RIGHT OF AN ABUSED CHILD TO INDEPENDENT COUNSEL AND THE ROLE OF THE CHILD ADVOCATE IN CHILD ABUSE CASES

• NCJ Number: 62883
• Journal: Villanova Law Review Volume: 23 Issue: 3 Dated: (MARCH 1978) Pages: 521-546
• Author(s): J R REDEKER
• Date Published: 1978
• Length: 26 pages
• Corporate Author: Villanova University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE RIGHT TO INDEPENDENT COUNSEL FOR A CHILD SUSPECTED OF HAVING BEEN ABUSED IS EXAMINED, UNDER THE CHILD PROTECTIVE SERVICES LAW OF PENNSYLVANIA, ALONG WITH RELATED ISSUES.

Abstract

THE ISSUES OF WHETHER A CHILD WHO IS THE SUBJECT OF A REPORT OF SUSPECTED ABUSE MUST BE PROVIDED INDEPENDENT COUNSEL AND, IF SO, AT WHAT POINT IN THE PROCEDURE COUNSEL MUST BE PROVIDED HAVE NOT BEEN SQUARELY MET BY ANY COURT IN PENNSYLVANIA. NEVERTHELESS, VARIOUS RECENT PENNSYLVANIA COURT DECISIONS IN RELATED AREAS, THE UNMISTAKABLE TREND OF FEDERAL AND STATE COURT DECISIONS IN OTHER JURISDICTIONS, AND THE APPARENT INTENT OF THE PENNSYLVANIA LEGISLATURE IN THE CONSTRUCTION OF THE CHILD PROTECTIVE SERVICES LAW LEAVE LITTLE DOUBT THAT AN ABUSED CHILD IN PENNSYLVANIA HAS A RIGHT TO BE REPRESENTED BY INDEPENDENT COUNSEL. THE TIME WHEN THAT RIGHT ATTACHES, HOWEVER, REMAINS UNCLEAR. CHILDREN SUSPECTED OF BEING ABUSED SHOULD BE REPRESENTED BY COUNSEL AT THE EARLIEST FEASIBLE STAGE IN THE PROCEEDING, CERTAINLY BY THE TIME THE CHILD PROTECTIVE SERVICE DETERMINES THAT A REPORT OF SUSPECTED ABUSE IS 'INDICATED.' THE GUARDIAN AD LITEM SYSTEM ESTABLISHED BY LAW IS INADEQUATE, BECAUSE THE GUARDIAN AD LITEM IS NOT CHARGED WITH THE REPRESENTATION OF THE CHILD, BUT WITH THE REPRESENTATION OF THE CHILD'S 'BEST INTERESTS.' CONSEQUENTLY, THE GUARDIAN MAY SIMPLY ACT AS AN EXTENSION OF THE STATE IN ITS CAPACITY AS GUARDIAN OF THE CHILD UNDER THE DOCTRINE OF PARENS PATRIAE. THE SYSTEM FOR PROVIDING INDEPENDENT COUNSEL FOR THE CHILD SHOULD BE MONITORED TO ENSURE THAT COUNSEL IS ABLE TO GIVE A MINIMUM OF 15 TO 20 HOURS FOR AN AVERAGE CASE, AND THAT COUNSEL IS ABLE TO SECURE ADEQUATE SOCIAL AND MEDICAL EXPERTISE THROUGH COURT-ORDERED EXAMINATIONS. ATTORNEYS FOR ABUSED CHILDREN SHOULD ALSO BE ADEQUATELY TRAINED IN THE PECULIARITIES AND SUBTLETIES OF CHILD ADVOCACY PRIOR TO APPOINTMENT. FOOTNOTES ARE PROVIDED. (RCB)