Focusing on Children: Providing Counsel to Children in Expedited Proceedings to Terminate Parental Rights

Blinn, Bridget A

I. Introduction

A. Children in the System: Stories to Consider

1. Younger Children

Three-year-old Frank Torres had been in state custody for two years when a judge returned him to his biological mother, a newly recovering drug addict, in April 1997. By August, Frank's mother had drowned him in the bathtub, and the authorities had charged both of Frank's parents with first-degree murder.1 The judge who returned Frank to his mother's care was a veteran of the juvenile system who claimed that she rarely lost sleep over terminating the rights of parents who could not choose their children over a drug addiction.2 But, she did not terminate Frank's mother's rights in time to save his life. The system designed to protect Frank Torres failed him. No federal statute encouraged the state to provide an attorney to represent Frank in the proceedings that led to his death.

Social Services first removed Angelo Marinda from his parents' custody when he was twelve days old after his parents injured him so badly that he was hospitalized.3 he spent most of his very short life in foster care, occasionally visiting his biological family.4 After one of these visits, his foster mother reported bruises and bumps on his head, but the visits continued.5 When Angelo was eight months old, during a visit to his biological family over Christmas, his father shook him to death.6 Angelo's foster mother had reported concerns about the unsupervised visit to a social worker.7 Angelo was never represented by his own attorney, who might have argued that a holiday visit was not worth risking this child's life.

Frank Torres and Angelo Marinda died at the hands of their biological parents, even though previous injuries inflicted by those same parents resulted in earlier removals to state custody.8 These children suffered injuries that could qualify for expedited termination of parental rights under the Adoption and Safe Families Act of 1997 (ASFA),9 Congress's latest attempt to guide the disposition of child welfare cases.10 However, even the most current federal child-welfare legislation would not entitle these children to individual attorneys in proceedings to determine whether a court should terminate the biological parents' rights.

A sixteen-month-old girl in Rhode Island is now in foster care along with her five-month-old sister." The sixteen-month-old lost her right eye to a puncture wound shortly after returning to her mother's care after an earlier stay in foster care.12 Medical records indicate that the girl had already suffered two spiral fractures on her legs when she was seven months old, and that she had a healing fracture on her left forearm.13 This little girl and her sister will go through the termination process under the provisions of ASFA, and their mother's parental rights could be terminated in an expedited process because of the cruel and abusive treatment the sixteen-month-old suffered.14 As this Note will demonstrate, Congress intended courts to focus on the safety and well-being of children like these.15 This purpose remains unrealized, however, because Congress failed to provide any incentive for states to provide a voice for children like these girls.

2. Older Children

Lucas Ciambrone seemed luckier than Frank and Angelo. The State of Florida removed him from his biological mother and her abusive boyfriend after repeated reports of the boyfriend's physical abuse of Lucas and his siblings.16 Three-year-old Lucas and his older sister found a foster home with Heather and Joe Ciambrone, who planned to adopt them.17 An agency had licensed the Ciambrones despite concerns about Heather's youth and her inability to handle children with behavioral and emotional problems.18

The agency received reports that Lucas had been locked in a room for days, fed only oatmeal, and thrown against the wall.19 But, the agency never investigated repeated complaints about the Ciambrones' parenting, nor did it complete a homestudy before the adoption took place, as required by agency policy.20 After the adoption was finalized, the Ciambrones moved to an isolated area, where they were essentially alone with the children.21 Lucas spent the last months of his life in a room with a painted-over window which was screwed shut.22 Neighbors heard him crying to be let out.23 In May 1995, Lucas's adoptive parents brought him unconscious to Manatee Memorial Hospital, claiming he had self-inflected the injuries that eventually killed him.24

The medical examiner did not believe that Lucas could have inflicted the final lethal blow to his own head or the more than 200 other injuries to his twenty-six pound body, including fractured ribs and scars on his penis.25 State prosecutors charged Joe and Heather Ciambrone with the beating and starvation of their seven-year-old adopted son.26 The state terminated their rights to their other adopted children.27 The Ciambrones have appealed those decisions.28

Neither Lucas nor his siblings had the right to an attorney during the proceedings that terminated their biological parents' rights, nor did Lucas's siblings have that right during the proceedings to terminate the Ciambrones' parental rights. Lucas's siblings could each qualify under ASFA's provision that expedites proceedings to terminate parental rights.29 Congress's intention in passing ASFA was that Lucas's siblings would not suffer the same fate he did, and that their health and safety would be the paramount concern in the expedited proceeding to terminate the Ciambrones' parental rights.30 Each of Lucas's siblings might have a voice in the termination proceedings if ASFA contained a provision providing financial incentives to states to provide counsel to children in these proceedings.

B. Problems and Solutions: A Roadmap

The dual dangers of risking harm to a child and unnecessarily breaking up a family unit provoke strong sentiments in the public and in the legislatures. Choosing between the two can be an agonizing process for decision makers.31 Congress reacts to stories like those above by shifting statutory policy from reunification to termination and back again in an attempt to create a one-size-fits-all solution to the complex problems that children face in abusive homes and in the system.32 Reunification focuses on parental rights, emphasizing values of family privacy, parental autonomy, and the importance of the family of origin, while proceedings to terminate parental rights focus on rescuing children from dangerous and irresponsible parents.33 This Note demonstrates how Congress's latest legislation on adoption attempts to balance the disparate goals of reunification and termination. This balance includes a partial shift from the traditional focus on parental rights to a greater focus on protecting children in circumstances in which they face physical danger at their parents' hands.34 This Note contends that Congress's change in focus-to protection of children in extremely dangerous circumstances-is incomplete if states fail to provide counsel to advocate the children's interests, giving their stories a voice in proceedings to terminate parental rights.35

Part II of this Note examines ASFA and the background of child welfare law that informed congressional policymaking in passing that legislation. Part II also describes Congress's intent in passing ASFA and argues that the legislation falls short of those goals. Part III notes the inability of legislation to meet every unique circumstance and provides a solution: offering financial incentives to states to provide counsel for children in expedited proceedings to terminate parental rights. This Note argues that providing children with their own attorney in expedited proceedings to terminate parental rights will better equip the system to cope with each individual child's unique situation.

This Note contends that in order to tailor the system's response to a child's individual circumstances, Congress should amend ASFA to encourage states to provide legal representation for children in expedited proceedings to terminate parental rights.36 As the stories above demonstrate, not every family is safe for reunification, and not every abused child is best served by adoption. Each child's circumstances and options are unique, and no one-size-fits-all solution, whether it be reunification or termination, can provide every child with justice. Congress has previously used the power of the purse37 to encourage states to conform to federal statutes affecting family law,38 and this Note argues that ASFA should be amended to similarly use financial incentives for states to provide counsel to children in expedited termination cases.

