entire period of NACC’s existence, beginning even six years before the organization was founded.
I believe my experience in that court is representative of what occurred in many similar courts
across the country. Certainly, many colleagues who represent parents in these proceedings have
attested to me throughout this time that my complaints about what went on in court very closely
The courts in which I practiced regularly were characterized by qualities that should cause
concern to anyone committed to fundamental fairness, to providing the accused a timely and
meaningful opportunity to be heard, and to expecting courts to perform their vital role of being a
check on the awesome power of the executive branch. Among the most salient deficiencies was
the systemic failure to assure that parents were provided with excellent legal representation.
As much as people debate the importance of counsel for children, 50 one thing, for me, is
plain: even for those who believe it is essential that children be represented by lawyers in child
welfare proceedings, between children and parents, the parent is in greater need of a lawyer at least
through the stage of the case until the parent has been adjudicated as neglectful. Thankfully, it is
becoming commonplace today to accept the principal, as NACC does, that every child deserves to
have his or her parent represented by a well-paid lawyer with a caseload small enough to permit
him or her to provide excellent representation. 51
Children need parents to be well represented, both when the children do not want to be
separated from their families and when there is no proper legal basis to remove them from their
families. The greatest children’s lawyer in the land will be unable to defeat a petition alleging child
neglect when the unrepresented parent makes an admission to the petition. The same is true when
the represented parent makes the admission but does so because an underpaid lawyer lacked the
time to investigate the matter and persuaded the parent that it was in her interest to “cooperate”
with the agency and concede maltreatment.
And yet, it is common in too many jurisdictions in the United States for children to be
routinely assigned legal representation, even when the parents are obliged to appear
unrepresented. 52 Throughout NACC’s existence, even though most states in the United States
maintained a system by which indigent parents were entitled to court-assigned counsel, many
jurisdictions’ actual practices are appalling. In some states, parents are assigned counsel very late
in the proceeding, long after a child was placed in foster care, and too late to be in a position to
defend the case meaningfully. 53 As Vivek Sankaran recently explained, “[ i]n many jurisdictions,
50 I accept that my position on the subject – that it is not very important for children to be represented in child welfare
proceedings – particularly before the adjudication of parental unfitness has been made, has lost in the national debate
over children’s lawyers. See Martin Guggenheim, The Right to be Represented but Not Heard: Reflections on Legal
Representation for Children, 59 N. Y.U. L. REV. 76, 128–29 (1984).
51 See, e.g., NACC’s 2018 Policy Agenda which calls for children and parents to be appointed well-trained, well-resourced, independent and competent counsel at the onset of all court proceedings, including appeals. See NACC
Policy Agenda, NACC, https://www.naccchildlaw.org/page/PolicyAgenda (last visited Nov. 5, 2018).
52 The Supreme Court held in Lassister v. Department of Soc. Serv. of Durham Cty., 452 U.S. 18, 2155 (1981) that
indigent parents do not have a constitutional right to court-assigned counsel even when they risk the permanent
destruction of their parental rights. Throughout NACC’s existence, Mississippi refused to recognize a parent’s right
to counsel in child welfare proceedings.
53 Martin Guggenheim, “General Overview of Child Protection Laws in the United States,” in REPRESENTING PARENTS
IN CHILD WELFARE CASES: ADVICE AND GUIDANCE FOR FAMILY DEFENDERS 1, 3 (Martin Guggenheim & Vivek S.
Sankaran eds., 2015).