.nI-ucalne. v-u. ‘ . .. . b . u _ ‘ . , , . . ‘ . 4 , , ,. . ,. , o n . , I . . . ‘. 4 . ‘ ,... j . . . V .. . up .‘ . . : .,:. V ; 7‘ ...r .r... .y {hr—2 ... .. A . ..!.!... p M W" ‘ lllllllllllllllllllllllll‘lllllllllllllllllll LIBRARY Michigan State University This is to certify that the thesis entitled INDEPENDENT REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT PROCEEDINGS presented by MARCIE ANN GREENBERG l has been accepted towards fulfillment of the requirements for MASTERflLSfllENCEdegree in CRIMINAL JUSTICE Wim Major professor Date AUGUST 10, 1989 0-7639 MS U i: an Afl‘innnfive Action/Equal Opportunity Institution PLACE II RETURN BOX to remove this checkout from your record. TO AVOID FINES roturnon or before duo duo. DATE DUE DATE DUE DATE DUE MSU Is An Affirmative Action/Equal Opportunity Inuitution INDEPENDENT REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT PROCEEDINGS BY Marcie Ann Greenberg A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE Department of Criminal Justice 1989 ABSTRACT INDEPENDENT REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT PROCEEDINGS BY Marcie Ann Greenberg An exploratory study of independent representation for children in abuse/neglect proceedings is presented in this thesis. Independent representation, in which either a court-appointed attorney or lay volunteer advocate for the child, is a relatively new practice. In Michigan, independent representation by court-appointed legal counsel is legally mandated by Section Ten of the Child Protection Act. The numerous problems and unresolved questions surrounding the practice warranted a study of judicial and non-judicial perceptions regarding independent representation. Probate court judges within the state were mailed questionnaires designed to assess their views regarding this practice and the impact of Section Ten. Additionally, non-judicial court workers within Ingham County were interviewed. Univariate and multivariate analyses were utilized for measurement of data. The findings indicated that judges and non-judicial workers believed independent representation is necessary, court-appointed attorneys counsel are appropriate for the role, and the child's best interests are obtainable through independent representation. Copyright by MARCIE ANN GREENBERG 1989 DEDICATION I wish to dedicate this thesis to Henry, Lorraine, and Joe Greenberg. Without the love and support of my family, I never would have been able to finish this thesis. I love you. ACKNOWLEDGMENTS There are several people I wish to acknowledge who were instrumental toward the completion of this thesis. I wish to thank my chairwoman, Dr. Rosy Ekpenyong for all her guidance and persistance. In addition, I would like to thank the other two members of my comittee, Dr. Tim Bynum, for his friendship and Zolton Ferency for his knowledge. I wish to thank my family and friends who have been so supportive and understanding during the past two years. I may not have been around very much, but you were always in my thoughts and in my heart. I wish to thank Dr. Jaye Hamilton for helping me handle the stress. Her assistance throughout the last year has been tremendous. Most of all, I wish to thank my best friend, Phillip John Barry, for being so supportive, helpful, understanding and forgiving. The past two years have been quite a test. vi TABLE OF CONTENTS Page LIST OF TABLES ix CHAPTER ONE: INTRODUCTION 1 INTRODUCTION ...............................1 BACKROUND OF THE PROBLEM ..................32 THE PROBLEM ................................5 ARGUMENT FOR INDEPENDENT REPRESENTATION ....6 DEFINITION OF TERMS .......................10 STATEMENT OF PURPOSE ......................13 RATIONALE OF THE STUDY ....................15 RESEARCH QUESTIONS ........................16 OVERVIEW OF THE STUDY .....................18 PHHHHHHHH 000...... madmmthI-t CHAPTER TWO: REVIEW OF THE LITERATURE - 21 .1 INTRODUCTION ............. ............... ..21 .2 HISTORICAL OVERVIEW ............... ..... ...21 .2.1 BRIEF DISCUSSION OF CHILD ABUSE .........21 2.2 FORMATION OF PROBATE COURT ..............23 3 CRITICISM OF PROBATE COURT ................26 4 OVERVIEW OF MICHIGAN PROBATE COURT ........27 PROCEDURE 2.5 THE IDEAL OF INDEPENDENT REPRESENTATION ...31 2.5.1 NECESSITY OF INDEPENDENT.................31 REPRESENTATION 2.5.2 CONSTITUTIONAL ARGUMENT FOR LEGAL .......36 COUNSEL 2.6 THE BEST INTERESTS OF THE CHILD ...........44 2.6.1 SUPPORT FOR INDEPENDENT .................48 REPRESENTATION 6.2 GUARDIANS-AD-LITEM ......................50 6.3 MICHIGAN COURT CASES ....................53 7 LEGISLATIVE MANDATES ......................55 8 MICHIGAN CHILD PROTECTION ACT .............57 9 1 2 2 2 2 2 2 ALTERNATIVES TO LEGAL COUNSEL .............65 o EMPIRICAL STUDIES 0 O I O O O O O O O I I O O O O O O O O O O C O 68 SUMRY ...OOOOOIOOOOOOOOOOOOOI0.0.0.00000000000000075 CHAPTER THREE: RESEARCH DESIGN AND PROCEDURE 77 3.1 SUBJECT DESCRIPTION .......................77 3.2 RESEARCH DESIGN ...........................80 3.2.1 PILOT STUDY .............................82 3.2.2 THE STUDY ...............................84 3.2.3 DISADVANTAGES TO USE OF SURVEYS .........86 3.2.4 LIMITATIONS OF STUDY ....................87 3.3 DATA COLLECTION PROCEDURES ................88 vii 3.4 RESEARCH QUESTIONS ........................91 3 O 5 DATA ANALYSIS 0 O O O O O O O O O O O O O O O O O O O O O O I O 0 O O O 92 SWY O....OOOOOOOOOOOOOOOOOOOOO0.0.0.00000000000098 CHAPTER FOUR: DATA PRESENTATION 100 AND INTERPRETATION RESULTS FROM SURVEY QUESTIONNAIRE ........100 1 INTRODUCTION ...........................100 2 RESEARCH QUESTIONS .................... 100 PERSONAL INTERVIEWS ......................116 1 INTRODUCTION .............. ..... ........116 2 THE RESPONSES ..........................118 CROSSTABULATIONS .........................137 1 ZERO-ORDER CROSSTABULATIONS ............139 2 FIRST-ORDER CROSSTABULATIONS ...........148 INTERPRETATION OF FINDINGS ...............151 1 RESULTS FROM SURVEYS AND INTERVIEWS ....151 2 ZERO-ORDER AND FIRST-ORDER .............163 RELATIONSHIPS 4.4.3 SUMMARY OF FINDINGS ....................168 SUMMARY............ ........... .......... ........... 173 bhbbbbébbhbh CHAPTER FIVE: SUMMARY AND RECOMMENDATIONS 174 5.1 OVERVIEW OF RESEARCH PROBLEM .. ........ ...174 5.1.1 STATEMENT OF PROBLEM ...................176 .1.2 RESEARCH QUESTIONS ......... ..... .......177 1.3 METHODOLOGY ............................178 2 SUMMARY STATEMENTS .......................179 3 COMPARISON OF PRIOR STUDIES...............182 4 SIGNIFICANCE OF STUDY ....................185 5 IMPLICATIONS OF STUDY ....................187 6 LIMITATIONS OF STUDY .....................191 7 RECOMMENDATIONS FOR FURTHER STUDY ........193 8 OVERVIEW................................. 194 APPENDICES A . SURVEY QUESTIONNAIRE I O O O O O O O O O O O O O O O O O O O I O O 19 6 B. FOme-UP LETTER 0 O C O O O O O O O O O O O O O O O 0 O O O O O O I O 202 C. CODEBOOK ...OCOOOOOOOOOOOO00.0.0000000000000203 LIST OF REFERENCES C....OOOOOOOOOOOOOOOQOOOOOOOOOOOOZOB viii TABLE 3.1 TABLE 4.1 TABLE 4.2 TABLE 4.3 LIST OF TABLES NUMBER OF JUDGES RESPONDED BY COUNTY CROSSTABULATED VARIABLES WHICH DID NOT RENDER SIGNIFICANCE SUMMARY OF ZERO-ORDER CROSSTABULATIONS SUMMARY OF FIRST-ORDER CROSSTABULATIONS ix Page 81 138 163 167 CHAPTER ONE INTRODUCTION 1 . 1 INTRODUCTION The purpose of this thesis is to present an exploratory and descriptive study of independent representation of children in abuse/neglect proceedings. More specifiCally, the study will examine and assess judicial and non-judicial perceptions of both the concept of independent representation and the use of ' legally-mandated, separate counsel or lay volunteers to represent abused and/or neglected children in Michigan Probate Courts. Since Section Ten of Michigan's Child Protection Act requires the use of legal counsel to represent all children and their best interests in abuse/neglect proceedings, this study will also assess the above constituency's assessment of the efficacy of various facets of this Act. The present study will investigate whether, from both a judicial and non-judicial standpoint, the child's best interests can be attained through the medium of independent representation as mandated by Section Ten. The study population for the thesis consists of participants in child abuse/neglect proceedings, especially Michigan's Probate Court judges. The study will examine various opinions among probate court judges concerning independent representation. In order to obtain the broadest and widest variations in opinions, the thesis will study 2 the views of as many probate court judges as possible instead of a smaller subset of the group. In addition, to achieve a well balanced and less biased understanding of perceptions within the probate court, opinions of other participants in the proceedings (i.e. prosecutors, court-appointed legal counsel, probate court case workers and protective service workers) will also be sought. However, the primary goal of this research is to determine judicial opinions since judges possess a vast amount of knowledge, influence and experience within the probate court. The thesis will explore several questions concerning independent representation, including: whether there is a need for independent representation; who is perceived as best suited for this role (i.e. court-appointed legal counsel or lay volunteers), how the concept of the child's best interests influences judicial proceedings; and what should be the roles and responsibilities of the representative. 1.2 ‘BACRROUND OF THE PROBLEM The trend toward independent representation for children has increased nationally over the past 15 years due, in part, to the 1974 Federal Child Abuse Prevention and Treatment Act. This Act requires states, seeking to qualify for federal funding and assistance for the prevention and treatment of abuse and neglect, to appoint a 3 guardian-ad-litem to all children in abuse/neglect proceedings (Johnson, 1979: 15: P.L.93-247; Kelly and Ramsey, 1982-83: 409). Specifically, the Act requires that states, (P.L. 93-247): Provide that in every case involving an abused or neglected child which results in a judicial proceedings a guardian ad litem shall be appointed to represent the child in such proceedings. However, the Act does not indicate how individual states should satisfy this requirement or what is intended by the term guardian-ad-litem. Although the Act states that the guardian-ad-litem need not be an attorney, the legal functions required of a guardian-ad-litem in representing children, (i.e. filing motions, calling witnesses) assumes the need to use legal counsel as guardian-ad-litem (Johnson, 1979: 15-16; Kelly and Ramsey, 1982-83: 409). The main problem with the Act is that the duties and limitations of guardians-ad—litem have not been defined for state implementation (Johnson, 1979: 16). By not defining the role of the guardian-ad-litem or who should assume this role, the federal legislature has allowed individual states wide discretionary power to make these decisions within their own state legislature. Michigan is one of 47 states and the District of Columbia to require some type of independent representation for children. In 39 jurisdictions, including Michigan, abused/neglected children are entitled to legal representation. However, 4 ithree states have statutory requirements providing for the appointment of volunteers to represent children in abuse/neglect proceedings (Witcomb, 1988: 2-3). Independent representation for children in abuse/neglect proceedings by legal counsel became a requirement in Michigan probate courts in 1975 when the state legislature enacted the Child Protection Act. Section Ten of the Act states (P.A. 1975, No.238): The court, in every case filed under this act in which judicial proceedings are necessary, shall appoint legal counsel to represent the child. The legal counsel, in general, shall be charged with the representation of the child's best interests. To that end, the attorney shall make further investigation as he deems necessary to ascertain the facts, interview witnesses, examine witnesses in both the adjudicatory and dispositional hearings, make recommendations to the court, and participate in the proceedings to competently represent the child. The Child Protection Act is intended to improve protection under the law for children who have been allegedly abused and neglected by their caretakers (Memorandum, Dept of Management and Budget, 1975). However, the many questions and problems associated with the use of independent representation; (to be discussed in the next section), cause one to doubt the ability of the probate court to serve the child's best interests (Johnson, 1979: 20). 