The Amicus Project
Although the Justice for Children Project represents individual clients, the Project also is actively engaged in promoting the rights of children through law reform. To further this goal, the Project has created The Amicus Project to provide amicus assistance in cases that implicate the rights of children whose voices often are excluded from the litigation process. To request amicus assistance in a particular case, please email Professor Katherine Hunt Federle at the Justice for Children Project.
On November 3, 2005, the Washington Supreme Court issued an opinion in In Re Parentage of L.B., and held that a nonbiological mother was a de facto parent and therefore, could seek to establish and assert her parental rights. The case involved a dispute between a biological mother, Page Britain, and her same-sex partner, Mian Carvin, over the custody of their 9-year-old daughter. Carvin, who had stayed home to raise the child, had been denied custody and visitation. The trial court never heard from the child and refused to appoint an attorney or a guardian ad litem for the child.
In the Washington Court of Appeals, the Justice for Children Project filed a brief arguing that the child has a constitutional right to maintain a parent-like relationship and was denied procedural due process when the trial court denied her an opportunity to be heard.
The Court of Appeals ruled that the child has a constitutional right to maintain a relationship with her parent, citing to amicus briefs filed by the Justice for Children Project and others. The case was appealed to the Washington Supreme Court; the Project filed another brief, explicitly arguing that the child was entitled to counsel.
In rendering its ruling, the Washington Supreme Court, in footnote 29, recorded the following significant observation:
Particularly relevant, amicus curiae the Justice for Children Project advocates on behalf of L.B. for appointment of independent counsel. Because no party to this dispute, Britain, Carvin, nor L.B., through her GAL, has raised or otherwise addressed this issue at any stage in the proceeding, we decline to consider the issue of whether appointment of counsel is in fact constitutionally mandated. See RAP 13.7(b).
That being said, we strongly urge trial courts in this and similar cases to consider the interests of children in dependency, parentage, visitation, custody, and support proceedings, and whether appointing counsel, in addition to and separate from the appointment of a GAL, to act on their behalf and represent their interests would be appropriate and in the interests of justice. Cf. RCW 13.34.100(6); RCW 26.09.110; King County Local Family Law Rule 13.
When adjudicating the 'best interests of the child,' we must in fact remain centrally focused on those whose interests with which we are concerned, recognizing that not only are they often the most vulnerable, but also powerless and voiceless.
We, however, reserve for another day the underlying question raised by amicus of whether the United States or Washington Constitution mandate appointment of counsel in a given circumstance. But see Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1359-61 (N.D. Ga. 2005) (holding children have fundamental liberty interest in deprivation proceedings and due process requires appointment of independent counsel to represent child's interests).
Professor Katherine Hunt Federle, Director of the Justice for Children Project, and Professor Angela M. Lloyd, Assistant Clinical Legal Professor, filed the amicus brief on behalf of the Project. Current and former Moritz law students in the Practicum who worked diligently on the brief included Melissa Callais, Kim Rigby, Lindsey Lathwell, Erin Davies, Dianna Parker, and Rachel Relle.
In the fall of 2003, the Justice for Children Project filed amicus briefs in the Ohio Supreme Court and in the Washington Court of Appeals. The case before the Ohio Supreme Court, In re Williams, involved two little boys whose mother's parental rights had been terminated. The children in this case have continually fought the state's attempts to take away their mother.
Despite their pleas, the trial court judge refused to appoint them an attorney, on the grounds that they were represented by a court-appointed guardian ad litem. The guardian ad litem, however, ignored the wishes of the children and repeatedly asked the court to give the children to a state agency for adoption.
The Justice for Children Project and The Ohio Association of Criminal Defense Lawyers jointly filed an amicus curiae brief arguing that the children were entitled to independent counsel in any proceeding to terminate parental rights. The Ohio Supreme Court held that "a child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances." (Complete text of the Court's opinion in Williams)
In May of 2000, the Project filed its first amicus curiae brief in the Ohio Supreme Court in Moore v. Asente. The case revolves around the contested adoption of a young child named Justin. His biological parents, who live in Kentucky, had placed him with prospective adoptive parents in Ohio, but subsequently sought to regain custody.
What sets this case apart from other contested adoption cases is the fact that, a few years before, these same biological parents placed another son with the same adoptive parents. That child, Joseph, was successfully adopted by the same parents who now wish to adopt Justin. Joseph is both the full biological brother of Justin and his prospective adoptive sibling.
The case had been proceeding through both the Ohio and Kentucky courts. In August 2000, the Ohio Supreme Court ruled it had no jurisdiction to hear the matter. The appellate court in Kentucky ruled that the adoption should proceed and the biological parents appealed to the Kentucky Supreme Court.
Professor Federle, through local counsel, filed an amicus brief in the Kentucky Supreme Court. Almost three years after the appellate court issued its ruling, the Kentucky Supreme Court remanded the case to the trial court and ordered that the child's placement be made in accordance with his best interests.
Law students in the Justice for Children Practicum and student volunteers from Professor Federle's Children and the Law classes have worked on both briefs. (read the Kentucky Supreme Court's decision) More information about the Asente case cases can be found at the Asente family's web site.