II. Background

States initially developed adoption law to cope with the problems of families who could not, or would not, raise their own offspring. As the states developed procedures for removing children from dangerous or neglectful families, the Supreme Court applied constitutional principles to protect the right of parents to raise their own children. The resulting system inadequately protected children in abusive situations, so Congress introduced federal regulations regarding child welfare in an attempt to provide protection for all children in the United States. This section will trace the background of modern federal child welfare law as it responded to shortcomings in state law. It will then describe Supreme Court decisions that constitutionalized the rights of parents without balancing the rights of children.

A. States ' Development of Early Child Welfare Law

As a branch of family law, adoption practices-including proceedings to terminate parental rights39-fall within the traditional province of a state's police power.40 Early development of child welfare law in the United States grew out of practical efforts by states to handle the problem of parents who could not adequately raise their own children. American adoption law finds its roots in ancient Roman law, which dictated that new families incorporate adoptees as full members of their new families and that adoptees completely sever ties with their biological families.41 Roman adoption emphasized the idea that a person could maintain a connection to only one family.42 Early state statutes followed the Roman tradition and provided that once a court approved an adoption, the adopted child effectively became the child of the adoptive parents, and the decree of adoption deprived the biological parents of all legal rights and obligations to the adopted child.43

Adoption gradually shifted from functioning as a service for infertile couples to focusing on child welfare, as states struggled to cope with older, harder-to-place children.44 Until the mid-nineteenth century, most adoptions involved placing an infant with an infertile couple who could support that infant.45 The process involved voluntary placement of a child by its biological family, not adversarial proceedings to remove children from their parents' care.46 The growth of children's aid societies, which removed children from poor houses and orphanages and placed them in families, altered the typical situation in which an adoption took place because the societies removed older abused or neglected children from their parents' care.47 Unlike early adoption laws, which had simply standardized a mutually consensual transfer of a child from one family to another,48 these aid societies often removed children against their parents' will.49

From laws about infant adoption to newly forming child welfare policies, states struggled to cope with the realities of children in different kinds of family circumstances. By the 1950s, states had developed adoption practices that satisfied at least one legal scholar as complete and satisfactory:

The questions of who may adopt and who may be adopted, when the consent of the child is necessary and when the consent of others may be necessary, have been litigated and settled in most jurisdictions. The effect of adoption and the problem of inheritance by and from the adopted child are, in most places, no longer subject to doubt.50

However, those "complete and satisfactory" adoption laws did not focus on the needs and interests of children.

Adoption cannot take place until a court terminates parental rights.51 Abuse and neglect proceedings often take place in different courts from terminations of parental rights.52 Some states' laws recognize that justice requires that children have their own counsel in certain proceedings, but the laws limit those provisions to specific circumstances.53 However, many states do not provide counsel for children in proceedings to terminate parental rights.54 This Note argues that without an attorney to focus the courts' attention on the interests of children, the system fails to protect children adequately.

B. case Law History on Children 's Rights in the System

While state law developed around child welfare and adoption, the Supreme Court shaped the law surrounding termination of parental rights through its constitutionalization of parental rights and its limited recognition of children's rights. States developed statutes allowing for removal of children from unfit parents. However, the Supreme Court limited the states' efforts to protect children by emphasizing and enforcing the rights of parents to raise their own children.

1. The Supreme Court 's Historical Focus on Parental Rights

Early American law defining the relationship between parents and children emphasized the idea of ownership.55 Before adoption statutes developed, American fathers exercised ownership over their children and "could indenture their children, collect their wages or bequeath them by will."56 Although American family law now operates on a presumption that parents will promote their children's best interests57 and no longer accepts the idea of ownership of another person,58 Supreme Court cases in family law continue to use property concepts to define the rights of parents in their children.59

The Supreme Court decided two seminal cases defining parental rights to the care, custody, and control of their children in the first half of the twentieth century. The Court established in Meyer v. Nebraska60 that Fourteenth Amendment due process protects liberty interests including the right to establish a home and bring up children.61 The Court followed and furthered that holding in Pierce v. Society of Sisters,62 declaring that "the child is not the mere creature of the state; those who nurture him and direct him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."63 Meyer and Pierce both focused on the parental right to control and educate children, and declined to recognize a child's liberty interest in education, acquiring knowledge, or pursuing intellectual development.64

This doctrine of parental control has become a cornerstone of American family law. The Supreme Court clearly summarized its position: "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."65 The Supreme Court's strict constitutional requirements in proceedings to terminate those rights evidences the importance of parental rights in their children. As the Court established in Santosky v. Kramer?6 when the state threatens the constitutional rights of parents to raise their children-even when the parents' violation of the "high duty" to care for those children has motivated state action-the state must meet a "clear and convincing" evidence standard before severing the parent/child relationship through a termination of parental rights.67

Although the proceeding in Santosky was premised on the neglect of the Santosky children, the Santosky Court focused on the rights of the natural parent and those of the state.68 The Court declared that the fact-finding hearing in a proceeding to terminate parental rights adjudicates only the rights of the states and those of the parents, specifically rejecting any balancing of the child's interest in a normal family home with the parents' interest in raising the child.69 The New York courts had terminated the Santoskys' parental rights after balancing the rights of the child and the rights of the natural parent.70 The Supreme Court characterized New York's balancing theory as assuming that termination of parents' rights will always benefit the child and faulted the New York courts for their failure to recognize that parents and the child share an interest in avoiding erroneous termination.71 Notably, Santosky involved a termination of parental rights based on neglect rather than on abuse.72 Had the Santoskys physically abused or murdered their children, the Court might have been more willing to recognize a divergence in the interests of the children and their parents.73

The Court's intense focus on parents rather than children is apparent in cases in which two potential parents present conflicting claims to the same child. The husband of a child's mother and that child's natural father presented such conflicting claims in Michael H. v. Gerald D.74 In Michael H., the Court focused on the rights of those claiming parenthood rather than on the rights of Victoria, the child herself.75 The Court refused to consider visitation between Victoria and her natural father because it found that the California statute established one father for Victoria, and legally she could not have two fathers.76

One scholar summarizes the Supreme Court's perspective as a presumption that "the child's best interest subsists within the best interest of the parent. "77 Professor O'Brien criticizes the Court for framing its inquiry in such a way that the child never enters the debate.78 From Meyer and Pierce to Santosky and Michael H., the Court remains intensely focused on the rights of parents, sheltered by the presumption that parents will protect their children and act in their children's best interests. This presumption does not require consideration of the best interests of the child, and it remains the controlling principle in proceedings to terminate parental rights.79 This complete focus on the parents fails to protect the interests of the most vulnerable people affected by those proceedings: the children.