1.3 THE PROBLEM There are several problems and questions relating to independent representation of children in abuse/neglect proceedings by legal counsel which shall be explored in this thesis. The issues, including Section Ten of Michigan's Child Protection Act, which are most problematic, include: (a) whether independent representation is actually necessary: (b) what are the roles and responsibilities of the individual who represents the child; (c) what factors are most important when deciding upon the best interests of the child: (d) and who is most appropriate to represent the child in judicial proceedings. The underlying dilemma, which draws each of these problems and questions together, is whether the use of independent representation and Section Ten of the Child Protection Act accomplishes the intended purpose of protecting children's best interests. The overreaching question concerns whether the use of independent representation of children in abuse/neglect proceedings by legal counsel protects children and provides for their best interests. Several questions arise when one examines the issues related to independent representation. Due to the conflicting arguments among authors and practitioners (Fraser, 1976: Fraser, 1977: Genden, 1976; Guggenheim, 1984), the debate continues as to the necessity of 6 independent representation. The probate court has changed substantially since the landmark Supreme Court cases of the 1960's, most notably In Re Gault. Based upon these cases, the Supreme Court found that the courts could no longer deny children many of the due process constitutional rights afforded to adults during judicial proceedings (387 U.S. 1). Since the Gault case was passed down, children in delinquency proceedings have been entitled to the right to counsel. Many courts and state legislatures, including those of Michigan, have interpreted this ruling to be applicable within abuse/neglect proceedings as well (Genden, 1976; Guggenheim, 1984). Generally, those authors who advocate the use of court-appointed legal representation for children in abuse/neglect proceedings have argued against the use of other lawyers already participating in these proceedings, (i.e. representatives for the State and representatives for the defendants) to represent children. This argument is based upon the grounds of a conflict of interest within the role of representative (Fraser, 1977; U.S. Dept of Health and Human Services, 1980). However, the question still remains as to whether independent representation is necessary: and whether other individuals in the judicial proceedings are appropriate to represent children. 1.4 ARGUMENT FOR INDEPENDENT REPRESENTATION The argument for the necessity of independent 7 representation is extremely compelling. It is argued that independent representation for children in abuse/neglect proceedings is necessary because there is no other individual in the court proceedings available to protect the rights and interests of the child. The probate court system was developed under a philosophy of Parens Patriae, in which the court, under the guise of super-parent, has been charged with the responsibility of protecting children. However, the court has not been able to live up to the early ideals of the reformers who established the court (Clark, 1968). The failure of the court is due, in part, to the fundamental conflict within the ideals of the court (p. 9). Even though judges, as conduits for the courts, are charged with the responsibility of protecting the rights and interests of children, their role as arbiter of the abuse/neglect proceedings constitutes a dilemma for judges. It is impossible for the judge to render an impartial and equitable decision regarding the occurrence of abuse while actively pursuing the rights of the child (Fraser, 1976; Fraser, 1977: 462). Thus, the judge, in all fairness to every individual involved in the proceedings, should temporarily transfer his responsibilities toward the child to a third party (Fraser, 1977). Many writers in the field of child abuse and neglect recommend that guardians-ad-litem be assigned the duties of representing the interests of the child in abuse/neglect proceedings (Fraser, 1976; Fraser, 1977: Fraser and Martin, 8 1976: U.S. Dept of Health and Human Services, 1980). Traditionally, the role of guardian—ad-litem in the probate court was limited to the protection of the financial interests (i.e. assets, property, and inheritance) of children and incompetents who came before the probate court. The application of guardians-ad-litem for the protection of children in abuse proceedings is a relatively new innovation which has slowly gained acceptance in the past two decades (Fraser & Martin, 1976). P.L. 93-247 requirement for the assignment of a guardian-ad-litem for children in abuse/neglect proceedings illustrates the growing acknowledgment of the necessity of independent representation for the child (Fraser & Martin, 1976: 171). The argument for children to be independently represented by court-appointed legal counsel is equally compelling. Children in abuse-neglect proceedings should be represented by legal counsel because anything less would be a denial of their constitutional right to.due process. At the present time, the constitutional right to representation by legal counsel for children in abuse/neglect proceedings has not been recognized in case law. However, children have a constitutional right to due process protections because, (a) of the potential loss of liberty through change of custody: (b) of the constitutional requirement to a fair hearing; (c) the parent-child relationship is a fundamental right which requires the protection of due process. 