2 Children’s Legal Rights Journal [Vol. 39: 1 2019]
issues in Family Court. I was assigned a guardian ad litem (GAL), who was a lawyer, 5 and I told
her my strong feelings about the substance of my parents’ dispute. After the first few appearances,
the GAL did not achieve the results I was looking for. I then started asking for something else: I
wanted to see the judge and tell her myself what was important to me. It would be about two years
before I was permitted to do so, in chambers with a court reporter, the GAL, and no one else. 6 It
would be another year or so before I was permitted to come into the courtroom, after the judge had
already made her final decisions (with which, on the merits, I agreed). 7
By the time I started at Legal Aid Society, I had it pretty firmly in my head that children
were entitled to zealous, independent representation and that this advocacy could, and in many
instances should, be in direct opposition to their parents. I had no real conception or understanding
of the foster care system, but I did enter the field prepared to fight to keep children away from their
parents if that was what my clients wanted. At that time, my approach was in one sense consistent
with where child advocacy was, and in another, somewhat of an outlier. I was consistent in thinking
that children’s interests were, to a significant degree, divested from their parents’. In the late
1990’s, New York City had close to 40,000 children in foster care, 8 and almost every child had
gotten there with the acquiescence, if not explicit support, of their assigned attorney, known then
as “law guardians.” 9 It was unusual for lawyers in my office to oppose the placement of children
into foster care, and even more rare to oppose the city’s legal intervention into families lives and
the court’s exercise of child welfare jurisdiction. 10
Where I did not fit in with many of my colleagues was in my firm belief that the role of the
child’s attorney – especially for older youth who could express themselves cogently – was to
advocate for the client’s goals, not for what the law guardian thought was best for them. When I
started advocating in accordance with my clients’ direction, I discovered that I was regularly
fighting to get kids who were already in foster care out, and to prevent those who were not yet
there from going in. It turned out that children wanted their parents to get help and support, and to
do a better job raising them, but they did not want to be separated from their families. They
certainly did not want to spend more time than they had to on the inside of what I rapidly learned
was a troubled, and at times even harmful, child welfare system. 11 I spent the first year at Legal
Aid almost exclusively handling cases that were post-disposition, representing children in
5 As I learned later, her technical job title was “law guardian.” See infra notes 9 and 15.
6 Conversations in chambers between the child and judge are common in contested custody and visitation matters in
New York State, as provided for in Lincoln v. Lincoln, 24 N. Y.2d 270 (1969).
7 The judge was Hon. Sondra Miller, a well-respected jurist who was later elected to New York State Supreme Court
and then appointed to its Appellate Division, where she served with distinction for many years. During the time I was
at Legal Aid and she was on the appeals court, I appeared before Judge Miller on an emergency motion I had filed
contemporaneously with an appeal regarding an 18-year-old client who was being ejected from foster care over his
objection. After I was appointed to the bench myself, I saw Judge Miller (who was by then retired) at a judicial training
course. I approached her and told her my story. She asked me if she had “gotten it right” on my case.
8 Press Release, Mayor’s Press Office, Mayor Giuliani Hails Child Welfare Panel Final Report That Finds ACS Has
Made “Remarkable Progress” (Dec. 7, 2000), http://www.nyc.gov/html/om/html/2000b/pr458-00.html.
9 See, e.g., Diane Somburg, Defining the Role of Law Guardian in New York State by Statute, Standards and Case
Law, 19 TOURO L. REV. 529 (2003).
10 In this regard, I have to agree with the observations set forth in Martin Guggenheim, How Children’s Lawyers Serve
State Interests, 6 NEV. L.J. 805 (2006).
11 At the time, New York City’s child welfare system had been the subject of ongoing litigation for many years. See,
e.g., NINA BERNSTEIN, THE LOST CHILDREN OF WILDER: THE EPIC STRUGGLE TO CHANGE CHILD WELFARE (2001);
Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y. 1996).