2. Limited Constitutional Recognition of Children as Persons

Under some circumstances, the Supreme Court has recognized children as persons under the Constitution. This recognition brings with it some due process rights, but the Court has limited the circumstances in which due process rights apply to children. Children have far less protection than their parents under the Constitution.80

a. Declaration of Some Rights for Children

The Supreme Court did not begin to treat children as persons for Fourteenth Amendment due process purposes until the mid-1960s. In In re Gault,8I the Court required due process, including the right to an attorney, in juvenile delinquency proceedings and declared that childhood is not a sufficient excuse for courts to deny children certain rights.82 In determining the goals of the juvenile justice system, the Court focused on the historical background of the juvenile court. Child welfare reformers created the juvenile court system to determine the problem with the accused delinquent, to discover how the problem arose, and to decide what society should do to save the delinquent from a downward career.83 Because the goal was not determination of guilt or innocence, but rather the child's salvation from a criminal career, the "rules of criminal procedure [were] inapplicable."84

The Supreme Court recognized that the reality of the juvenile court system failed to match the rhetoric of its conception.85 Rather than the careful, compassionate treatment that the reformers had visualized, the juvenile system, with its absence of substantive standards, resulted in arbitrariness and deprived juveniles of fundamental rights without due process.86 Emphasizing the severe consequences of a delinquency proceeding,87 the Court required states to provide due process to juveniles, including the representation of counsel "at every step in the proceedings against him."88

b. Limitations on Children 's Fourteenth Amendment Rights

Although the Gault Court had granted children some rights under the Fourteenth Amendment, it refused to extend those rights far beyond the context of delinquency proceedings and quickly returned to a focus on parental rights.89 DeShaney v. Winnebago County Department of Social Services90 demonstrates the Court's fixation on the parental perspective in child welfare cases. In DeShaney, the Court refused to provide relief against the state for a child whose record was full of reported abuse, even though the child ultimately suffered severe brain damage at his father's hands.91 The state of Wisconsin removed Joshua DeShaney from his father's care after an abusive episode landed the boy in the hospital, but it quickly placed him back with his father, who inflicted the severe brain damage.92 The Court continued its singular focus on parental rights, noting that had Wisconsin acted earlier, it might have moved too soon to remove Joshua from his father's custody and violated the father's due process rights by improperly intruding into the parent-child relationship.93 That the state removed Joshua too late and too impermanently, as evidenced by his severe injury, did not sway the majority.

The Court declared that the Due Process Clause of the Fourteenth Amendment did not require the state to protect the life, liberty, or property of its citizens from private actors.94 Therefore, the Court determined that a state could not be held liable under the Clause for injuries the state could have prevented.95 Returning four-year-old Joshua DeShaney to his father's custody, according to the Court, "placed him in no worse position than that in which he would have been had it not acted at all."96

Joshua's case differed from Gerald Gault's because it occurred in a different context in the court system: Joshua's was a child protective proceeding, and Gerald's was a delinquency proceeding. However, the goal of both systems-the juvenile delinquency proceeding underlying Gault and the child protection proceeding underlying DeShaney-was to help the child.97 Depending on the circumstances of a child's life, the effects of both types of proceedings "are indistinguishable and equally traumatic."98 The description in Gault of the impact on a child in juvenile detention could easily apply to a child placed in foster care. The physical environment and primary caretakers in each child's world are dramatically altered in both situations.99

Professor Guggenheim notes that the rationale of Gault logically extends to child protective proceedings, including the right to counsel.100 Notably, Joshua DeShaney did not have his own attorney when the state initially removed him from his father's home, but he did have an attorney when he and his mother sued the state for allowing him to remain in his father's home.101 That attorney provided the Court with Joshua's story, related from Joshua's perspective, and that advocacy focused some of the Justices on his interests. Had the government provided Joshua with counsel earlier, the attorney could have presented Joshua's entire story and interests before the court that returned him to his father's custody, possibly averting his tragedy. The sad circumstances of Joshua's life were far more relevant to the decision to replace him in his father's abusive care than they were to the Supreme Court's determination of whether he had a cause of action against the State of Wisconsin. An attorney did not present Joshua's interests to the state court, yet an effective presentation of those interests before the Supreme Court prompted two strong dissents.

Justice Brennan's dissent argued that because all child abuse reports filtered to the same Department of Social Services (DSS) that refused to act on Joshua's behalf, the State of Wisconsin effectively confined Joshua to the four walls of his father's abusive home.102 The existence of Wisconsin's child-protection program, and its failure to carry out its duties, kept other sources of aid from reaching him.103 The state effectively isolated Joshua from any source of aid other than DSS, then failed to provide relief through that agency.

Joshua's story impacted Justice Blackmun's dissent as well. Justice Blackmun wrote the majority position in Santosky, which focused narrowly on parental rights,104 but in DeShaney he advocated a decision that would comport with the "dictates of fundamental justice."105 In this case, because he focused on Joshua's position of defenselessness, Justice Blackmun would have preferred a decision that "recognize[d] that compassion need not be exiled from the province of judging."106 Justice Blackmun's focus was on the horrific circumstances of Joshua's position,107 which was finally before the Court because Joshua then had a lawyer to tell his story, and he believed that Joshua should have had his day in court.108

The current rhetoric informing a court's determination of termination of parental rights limits the power of children's stories by focusing on the interests of parents.109 Focus on the parents limits the impact of children's stories on the remedy for the situation that brought them to court in the first place.110 Often the child's story is not found in the majority opinion, but in the dissent, which is arguing for a change in the law's focus.111 Justice Blackmun's dissent in DeShaney is a good example of the power a child's story can have over a judge's decision.112 Unfortunately for Joshua, his story was not presented by his own attorney at the proceeding that returned him to his father's care.

