the Denver Post
In a decision that child advocates are calling landmark, the Colorado Supreme Court has ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege.
The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided normally unified children's advocates.
Some say the ruling will erode the crucial trust between a child and a guardian ad litem. Others argue that the decision confirms that the attorneys' duty is to do what's best for the child, even if the child doesn't agree.
"I think where we come down on this is disappointed," said Stephanie Villafuerte, executive director of the Rocky Mountain Children's Law Center, which represents children, primarily those in foster care.
Villafuerte said she feared the ruling would have a "chilling effect" on what troubled and abused kids — many of whom already have had their trust betrayed by adults — will confide in their attorneys.
"Kids are going to be mortified," she said.
But Linda Weinerman, executive director of the Office of the Child's Representative, a state agency that contracts with the state's 234 guardians ad litem, said the Oct. 24 ruling affirms the approach her office has used throughout its 11 years.
Weinerman said that as a guardian ad litem, her approach was, "I'd tell kids I'm representing you and I will not tell things you don't want me to tell unless I think they are things that will affect your safety. My job is to protect your safety."
In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected, or is in foster care. In some instances, they are appointed for kids who have been accused of crimes or are at the center of a custody fight.
In the majority opinion, Justice Nathan Coats wrote that a guardian ad litem does not represent litigants on opposite sides of a case "or even the demands or wishes of the child. . . . The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child."
Chief Justice Michael Bender and then-Justice Alex Martinez dissented.
Jeff Koy, an attorney at the Children's Law Center, said his organization argued in a brief filed in the case that children should be recognized as people entitled to legal representation.
But had the court ruled that way, Weinerman said, she could envision an attorney recommending a judge not return a child to his or her parents but being unable to explain why because the recommendation is based on something a child confided.
The case that produced the ruling illustrates the complex issues surrounding the guardians ad litem relationship with the children they represent.
Who is the Colorado Criminal Justice Reform Coalition?
Our chief areas of interest include drug policy reform, women in prison, racial injustice, the impact of incarceration on children and families, the problems associated with re-entry and stopping the practice of using private prisons in our state.
If you would like to be involved please go to our website and become a member.
Thursday, November 03, 2011
the Denver Post