9 The United States Supreme Court, in the case of In Re Gault, has recognized that children in delinquency proceedings should be afforded the same constitutional protections as adults. The Court denounced the early philosophy of the probate court, which denied the child the same procedural rights available to adults and asserted that children had a right "not to liberty but to custody" (387 U.S. 1). The Court ruled that Gerald Gault had been denied four fundamental constitutional rights in relation to the 5th 6th and 14th Amendment rights to the due process. Thus, as a result of Gault, states can not deprive children in delinquency proceedings of "life, liberty, or property, without due process of law" (Fourteenth Amendment). The rights of due process, as outlined in the 6th Amendment, include the right to counsel. Genden (1976) believed that the findings of Gault, in relation to the right to counsel, were so considerable that the ruling can and should be extended to apply to abuse/neglect proceedings as well. "Children, like adults, have a constitutional right to counsel in any proceedings threatening them with a deprivation of liberty" (Genden: 581). Thus children have the constitutional right to legal counsel due to the potential loss of liberty. In addition, the rights of due process require that all individuals who come before the court are afforded a fair hearing. Children in child abuse/neglect proceedings have a constitutional due process right to legal counsel because such counsel is 10. necessary to receiving a fair hearing (Bell, Graham and White, 1975: 1092). Lastly, both children and adults have the constitutional right to counsel because the parent-child relationship is a fundamental right and thus subject to all due process protections (Singleman, 1975: 1062). Singleman (p. 1063) found that the Supreme Court has declared that, "the parent-child relationship is indeed fundamental in our society and the parents' right to the child's custody is a liberty which must be afforded the protection of due process". Thus, abuse/neglect proceedings are under the guise of the 14th Amendment. The scope of the application of due process protections toward abuse/neglect proceedings includes the right to counsel for children (Singleman 1975). To reiterate, independent representation for children in abuse/neglect proceedings is necessary for the protection of the rights and interests of the child. In addition, children have a constitutional right to be independently represented by court-appointed legal counsel in abuse/neglect proceedings under the umbrella of due process. 1.5 DEFINITION OF TERMS INDEPENDENT REPRESENTATION: For the purpose of this study, independent representation is defined as any person, either court-appointed legal counsel or lay volunteer, whose 11 duties as representative include, but are not limited to, (a) advocating the perceived best interests of the child: (b) investigating the case throughout the judicial proceedings: (c) aggressively representing the child during the proceedings (i.e. calling and cross-examining witnesses); meeting with the child between proceedings: (d) and, when necessary, expressing the child's wishes to the court. The independent representative represents only the child and no other individual (i.e. petitioner, defendant, or state representative) involved in the child abuse/neglect judicial proceedings. CHILD ABUSE: The definition of child abuse for the purpose of this study is based upon the definition provided in Michigan's Child Protection Act (P.A.l975, No.238, Eff. 0ct.1). Sec. 2 of 722.622, which states that, "Child abuse means harm or threatened harm to a child's welfare by a person responsible for the child's health or welfare which occurs through nonaccidental physical or mental injury: sexual abuse; sexual exploitation; or maltreatment". In this study, the term child abuse will refer to all forms of abuse. CHILD NEGLECT: The definition of child neglect for the purpose of this study is based upon the definition provided in Michigan's Child Protection Act. Sec. 2 of 722.622, 12 which states that, "Child neglect means harm to a child's health or welfare by a person responsible for the child's health or welfare which occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter or medical care". LEGAL COUNSEL: For the purpose of this study, the term legal counsel refers to lawyers/attorneys who, for a minimal fee, are voluntarily available to the probate court to act as court-appointed counsel in child abuse/neglect cases. While court-appointed counsel may be used to represent the parents, for this study, discussion of court-appointed counsel is limited to the appointment of counsel for children in abuse/neglect cases. LAY VOLUNTEERS: For the purpose of this study, the term lay volunteers refers to those individuals who, either independently or through an established organization, volunteer their time and services, free of charge, to independently represent children in abuse/neglect proceedings. ABUSE/NEGLECT PROCEEDINGS: For the purpose of this study, the term abuse/neglect proceedings refers to the judicial process involving the initiation of a petition requesting for court action, the preliminary hearing, the adjudicatory 13 phase and the dispositional phase of probate court proceedings. Abuse/neglect proceedings are conducted within the probate/juvenile court and are civil proceedings. 