Limitations on the child's due process rights are not exclusive to child protection cases. Twelve years before DeShaney, the Court laid out other limitations in Parham v. J.R.113 Whether involuntary confinement occurs in a juvenile detention center or a mental hospital, its primary goal is identical to that of the juvenile delinquency and child protective systems: to help the child.114 Despite these similarities, in Parham the Court refused to require formal or quasi-formal hearings under the Due Process Clause for minors committed to mental institutions by their parents or guardians.115 Gault's protection of children in juvenile delinquency proceedings did not extend to commitment. The Court declared that the state did not violate due process through the use of "informal traditional medical investigative techniques."116 It rejected a formalized hearing requirement in part because it believed such a hearing would endanger the parent-child relationship.117 The Court feared the adversarial nature of such a hearing, characterizing it as pitting parents against their children in determining whether the parents' motivation is consistent with the child's interests.118

Justice Brennan provided an insightful rationale for focusing on children's interests in his Parham dissent.119 He rejected the idea that parental authority and family autonomy must bar assertions of children's rights.120 When family autonomy already has been fractured, he noted, the interest in avoiding discord is less significant.121 Justice Brennan's perspective that children's interests deserve more focus is compelling in light of ASFA's expedited termination proceedings, in which not only is family autonomy broken, but parents have harshly abused their power.122 Justice Brennan explained that especially in cases in which a break in family autonomy has already occurred, a child has a need for an independent advocate to protect his rights.123 A clear division of interests emerges in these situations.124

C. Criticisms of the Failure to Focus on Children in Court Decisions

Supreme Court Justices are not the only critics of the Court's focus on parents in child welfare cases. Other critics have noted that the traditional legal status of children as private property, which the Supreme Court constitutionalized in Meyer and Pierce, distorts family law by refusing to recognize and validate children as individuals with their own interests.125 Critics argue that focus on family privacy and parental rights results in a child's "voicelessness, objectification, and isolation from the community."126 One prominent scholar argues that fairness and realism require a child-centered evaluation of power over children because children are powerless and adults are not.127 The powerlessness of children in the system would be mitigated by providing them with an attorney, as Part II.B.2 of this Note explains.

Current law ignores the common sense idea that justice in intergenerational relationships requires respect for children rather than objectification of children.128 Children are alternately treated as property or as persons depending on the convenience of the adults who exercise power over them, a treatment reminiscent of slavery.129 Americans reject the idea of ownership of human beings,130 yet children are often relegated to the status of property. The legal issues defined in current family law cases, which focus on parental rights, shape remedies in ways that do not match the reality of children's lives because they fail to account for the experiences and circumstances of children.131 Joshua DeShaney's reality was entrapment in an abusive, dangerous home, yet the Court applauded the State of Wisconsin for refraining from removing Joshua too early, an action that would have threatened his father's constitutional rights.132

D. Federal Response: Focus on Children

The federal legislative response to child protection has been far more child-centered than the Supreme Court's response. Legislative action shows a gradual shift toward recognizing that children's interests differ from their parents' interests when severe abuse is implicated and that no single solution can solve every problem. Far more than the Supreme Court, Congress has focused on the child as the center of child protection cases, and it has encouraged states to follow suit.

1. Growing Attention to Child Abuse: CAPTA

The problem of child abuse drew congressional attention when the Senate Subcommittee on Children and Youth investigated the issue after the publication of Dr. Henry Kempe's 1962 study of battered child syndrome.133 Committee members visited hospitals, met the young victims of abuse, and found their stories appalling.134 As a result, the federal government mandated the reporting of child abuse in the Child Abuse Prevention and Treatment Act of 1973 (CAPTA),135 six years after the Gault Court's decision that children were persons for some purposes under the Constitution. CAPTA tied federal funds for child welfare to a requirement that states set up their own programs for mandatory reporting of child abuse.136 It required reporting, investigation, cooperation of law enforcement officials, and confidentiality of record keeping.137

As CAPTA's reporting programs began to take effect, and states received more reports of child abuse, states removed more children from their biological parents' homes.138 Foster care was the primary solution to the states' problem of caring for their new wards.139 Federal law reporting requirements also made it easier to track children once they entered foster care.140

State systems had been based on the model of infant adoption, which placed children immediately into new families with the consent of their biological families.141 The systems were not equipped to handle the influx of abused children into their foster care programs.142 Consequently, children placed in foster care frequently spent years in the system shifting from foster home to foster home, a phenomenon experts call "foster care drift."143 An influential book published in the mid-1970s harshly criticized the removal of children from their biological parents and emphasized the importance of attachment in child development.144 Beyond the Best Interests of the Child publicized the theory of psychological parenthood and the importance of attachment,145 two interests that are damaged when children are removed from their homes. Focused on children's interests, Congress became concerned about states unnecessarily removing children from their homes. As a result, Congress passed legislation to encourage reunification efforts.146 The federal pendulum was set in motion, swinging from a focus on reunification to a focus on termination of parental rights to allow for adoptions. Both reunification and termination grew from the desire to help children, but neither could help all children in all abusive homes.

2. Increased Emphasis on Reunification: AACWA

Seven years after CAPTA and three years after Parham, Congress passed the Adoption Assistance and Child Welfare Act of 1980 (AACWA).147 In an effort to prevent unnecessary family break-ups, Congress required states to make "reasonable efforts" to prevent removal of children from their parents' homes or to reunite children temporarily removed from their parents and emphasized the importance of maintaining the integrity of the parent-child relationship.148 Although the law also provided adoption subsidies for those children whose families could not achieve reunification, the states' implementation of AACWA primarily focused on the reasonable efforts requirement.149 AACWA provided that whenever a foster care placement was pending, the state had to make reasonable efforts to prevent that placement.150 AACWA included financial incentives for states to emphasize reunification.151 As a consequence of the financial incentives, family preservation efforts flourished, and the number of foster care placements appeared to drop.152 But less than a decade after the legislation's enactment, the number of children entering foster care exploded,153 demonstrating that reunification efforts had not solved the problem of child welfare.

Congress's demand for reunification had not adequately focused state agencies on the needs of the children in their care. As stories like Richard Gelles's The Book of David154 hit the newspapers and Joshua DeShaney's case made its way to the Supreme Court, it became apparent to the public and to Congress that many families were simply not safe for family preservation or for reunification efforts.155 The Book of David told the story of a boy whom the state returned to his mother's abusive home, where his mother suffocated him.156 The deaths of children in their homes occurring after child welfare agencies had received notice of their dangerous situations raised the urgency of reform efforts.157 States interpreted AACWA as requiring family preservation at all costs, regardless of the nature of the maltreatment or the family involved.158 Under these interpretations of AACWA, children still were not the focus of the system.

