NCJ Number
62063
Journal
Oklahoma Law Review Volume: 29 Issue: 2 Dated: (SPRING 1976) Pages: 439-445
Date Published
1976
Length
7 pages
Annotation
THE DESIRABILITY OF ESTABLISHING A SYSTEM IN OKLAHOMA BASED ON THE MANDATORY PROVISION OF SEPARATE COUNSEL FOR MINORS IN CHILD ABUSE AND NEGLECT CASES, WHEN COURT INVOLVEMENT BEGINS, IS EXPLORED.
Abstract
THE STATE OF OKLAHOMA HAS NO SYSTEM FOR EFFECTIVE REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT HEARINGS. THE JUVENILE COMES TO COURT AS A PASSIVE BYSTANDER TO DECISIONS WHICH SERIOUSLY AFFECT HIM. ALTHOUGH THE CHILD IS THE SUBJECT OF THE ACTION, HE IS NEITHER THE PETITIONER NOR THE RESPONDENT. DESPITE THE 1967 SUPREME COURT RULING IN IN RE GAULT, SOME LOWER COURTS HAVE BEEN OVERLY RELUCTANT TO EXTEND PROCEDURAL SAFEGUARDS TO CHILD ABUSE AND NEGLECT CASES. FEW COURTS HAVE RULED DIRECTLY ON THE QUESTION. THE OKLAHOMA STATUTES GOVERNING JUVENILE COURT PROCEDURE WERE ENACTED IN THE 1968 WAKE OF THE GAULT DECISION. PATTERNED PRIMARILY ON DELINQUENCY HEARINGS, THE LAWS RECOGNIZED THE RIGHT TO COUNSEL BUT PREDICATED THE EXERCISE OF THAT RIGHT ON A REQUEST BY THE CHILD OR HIS LEGAL GUARDIAN OR ON THE DISCRETION OF THE COURT. THIS NONMANDATORY SYSTEM ALLOWS UNEVEN EXTENSION OF DUE PROCESS AT THE COURT'S DISCETION. THE CHILD IS OFTEN TOO YOUNG TO RECOGNIZE THE NEED FOR REQUESTING COUNSEL, AND PARENTS MAY WAIVE THE CHILD'S RIGHTS; PARENTS ARE THE VERY PEOPLE WHOSE FITNESS AS THE MINOR'S CARETAKER IS AT ISSUE. IT CAN BE ARGUED THAT ALL ABUSE AND NEGLECT CASES, INVOLVE A SERIOUS CONFLICT OF INTEREST BETWEEN PARENT AND CHILD. LIKEWISE, THE CHILD'S INTERESTS ARE NOT NECESSARILY ADVANCED BY THE STATE, WHOSE REPRESENTATIVES ARE OFTEN BURDENED BY HEAVY CASELOADS AND LACK OF TIME. A RECENT ANALYSIS OF AMERICAN CHILD NEGLECT LAWS REVEALED THAT 41 JURISDICTIONS RECOGNIZE A GENERAL RIGHT TO COUNSEL IN COURT PROCEEDINGS, BUT AUTOMATIC PROVISION FOR A CHILD'S OWN LAWYER IS REQUIRED IN ONLY A FEW STATES INCLUDING NEW YORK, CALIFORNIA, KANSAS, COLORADO, AND OREGON. CHILDREN'S LAWYERS ARE NEEDED TO ARTICULATE NEW PRIORITIES FOR THE COURT FROM THE CHILD'S PERSPECTIVE. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)