ACT § 353.3, at
24 See, e.g., N. Y. FAM. CT. ACT § 1052 (2018).
25 In re Gault, supra note 9, at 1443. (“The fact of the matter is that, however euphemistic the title, a ‘receiving home’
or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater
or lesser time. His world becomes ‘a building with whitewashed walls, regimented routine and institutional hours...’”)
26 Elegantly stated, Gault demanded only that lawyers “ascertain whether [there is] a defense and to prepare and submit
27 Marvin Ventrell, The Practice of Law for Children, 28 HAMLINE J. PUB. L. & POL’Y 75, 94–95 (2006).
28 Compare Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 FORDHAM L. REV.
1399 (1996), with Donald N. Duquette, Two Distinct Roles/Bright Line Test, 6 NEV. L.J. 1240 (2006).
29 “[C]hildren may spend their entire childhood cycling through various temporary foster care placements before aging
out, without ever being reunified with their families of origin or finding an adoptive home.” Melinda Atkinson, Aging
Out of Foster Care: Towards a Universal Safety Net for Former Foster Care Youth, 43 HARV. C.R.C.L. L. REV. 183,
186 (2008). “Each year approximately 20,000 youths age out of the foster care system in the United States, typically
when they reach the age of eighteen.” Id. at 187.