3. Specific Protection for Some Abused Children: ASFA

In response to public outrage over the state of the foster care system,159 Congress passed the Adoption and Safe Families Act of 1997 (ASFA).160 One of Congress's primary objectives in ASFA was to clarify that the health and safety of the child would be the primary focus in child welfare cases, outweighing the reasonable efforts requirement.161 Representative Deborah Pryce announced that ASFA would elevate children's rights in order to prevent marginalizing their health and safety.162 With enormous bipartisan support, the legislation easily passed both the House and Senate.163 The new law garnered support in the media as well.164

ASFA's stated purpose is "to promote the adoption of children in foster care."165 Congress provided exceptions to AACWA's reasonable efforts requirements when certain aggravated circumstances are present.166 The swift timetable for commencement of termination proceedings illustrates the legislature's preference for adoption. It also demonstrates that the pendulum between reunification and termination is moving again.167 Under ASFA, if the state decides that a case does not require reasonable efforts for reunification, the state must hold a permanency hearing168 within thirty days of that determination, and the state must make reasonable efforts to place that child in a timely manner in accordance with the resulting permanency plan.169 Even when ASFA requires reasonable efforts to reunify the family, it allows concurrent efforts to place the child for adoption or with a legal guardian, reflecting Congressional recognition of the child's interest in timely permanency.170 Preparing children for both reunification and adoption, as mandated by ASFA, creates conflicting initiatives for the child welfare organizations responsible for their placement.171 Unlike past legislation, it encourages agencies to focus on the child's need for permanency.

Under ASFA, the state generally must initiate proceedings to terminate parental rights-without reasonable efforts to reunite the family-if a court finds that the parent murdered one of the child's siblings or otherwise assisted in such a murder.172 Additionally, if the parent has committed a felony assault that resulted in serious bodily injury to the child or one of its siblings, the state generally must initiate termination proceedings.173 The circumstances triggering this expedited filing for termination of parental rights involve situations in which the child's life and health are in immediate, obvious danger. In those circumstances, the child's interests overcome the traditional focus on parents' rights. Each of the children in the stories at the beginning of this Note could meet ASFA's criteria for expedited termination of parental rights.174 In those cases, the focus of the statute should have been on the child's interests rather than the traditional parental rights of care, custody, and control of the child.175

The provisions for expedited termination proceedings in ASFA make sense on their surface. Congress designed these provisions to protect children in severe physical danger at their parents' hands.176 Importantly, the statute provides some flexibility by requiring states to begin proceedings to terminate parental rights in severely dangerous circumstances unless the state can demonstrate a compelling reason why those proceedings should not occur.177 However, as the next Part demonstrates, termination of parental rights is not always the best solution to an abused child's situation. Providing the child with his own attorney would help to ensure that justice is served in expedited termination proceedings by presenting the child's perspective and advocating for his individual interests.

III. Repairing the Current System

A. The Problem: Incomplete Realization of Congressional Intent

Despite Congress's intent that the child's well-being be the focus of the child welfare system, ASFA fails to provide a voice for the child to explain and protect the child's interest once the system begins deciding that child's fate.178 Once the state begins proceedings to terminate parental rights, a court still must make a determination regarding the fate of the individual child before it. Unlike the Supreme Court in Santosky and Parham, Congress recognized that the child's interests do diverge from the parents' interests, especially in the circumstances that lead to an expedited termination proceeding.179 However, in ASFA, it failed to provide a voice dedicated solely to advocating for the children's interests it sought to protect. The children protected by ASFA still face the problem Joshua DeShaney faced: No one presents the story and circumstances on which the court should focus and therefore the court never focuses on that vital perspective. Congress's provisions in ASFA do not adequately implement the intended goal of the statute that the system focus on the children within it.

1. Specific Stories of Children

The discussion on the floor of both houses of Congress during the debates on ASFA demonstrates members' awareness of the stories of individual children in the system and their strong desire to help them.180 Constant references to newspaper stories and headlines pepper the legislative record of the House and Senate alike,181 demonstrating Congress's heightened focus on high profile failures of the system. Beyond newspaper headlines, members of Congress related stories of children with whom they themselves had contact, including an eighteen-month-old boy not yet free for adoption by his foster mother,182 a two-year-old girl removed from her biological family who spent the next sixteen years in the foster care system,183 a young man who had been in 130 foster homes by age fourteen while the state tried to reunify his family,184 and a five-year-old removed from his abusive father's custody who would return to the father's custody without a showing of extraordinary circumstances to compel termination of the father's rights.185 As one member of Congress noted, the goal of ASFA was not merely to react to these situations but to prevent them from recurring.186

2. Rapid Removal from Foster Care to Permanent Homes

When children lose their parents through a termination proceeding, Congress expects that those children will be placed in loving, permanent, adoptive homes.187 Congress's motivation stems largely from its members' knowledge that such a large number of children are in the foster care system, many of them waiting for termination of parental rights to allow for adoption.188 However, when the state terminates parental rights, not all children start a new life because of a shortage of adoptive homes.189 Hard-to-place children are particularly susceptible to becoming legal orphans.190 ASFA has initially increased the numbers of adoptions, but no research is available to accurately predict whether that result will be permanent.191 Like the legislation before it,192 ASFA also has increased the number of children in foster care.193 Congress slightly tailored the one-size-fits-all approach to fit some extreme circumstances, but even that tailoring will not guarantee all children a good outcome. Without a voice for the individual experience and circumstances of each child, and with the accompanying realization that not every termination of parental rights results in adoption, relevant court proceedings will often thwart the purposes of ASFA.

3. Balance Between Conflicting Values

An important focus of Congress in passing ASFA was achieving balance between conflicting values in the child welfare system. Congress wanted to resolve the primary conflict between the rights of parents and those of children so that children received some protection.194 Similarly, the need to balance the goal of keeping families intact with that of allowing children to find permanent, loving homes informed Congress's perspective on the bill.195 Another balance Congress sought to steady was parental rights versus children's safety.196 These balances cannot become a reality when a family enters a courtroom, and everyone but the child has an attorney. An attorney is vital to presentation of the child's individual interests, as this Note discusses in Part III.B.2 below.197 Courts will be unable properly to balance the competing interests in child protection cases if they do not hear the stories of everyone involved. If children do not have their own attorneys, the scales of justice will not register or weigh their interests in the balance.