1.6 STATEMENT OF PURPOSE The roles and responsibilities of independent representation have been questioned due to the lack of concrete definitions by the courts and the legislature (Johnson, 1979; Long, 1982-83). Although Michigan's Child Protection Act lists a few duties expected of court-appointed legal counsel in the role of independent representative, this list is not exhaustive. It only includes a generic reference to the representation of the best interests of the child. The Act does not state the type of commitments or role expectations required of counsel as representatives. The roles and responsibilities of court-appointed legal counsel are undefined and subject to the interpretation of the individual county and lawyer. This thesis will examine the role played by independent representation while pursuing the best interest of the child. In addition, it will provide a panorama of how probate courts in Michigan define these roles and responsibilities and any inter-jurisdictional variations in definitions. The thesis will also explore perceptions of the best interests of the child. This long standing doctrine within the probate court, most often used within custody issues, 14 has been criticized for being subjective and discretionary (Thomas, 1974). The thesis will explore what the judges and court officials feel are the factors which should be used when deciding the child's best interests. Although Michigan law mandates that legal counsel be appointed to represent children in abuse/neglect proceedings, many counties use lay volunteers to represent the child instead of or in addition to legal counsel. There is an ongoing debate as to who is better at representing the child, that is, legal counsel or lay volunteers. Arguments against legal counsel include the expense involved, lack of formal, specific training toward the representation of children prior to the pursuit of the role, and lack of expertise outside the issues of law. However, many similar arguments; except for the issue of expense, can be made against the use of lay volunteers (U.S. Dept of Health and Human Services, 1981). In addition, there are several other issues relating to the problem of independent representation which will be explored in this thesis including the type of representative used in the judges' jurisdictions, how and why lay volunteers are used when the law requires the use of legal counsel, who best serves the role of independent representation, whether lawyers are inappropriate for the role, and the advantages of the chosen representative. The study will also investigate whether compensation is adequate for legal counsel, and if it is not, whether being 15 under-compensated influences the lawyers' degree of involvement. Lastly, this thesis will study opinions toward Michigan's Child Protection Act. As stated previously, the Act has been criticized for lack of concrete definitions which allows for excessive discretion in interpretation among individual counties. The opinions of those who are subject to the provisions under the law, including judges, will be sought to evaluate the effectiveness of the law. 1.7 RATIONALE OF THE STUDY In the past decade, the issue of independent representation has become a growing concern among researchers and authors, primarily due to the many controversies and unanswered questions which surround the issue. For example, the question arises over the necessity of representation. While many proponents argue that independent representation for children who have been allegedly abused is a constitutional right which children should not be denied, other authors believe that the provision of court-appointed legal counsel as independent representation for every proceeding is excessive since, children do not need to be legally represented in every instance (Fraser, 1976; Fraser, 1977; Genden; 1976; Guggenheim; 1984). The prior research has not been able to resolve the numerous controversies and questions surrounding the 16 subject. Although there are a number of researchers interested in studying independent representation, researchers have not been able to form a consensus concerning the issues. By studying the issues related to independent representation, this thesis is intended to add to the developing pool of resources currently available. The information gained through analysis of opinions of Michigan Probate Court judges and other members of the judicial proceedings should be useful in gaining insight to issues which are conflicting among researchers. Findings from this exploratory study of judicial opinions will enhance further research on the use of independent representation and the best interests of the child. However, due to the limited study setting, the findings of this research can not be generalized outside of the parameters of the research. The intention of this study is only to reveal opinions, and formulate conclusions, based upon the population of Michigan Probate Court judges and a select group of court participants. 1.8 RESEARCH QUESTIONS The exploratory and qualitative design of this study requires the formulation of research questions in lieu of specific hypotheses. Since exploratory research is designed to build theory and not test it, hypotheses are not necessary for conducting research (Dooley, 1984: 273). There are several primary and secondary research questions 17 to be pursued in the study. These questions have been formulated based upon initial review of the literature and on an analysis of the issues of greatest conflict and confusion to both researchers and practitioners. The purpose of these research questions is to develop a framework for the study. The following questions are of primary interest in the study of probate court participants' opinions on independent representation. * Do the respondents believe there is a need for independent representation of children in abuse/neglect proceedings? * How do the respondents measure the best interests of the child when such an ascertainment is necessary? * How is the role of representative practiced in the respondent's jurisdiction? * Do the respondents believe that one type of representation, i.e. court-appointed legal counsel, is more