San Diego Law Review
Catch Up CAPTA: Amending CAPTA to Guarantee Children Legal Counsel in Dependency Proceedings
This Comment will address children’s constitutional right to have legal counsel in dependency proceedings. Dependency proceedings include the entire dependency process, from the moment the child is removed from the parent’s custody until the child returns home or ages out of the foster care system. This Comment will not address the constitutional rights of parents to have legal counsel or the constitutional rights of children in private custody or other family law matters. Nor will it address the type of legal representation that children should receive.
While this Comment argues that all children have a constitutional right to legal counsel in dependency proceedings, it will focus on two illustrative states. This will allow for a more detailed analysis that can apply to other states. The states that continue to deny children their due process right to legal counsel fall into one of two categories: (1) states that give courts complete discretion to assign legal counsel, and (2) states that require courts to assign legal counsel in certain circumstances but in all other circumstances allow for complete discretion. The analysis will focus on one state from each of these categories: Indiana as a category one state and Florida as a category two state.
Part II of this Comment will provide an explanation of dependency proceedings and the actors involved, as well as an explanation of the federal and state statutes that affect dependency proceedings. Part III will provide a brief overview of the history of children’s constitutional rights and will argue In re Gault set the stage for providing legal counsel for children in dependency proceedings. Part IV of this Comment will examine the United States Supreme Court cases that govern the right to counsel in civil proceedings. This section will focus on Mathews v. Eldridge and Lassiter v. Department of Social Services. Part V will argue that under the Mathews analysis, children in Indiana and Florida—and by extension, all children in dependency proceedings—are entitled to legal counsel as a matter of due process under the Fourteenth Amendment. Lastly, Part VI proposes amendments to CAPTA requiring legal counsel for all children in dependency proceedings.
Catch Up CAPTA: Amending CAPTA to Guarantee Children Legal Counsel in Dependency Proceedings,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol58/iss3/7