4. Remaining Holes in ASFA 's Plan

Despite the Congress's focus on the unique situations of individual children, legislators could not draft legislation that covered every story. With ASFA, Congress began working toward eliminating the chance that a child would return to a home where death or severe abuse would be likely to occur. However, in reacting to protect a child from an abusive parent or parents, courts may wrench a child from other important positive adult influences, especially in domestic violence situations in which only one parent is abusive.198 One critic has noted that the statutory language encourages states to hold battered women legally liable for failure to protect their children and then allows states to terminate parental rights on those grounds.199 Although the child may want to stay with the nonabusive parent and may feel emotionally secure in that parent's presence, the system can remove the child because of the abuse of the other parent.200 Lucas Ciambrone is an example of this kind of termination: His mother's boyfriend abused him and she lost her parental rights.201 Some children in this circumstance would be better served by remaining with the nonabusive parent, although others might remain in danger for various reasons, such as when that parent is chronically unable to choose nonabusive partners.202 In these complex circumstances, an attorney for the child would help the court to navigate the intricacy of that child's life to achieve the best individual result.203

Beyond the stories of older, hard-to-place children or children from homes with domestic violence are countless other individual circumstances informing the best interests of every child entering the child welfare system. No law can perfectly predetermine the best outcome for each child, but the law can provide each child with the means to bring all the unique circumstances and factors of that child's life to the court's attention as it makes its determination of the child's future. The unique circumstances of each individual child's life do not come into every courtroom through the parents' attorney or the state's attorney; the child's own perspective can only come from his own representative, as the next Part demonstrates.204

B. The Solution: Providing Children 's Counsel

After ASFA, children are still outsiders to the system that decides their fate and, therefore, they are still marginalized, powerless, and voiceless.205 Congress intended that ASFA would focus the system on the interests of children.206 For that goal to become a reality, children's stories must enter the courtroom as a part of the cases that decide their ultimate fate.

The Supreme Court has insisted that in proceedings to terminate parental rights, the interests of children are protected by the child's parents.207 According to the Court, only after a court has declared the parent unfit can the child's interest diverge from the parents' .208 As the next section demonstrates, these views of a child's interests are too narrowly drawn and fail to reflect the truly diverse interests of the three sets of players in a proceeding to terminate parental rights,

1. Conflict Between Interests of the State, Parents, and Children

ASFA does not address the need for separate legal counsel for children in proceedings to expedite parental rights, and neither most states nor the Supreme Court has addressed that need. Cases like Santosky, with its errant presumption that all children share an interest with their parents in avoiding termination, continue to be the norm for disposition of these cases. Yet, the interests of the players in a proceeding to terminate parental rights are far more diverse than the Court recognized. An attorney's duty is to his client, not to interested third parties.209 Therefore, each set of players in one of these proceedings requires its own attorney to present its interests effectively to the court.210

a. Interests of Parents and the State

The most obvious state interest in a proceeding to terminate parental rights is the duty to protect citizens who cannot protect themselves, the traditional role of parens patriae.211 In termination proceedings, however, states also are trying to comply with federal statutes like ASFA, which encourage counsel for the state to recommend one of the two traditional options (reunification or termination) emphasized by Congress. Because of Congress's focus in ASFA on quick timing and permanent placement, the state's counsel may not adequately advocate all of the child's interests in the proceeding.212 Counsel for the state has the state as its client, not the child. State's counsel also could focus on termination because it would protect interests other than the child's welfare, such as access to the adoption subsidies contained within ASFA.213 These subsidies provide significant financial benefits to the states.214

An attorney representing the parents also is ill-suited to represent a child's interests in a proceeding to terminate parental rights. Parental interests in proceedings to terminate parental rights enjoy ample attention and explanation in Supreme Court decisions regarding child welfare cases.215 The Court has protected the "sacred private interest" of parents to the care, custody and nurture of their children.216 When the state initiates proceedings to terminate parental rights, it threatens the constitutional right of parents to choose the education and upbringing of their children.217 However, the Supreme Court never has held that parents have the right to treat their children in the violently abusive manner described by ASFA as warranting an expedited proceeding to terminate parental rights. In expedited termination proceedings, the parents have threatened the child's physical welfare through actions that can no longer be characterized as being in the child's best interest.218 Parents who have been charged with violent and life-threatening behavior toward their children logically cannot be relied on to protect the child's interests in a proceeding to terminate parental rights.219 Additionally, parents are not guaranteed the right to counsel in proceedings to terminate parental rights.220 If the parent does not have an attorney, then the only party represented by counsel is the state and the child's interests are even less likely to be fully represented.

b. Interests of Children

A child's due process liberty interests in family life should exist separately from their parents.221 The Constitution, especially the Bill of Rights, protects individual liberty, not group or family liberty.222 The Constitution does protect liberty rights belonging to a child as a person under the Fourteenth Amendment.223

The Supreme Court found that the Constitution does not necessarily require counsel for parents224 and it might not do so for children, but Congress can create incentives for states to provide counsel despite the lack of a constitutional requirement. In a proceeding to terminate parental rights, the child's liberty interests in his family relationship are threatened, and the child's best interests should be part of the court's primary focus. These interests may be very different from those of the parent or the state. One of the child's primary interests is freedom from severe physical abuse or impending death, as recognized by Congress's special treatment of these circumstances in ASFA.225 The subjects of expedited proceedings to terminate parental rights are children whose parents have not only failed to protect their interests, but who themselves have proved to be a threat to the child's physical safety.

Additionally, the child has an interest in the quick determination of his fate by the court.226 Children's perception of time differs from adults'.227 Longer proceedings result in greater harm to the children involved.228 Although Congress has mandated that the child's best interests be paramount,229 the Supreme Court still requires the state to meet a clear and convincing standard of proof before termination.230 This standard of proof can necessitate an extended period of time for adjudication, during which the child is suffering irreparable harm and trauma.231 ASFA's supporters were aware of the damage long proceedings could inflict and of the extreme vulnerability of the children their legislation sought to protect.232 Experts have criticized that, absent any procedural or other delays by attorneys, proceedings to terminate parental rights take too long and are traumatic to children.233 During the termination proceeding, the child is in foster care, which can approximate abuse in its harmful effects upon the child because of the uncertainty it entails.234 Timing also may impact whether the child finds a new adoptive home because the older a child is, the worse that child's chances are of being adopted.235 Included in the child's interest in speedy determination of his future is an interest that the proceedings be free from errors that could encourage an appeal that would drag out the uncertainty of his position.236

Closely tied to the child's need for rapid judicial determination of his future is the need for permanence in a secure and stable home.237 Childhood experiences shape the child's future, including school performance, criminal activity, social development, and employment capability.238 Children with long experiences in the foster care system lack the essentials of a healthy home environment, such as continuity and stable relationships with caring adults.239 If a child fails to establish a secure, bonded relationship during childhood, that child is at risk for difficulty in forming relationships for the rest of that child's life.240 For children who risk returning to the foster care system because reunification efforts may fail, the goals behind permanence might never be realized.241 A child's connection to his parents is not easily transferable.242 Thus a court's determination of who a child's parents should be is particularly important, so that bonding can occur as soon as possible.243 The younger the child, the more important a permanent decision is, so the benefit of permanent decisions quickly outweigh the benefits of waiting for a better option that may never anse.244

Finally, a child's interests may include retaining a connection to that child's biological parents or others who have had a positive role in the child's life.245 Terminations can result in painful permanent separation from family members, school, and the surrounding community.246 Children with emotional attachments to a non-abusive parent and/or siblings, as well as to other important adults like foster parents, have an interest in guarding those relationships throughout the proceeding.247