suitable for the role than lay volunteers? * What do the respondents think of Section Ten of the Child Protection Act? Does the Act clearly define the roles and responsibilities of legal counsel? Does the wording of the law affect representation? How would the respondents modify the law if given the chance? * What are the circumstances surrounding the use of lay volunteers in Michigan since Michigan law requires the appointment of legal counsel. Are there instances 18 when lay volunteers work with counsel? * Are other members of the judicial process (prosecutors, attorneys for the parents) inappropriate to represent the child? * Are court-appointed attorneys appropriate to represent the child? In addition to these primary questions, several secondary questions will be examined. * Do the respondents believe that compensation received by legal counsel affects representation? * Do the respondents believe that the wishes of children should be expressed by the child's representative if these wishes conflict with what the representative perceives to be in the child's best interest? * Is the role of independent representative welcome in the probate court? * Do the respondents perceive any advantages in using one type of representative, i.e., legal counsel, rather than lay volunteers? 1.9 OVERVIEW OF THE STUDY The purpose of this study is to examine the use of independent representation for children in abuse/neglect 19 proceedings and Section Ten of the Child Protection Act. The following chapters will report the progression of the research toward the completion of this thesis. Chapter II will contain a review of the relevant literature regarding the issues of independent representation previously discussed in this chapter. The chapter will evaluate other research studies which were designed to assess the need for independent representation. Additionally, the chapter will include a brief description of the development of the probate court, court cases relevant to independent representation and the best interests of the child, Michigan Probate Court procedures for children who have been allegedly abused or neglected and an explanation regarding why independent representation by court-appointed legal counsel for children is both a necessity and a constitutional right. Chapter III will define the research design undertaken for this thesis. The chapter will discuss the study population, the pilot study conducted, the collection of data and how the data will be analyzed. Chapter TV will report the findings from the research. 20 Chapter V will summarize the study, discuss the conclusions which can be drawn based upon the findings and make recommendations for future studies. CHAPTER TWO REVIEW OF THE LITERATURE 2.1 INTRODUCTION . A review of relevant issues pertaining to independent representation will be undertaken to understand the issue and why its use within the probate court is problematic. In the following literature review, the justification for the necessity and constitutional right to independent representation by court-appointed legal counsel will be explored. In addition, relevant issues as conflict of interest, ambiguous use of terms and lack of consensus among writers regarding independent representation will be explored. The literature review will begin with a brief discussion of child abuse and end with a review of empirical studies conducted relating to independent representation. The literature review is intended to present the issues which were the foundation for the formulation of the research questions for this study. 2.2 HISTORICAL OVERVIEW 2.2.1 BRIEF DISCUSSION OF CHILD ABUSE The first public outcry against parental abuse occurred in the 1870's with the case of Mary Ellen, a child who was beaten and neglected by her adoptive parents. Members of the local church community, lead by nurse Etta Wheeler, wished to help Mary Ellen but were unable to convince the local authorities to intervene on behalf of the child. Finally, the 21 22 community appealed to the newly formed Society for the Prevention of Cruelty to Animals to protect Mary Ellen on the grounds that she, as a member of the animal kingdom, was protected under the laws against animal cruelty. Mary Ellen's abuse instigated the subsequent establishment of the first Society for the Protection of Cruelty to Children in New York City in the mid-1870's (Areen, 1975; Radbill, 1968: Trojanowicz & Morash, 1983). Nearly a century passed before professionals in the medical field attempted to define the problem and begin to develop means for preventing the continuation of child abuse. During the 1960's, pediatricians and radiOlogists, prompted by the frequent observation of bone injuries, began to seriously investigate why the injuries were occurring, in an attempt to prevent them. In 1962, Kempe and his associates published an article in which they reported on clinical conditions of children who had suffered from serious physical abuse. The article described the phenomenon of "the battered-child syndrome", and is regarded as the first recognized report on the relationship between children's injuries and parental abuse (McPherson & Garcia, 1983). One of the central problems within the issue of child abuse is the lack of consensus on a definition of abuse and neglect. Fraser, in a hearing before the United States House of Representatives in 1974, said that, "the problem is many people view the problem from different angles and they all feel their definition is correct...From a practical point of 23 view there is no consensus from State to State as to what is the definition of abuse" (U.S. House of Representatives, 1974: 21). In addition, as previously stated, Kempe, Silverman, Steele, Drogemueller, and Silver were the pioneers in the development of a definition for child abuse. Using the term battered-child syndrome, they defined child abuse as, "a clinical condition in young children who have received serious physical abuse, generally from a parent or foster parent" (Kempe et al. 1962: 105). This definition is too narrow in scope, however, since it only refers to physical abuse to the exclusion of other forms of abuse, such as emotional and sexual abuse, and does not recognize any form of child neglect. 