2. Importance of the Child's Attorney

The unique set of circumstances in an expedited proceeding to terminate parental rights, in which a parent has behaved violently toward the child, draws the contrast between the parents' and the child's interests into sharp relief. As discussed above, the child has interests separate from both the parents' and the state's and needs representation presenting a best interests argument and the child's perspective on the possibilities for that child's future. Professor Richard Gelles notes that the concept of family reunification is so entrenched in child welfare law that nothing can change until judges and social workers change their focus to the child.248

As discussed above, Congress wanted the focus to be on the child in child welfare proceedings.249 However, without an attorney dedicated to the child as the client, a focus on the child is unlikely to occur because vital information will not be presented to the court.250 The Supreme Court itself has clearly articulated the importance of counsel: "[T]he lawyer occupies a critical position in our legal system .... Frequently in child welfare dispositions, the state's decision is based mostly on the good intentions of under-informed and over-worked players."251 Children are still outsiders to the system, and therefore they are still marginalized, powerless, and voiceless.252 Professor Woodhouse argues that the best interests of the child standard should require a closer look at the interests of the child rather than substitution of the interests of adults.253 For that goal to become a reality, children's stories must enter the courtroom as part of the cases that decide their ultimate fate.

Although states require counsel for children in a variety of court settings, rarely do they require such representation in proceedings to terminate parental rights, even though these proceedings have the greatest long-term consequences.254 Courts disservice children when they fail to attach legal significance to the children's experiences.255 cases like Santosky, Parham, and DeShaney reflect the types of stories Congress reacted to in passing ASFA, but a mismatch remains between those stories and the current reality of child welfare law. The presence of a lawyer speaking on the child's behalf is vital to the creation of the necessary link between reality and disposition of children's cases.

Older children are capable of explaining those experiences to a court and assisting in finding the best solution to the problem of their future care.256 The rights of parents to their children are based on the rebuttable presumption of their constitutional right to care, custody and control of their children,257 which ASFA leaves in the hands of the state to rebut.258 Providing counsel for the older child would provide that child with the opportunity to rebut the presumption of the parents' rights, based on the child's interests rather than, or in addition to, the state's interests.259 Many children know what their experience has been, whether that experience is abuse, neglect, abandonment, or a misunderstanding of their family's circumstances.260 The interests of a child vary with the child's age and experience, but these interests are always vital to a just outcome in a system designed to protect children.

C. Role of Counsel

Several roles exist in various forms throughout the states for representation of children in the court system;261 these roles differ from state to state, but this Part will provide a broad outline of some possibilities. Most states have guardians ad !item (g.a.l.) whose primary role is to represent the child's best interests, as the g.a.l. understands those interests.262 Many states now incorporate Court Appointed Special Advocates (CASAs) in the role of guardian ad !item; they serve as lay volunteers who monitor foster children and provide independent feedback to the court on the welfare of those children.263

Neither a g.a.l.264 nor a CASA265 fulfills the traditional role of an attorney, zealously representing the child's interests within the bounds of the law.266 An attorney is required for presenting evidence, cross-examining witnesses, and contesting actions by the state or the child's parents that are contrary to the child's interests.267 Some states incorporate the role of attorney and the role of g.a.l. into one lawyer and describe that person as a law guardian.268 Depending on the age of the child, different roles will be necessary for a child's attorney in an expedited proceeding to terminate parental rights.

This Note proposes that older children should have both an attorney and a g.a.l. or CASA, but a younger child is best represented by a law guardian who combines those roles. The distinction between a child old enough to have sufficient perspective to require both an attorney and a g.a.l. and a child young enough to be served by a law guardian does not lend itself to a bright line rule. Because of differences in development and maturity in individual children, an amendment providing both options should leave the choice to the discretion of the judge.

a. Older Children

The American Bar Association advocates the use of both a g.a.l. or a CASA and an attorney to represent children in abuse and neglect proceedings.269 This model would work well in expedited termination proceedings for older children who can form and articulate their own wishes regarding the disposition of their cases. In this model, the g.a.l. or CASA would be independently responsible for evaluating the child's circumstances, including outside relationships that might be preserved to meet the child's need for continuity, the child's maturity level and capabilities, and developing an independent idea of the child's best interests to report to the court.270 This role is important because even older children might not have a complete idea of what their best interests are because of their limited experience and upbringing in a dysfunctional and abusive world. Children's wishes and their best interests may not be the same, and both should be presented to the court.

The attorney, on the other hand, would be responsible for presenting the child's wishes as the child expresses them, in the traditional role of advocate. The Model Rules of Professional Conduct suggest that an attorney for a child should maintain the traditional role of the attorney, zealously representing the client's position within the bounds of the law.271 Attorneys balance the relative competency of clients regularly in cases involving the elderly and mentally ill.272 Representation of an older child need not be substantially different. The child can articulate the experiences and circumstances of the child's life, and the child's attorney can zealously advocate the child's wishes about the disposition of the child's case before the court.273 These wishes would be balanced or supported, depending on the circumstance, by the g.a.l. or the CASA who would advocate an independent view of the child's best interests.

b. Younger Children

Very young children are not capable of forming opinions regarding their own welfare, nor can they direct an attorney regarding their interests.274 Young children do not always comprehend long range consequences of choices.275 Young children, however, do have a much stronger and more viable interest than older children in placement in an adoptive home and in the traditional idea of a fresh start.276

One example of effective representation for young children can be found in New York's law guardian program. In that system, an attorney is responsible for presenting all information affecting the child's interests, including the child's own perspective if he or she is old enough to have one.277 Like the guardian ad !item,278 the lawyer is not bound by the child's expressed wishes and may form his or her own opinion concerning the child's best interests.279 This role is particularly important when the child does not have the cognitive ability or maturity to decide wisely with due consideration for the consequences ofthat child's decision.280

Because a law guardian is an attorney in addition to a g.a.l., the law guardian is bound by Model Rules of Professional Conduct, which suggest that an attorney for the child should maintain the traditional role of the attorney as closely as possible.281 Therefore, the law guardian would be responsible for presenting the child's point of view if and when the child is old enough to have one.282 Even a very young child has perspectives on his circumstances. As Professor Woodhouse notes, when a baby says "Daddy," she is referring to one specific person in the world.283 A law guardian can present this perspective to the court. A law guardian would also present evidence of the baby's best interest, including facts like the person the baby refers to as Daddy is a dangerous drug addict whose physical abuse of that baby is too severe to allow her to continue contact with him.284

D. Logistics of Finding and Paying Attorneys

Congress has previously used the power of the purse to encourage states to conform to federal statutes affecting family law,285 and ASFA should be amended to similarly provide those types of incentives for provision of counsel to children in expedited termination cases. Throughout the history of federal involvement with adoption law, Congress used financial incentives to pull states into line with the current politically expedient solution.286 In AACWA, Congress authorized payments to states for carrying out the legislation's foster care and adoption provisions.287 The Supreme Court has explicitly authorized this type of financial incentive to comply with federal initiatives in South Dakota v. Dole.288 Conditions on federal spending are legitimate so long as federal spending is in pursuit of general welfare,289 is unambiguous in its requirements,290 is related to federal interest in a particular program,291 and does not violate other constitutional provisions.292

ASFA itself already contains financial incentives that encourage states to place more children in adoptive homes than were placed in the previous year.293 These financial incentives are available after an adoption is finalized, even if the adoption later fails.294 Congress's intent was that children find permanence, not that they be placed for adoption.295 Rather than providing $4000 for every child adopted above the number of children placed for adoption in the previous year,296 Congress should provide an incentive for states to provide attorneys to children in expedited proceeding hearings.

Unlike past manipulation of statutes, which encouraged states to use one approach or another for the vast majority of children, the requirement that states provide counsel for children in expedited proceedings to terminate parental rights will encourage courts to focus on the individual circumstances of each child who comes before those courts. Provision of counsel could help ASFA to succeed where other legislation has failed by providing a method to focus the system on each child's interests.

States can provide counsel for children, just as they do for all indigent parties when a statute or the Constitution requires it.297 In places where the government has made the provision of counsel for children a priority, systems are in place to find attorneys to provide the service. New Jersey has a law guardian system that allows attorneys in the guardian pool to choose the counties and numbers of cases they are comfortable handling.298 Canada's Ontario Province also maintains an "Official Guardian" child representation program.299 New York's law guardian program includes four regional programs and directors, advisory committees, a series of training programs, and a periodical.300 Encouraging states to appoint counsel for children does not necessitate mandating where those attorneys come from. Each state may find a unique method of providing counsel, using creative processes more suited to state than federal legislation.301

Some children's rights advocates have criticized federal involvement in proceedings to terminate parental rights because states are closer to the events in which a child's health or safety is endangered.302 Additionally, some experts express concern that the government does not serve children's best interests as it adheres to a constitutional standard protecting parents that, in turn, prevents states from addressing domestic problems within their own borders.303 While states have developed novel approaches to family law problems, the federal legislature and judiciary have not done so.304 justice Rehnquist specifically addressed this problem in his dissent in Santosky, noting "a trend of federal intervention in state family law matters which surely will stifle creative responses to vexing problems."305 By incentivizing appointment of counsel for children, federal law can provide guidance and focus states' attention on children without dictating individual methodology on details of implementation.

Family law has traditionally been part of the state police power,306 and the circumstances and cultures of individual states may lend themselves to different systems of representation for children. New York307 and New Jersey308 already provide attorneys to children through their law guardian programs. Urban areas might rely on pro-bono work from attorneys in large firms, and smaller, more rural areas may need to use public funds to compensate smaller local practices for their time. States provide different kinds of representation now,309 and those systems could be modified in different ways to access federal funds for attorneys for children in expedited proceedings to terminate parental rights. The federal government intended to spend its money in ASFA to serve the best interests of children,310 and providing attorneys will better accomplish that goal than across-the-board adoption incentives. However, the mechanism by which each child receives an attorney should vary as these provisions are incorporated into already existing child welfare systems.

V. Conclusion

Congress's provision for expedited termination of parental rights came too late for Frank Torres and Angelo Marinda. Both boys, subject to the mandate to reunify at almost any cost, became victims of extreme violence in their biological families' homes.3" Congress intended that these kinds of deaths cease after ASFA,312 and it provided a way for states to expedite the process to remove children permanently from these kinds of dangerous environments. However, Congress also demanded that the health and safety of the children be the court's focus in determining the outcome of a case.313

The sisters in foster care in Rhode Island discussed in the introduction of this Note may have a chance for bonding with a new family, and adoption may still be a real option for them, especially while they are still young.314 Their mother is fighting to get them back, despite the physical damage she has inflicted on their bodies.315 The state will have an interest in protecting itself from liability because its social workers gave the mother a favorable report and returned the baby to her care.316 Without an amendment to ASFA, these little girls will not have their own advocate presenting their stories and interests to the court. As very young children, this Note suggests the little girls be given a law guardian, who can inform the court of any wishes they can express as to their futures as well as independently advocate a disposition in their best interests.

Lucas Ciambrione's biological sister and the other child adopted by the Ciambriones are now the subjects of a second proceeding to terminate parental rights.317 The state already has terminated parental rights to these children once, then placed the children in a no better (and perhaps worse) situation than that in which they were born. The Ciambriones are fighting the termination, despite the documentation of their abuse of Lucas and his resulting death.318 Without an amendment to ASFA, Lucas's siblings will not have an attorney to present their chances for re-adoption, their perspectives on the abusive household, their connections to other important adults in their lives, or numerous other factors that might be important to the disposition of their cases. The Ciambrone children are now veterans of the system who have lost a brother to parental abuse; they are likely old enough to have their own wishes and perspective on the disposition of their cases. This Note contends that the state should give them both a CASA and an attorney to ensure that both their wishes and their best interests come before the court deciding their fate.

Children's interests differ substantially from those of their parents and those of the state in expedited termination proceedings.319 The state and often parents have their own lawyers in those proceedings, but federal law does not similarly provide counsel for children.320 The circumstances of each individual child are unique, and no one solution can be drafted to meet all children's needs. Congress intended for states to focus on children in determining child welfare cases.321 Requiring states to provide counsel for children in expedited proceedings to terminate parental rights, in which the state quickly determines a child's ultimate fate, will assist courts in focusing on children in those proceedings, and thus adheres to the ultimate goal of ASFA. Congress should change the financial incentives in ASFA to encourage states to provide a voice for children in expedited proceedings to terminate parental rights.

Bridget A. Blinn*

* Candidate for Juris Doctor, Washington and Lee University School of Law, May 2004; B.A., Centre College, 2000. I want to thank Professor C. Quince Hopkins and Carrie Bowden for their feedback, advice, and encouragement. Thanks also to my family, Rick and Joan Blinn and their many small children, for teaching me to value the voices of even the very young. My friends also have been invaluable in writing this note, especially Bart Forsyth and Rebecca Wetzet, whose help and patience with me are priceless.

Copyright Washington & Lee University, School of Law Spring 2004