2.2.2 FORMATION OF PROBATE COURT To understand how the matter of child abuse became an issue within the probate court system, a brief digression into the formation of the probate court is necessary. The current juvenile courts in the United States are an amalgamation of philosophies and movements whose roots can be traced back to the first juvenile court, which was developed at the turn of the century. The Progressive reformers and the child savers of this early era advocated for a change in the :methods by which delinquent and dependent children were handled by the state (Platt, 1969; Rothman, 1980). The Supreme Court (In re Gault, 387 U.S., 1, (1966) at 15). 24 found that, "the early reformers were appalled by adult procedures and penalties..." The reformers began to realize that a less formal tribunal was needed to understand and treat the problems affecting children (Nicholas, 1961: 159). During the mid-to-late half of the 1800's, these reformers organized several different institutions to protect children from the then current societal abuses as practiced in adult jails and almshouses for the poor (Platt, 1969; Rothman, 1980). The reformers' actions culminated in the formulation of the first juvenile court in Cook County, Illinois in 1899. The philosophy of the original juvenile court was a court which was non-punitive, non-adversarial and therapeutic, a super-parent. The new court was to act as a socio-legal institution whose goals were the protection and guidance of children (Bortner, 1982; Clark, 1968). The reformers rejected the adversarial procedures of the criminal court, since the juvenile, unlike the adult offender, was not an enemy of society. Juveniles were viewed as society's children in need of understanding and guidance (Handler, 1965: 10). The purpose of the new court was to help and protect, not punish (Nicholas, 1961: 159; Tunhill, 1973). Since the court was to be a protective court and not a criminal court, the procedural safeguards in criminal proceedings required in the adult court were viewed as unneceSsary by the proponents of the new court. The style of the courts was to be relaxed and non-adversarial, therefore tflae presence of a lawyer and the jury were deemed 25 inappropriate, as were other issues of due process rights. Central to the philosophy of the early juvenile court was the ideal of Parens Patriae, which gives the state the power to act as a parent to a child (Rothman, 1980: 212). Parens Patriae can be traced back to the English laws of equity. Under Parens Patriae, courts of high chancery were afforded the responsibility of the crown to protect the property and interests of the child when these interests were threatened (Pursley, 1980). The court, as the sovereign power, had both the right and the obligation to intercede and protect any citizen whose legal capacity was reduced through lack of age and understanding (Clark, 1968: 3). The developers of the juvenile court interpreted Parens Patriae as a doctrine which gave the state the power to intervene for the welfare of the child (Rothman, 1980). The meaning of Parens Patriae was molded to justify the broad discretionary power of the state over children (Clark, 1968: 3). Parens Patriae undercut the absolute power of the parent and justified state intervention into the parent-child relationship. Intervention by the state is justified on the belief that the state will protect those who are unable to protect themselves and that the state has the power to compel parents and children to behave in ways most beneficial to society (Bell, Graham & White, 1975: 1076). The state assumed tflie power to act as a substitute parent on behalf of those children whose parents defaultedin their parental obligations to nurture and protect their children. Just as 26 the chancery courts acted in the name of the crown, the juvenile courts acted on behalf of the state with the juvenile court judges given full power to execute the actions - of the court. The ideal of Parens Patriae rationalized the rejection of the adversarial process under the belief that i the interests of both the state and the child coincided and thus criminal adversarial procedures were unnecessary (Handler, 1965: 10). 2.3 Criticism of Probate Court After over one half century of operation, a new wave of reform swept through the juvenile justice system during the 1960's. During this time period reforms were occurring in the adult areas of the criminal justice system as well. Many critics of both systems made accusations of abuses by members of the system, such as judges, prosecutors and correctional officials. The growing civil rights movement stimulated a new age of reform. The juvenile court, like its adult counterpart, was charged with failing to reach its ideals. One of the most significant reasons alleged for this failure was the inherent inconsistencies within the court itself. The benevolent ideology of the probate court was so imbued throughout the system that no one considered the possibility that its basic assumptions may be faulty or that court intervention might do more harm than good (Empey, 1982: 305). A second criticism of the court pertained to the 27 ideology of Parens Patriae. The underlying assumption of the original reformers, that the state could protect the child to such a degree that due process protections were not necessary, was no longer accepted without question (Elson, 1962: 95). The philosophy of Parens Patriae, which justifies the denial of procedural due process procedures for the child under the guise of protecting the child from the adversarial process of the adult court, was viewed as widely discretionary (Wilcox, 1976: 920). In their eagerness to help 'the child, the reformers are accused of overlooking basic considerations regarding responsibility and standards of due process. This lack of fairness and judicial responsibility toward the child is said to have lead to wide judicial discretion and capricious decision making (Handler, 1965: 8). (The ideal of due process will be returned to as rationale for legal independent representation for the child is section 2.5.2) Lastly, the idea of the juvenile court as a rehabilitative body has never been fully accepted by those who do not believe that rehabilitation is consistent with the actual functions of the court. Although the court was developed to act as a non-punitive substitute parent, in actuality, the juvenile court has been perceived by many critics as a junior criminal court (Clark, 1968). 2.4 OVERVIEW OF MICHIGAN PROBATE COURT PROCEDURE To understand the role of independent representation in Michigan's probate court, the rules and procedures directly 28 relating to abuse/neglect proceedings will be discussed in this section. In Michigan, child protective proceedings are initiated through a petition to the court to assume jurisdiction over a child. Section 27.3178 (598.2) of Michigan Statutes Annotated states that Michigan probate courts can assume jurisdiction for any child under the age of 17, "Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent guardian, or other custodian, is an unfit place for the child to live in". Although anyone can petition the court, the individuals who most commonly petition the court are protective service workers and teachers. As directed in Michigan Rules of Court, Rule 5.961, a petition must contain the following information, if the information is known: 1) the child's name, address, and date of birth; 2) the names and addresses of: a) the child's mother and father, b) the parent or person who has custody of the child, if other than a mother or father, c) the nearest known relative of the child, if no parent can be found, and d) any court with prior jurisdiction; 3) the essential facts which constitute an offense against the child under the Juvenile Code: 4) a citation to the section of the Juvenile Code relied upon for jurisdiction; 5) the child's membership or eligibility for membership in an American Indian tribe or band, if any, and the identity of the tribe; 6) the type of relief requested, including whether temporary or permanent custody is sought. Michigan Rules of Court, Rule 5.962, states if a 29 petition is not accompanied by a request for placement of the child, the court may conduct an informal review to determine the appropriate action on a petition. At the preliminary inquiry, the court may: 1) dismiss the complaint or deny authorization of the petition, 2) refer the matter to alternative services, or 3) authorize the filing of a petition and place the case on the formal calendar if it appears that formal court action is in the best interests of the parties and the public. In certain instances, the child is taken into temporary emergency protective custody at the time the petition is filed if there are reasonable grounds to conclude that the health, welfare, or safety of the child is in immediate danger (Michigan Rules of Court, 5.963). (Michigan Rules of Court Rules 5.962 and 5.963 were ordered exactly as they appear in the court rules manual). Michigan Rules of Court, Rule 5.965, discuss the details of the preliminary hearing which follows the filing of the petition. A preliminary hearing must commence no later than 24 hours after the petition has been filed and the child has been taken into emergency custody, excluding Sundays and holidays, unless the case has been adjourned for good cause shown, or else the child must be released. It is during the preliminary hearing the court appoints an attorney to represent the child in court proceedings. At the preliminary hearing, a respondent may make a plea of admission or no contest to the charges after being informed of their rights to counsel and to a trial. 30 The trial, or adjudicatory phase, follows the preliminary hearing. During the adjudicatory phase the court decides whether or not to continue assuming jurisdiction and make the child a temporary ward of the court. The adjudicatory trial is a formal hearing in which the allegations of abuse are read and witnesses are called. This trial must be held within six months after the filing of the petition if, at the preliminary hearing, the court did not determine that the allegations necessitated the removal of the child from the home. If the child has been removed from the home and is in the placement of the court, the trial must begin as soon as possible but no later than 42 days after the child has been placed unless the trial has been postponed (Michigan Rules of Court, 5.972). Following an adjudicatory trial, a dispositional hearing is conducted to determine what measures the court should take regarding the child if the child has been made a temporary ward. According to Michigan Rules of Court, Rule 5.973, if a child is not placed in the custody of the parent during the dispositional hearing, dispositional review hearings must be conducted every six months to determine the status of the child. If the child is placed in the custody of the parent during the dispositional phase, review hearings are conducted at the discretion of the court. Parental rights over the child can be terminated at the initial dispositional hearing or any of the review hearings which follow. Rule 5.974 states that the court can terminate parental rights if such 31 termination is in the best interests of the child. 2.5 THE IDEAL OF INDEPENDENT REPRESENTATION The ideal of independent representation for children in abuse/neglect proceedings has been slowly gaining acceptance within the literary, legislative and judicial forums within the last three decades. A further extension of the argument, that court-appointed legal counsel should independently represent children in these proceedings, has also been embraced by those concerned with protecting the rights and interests of children in abuse/neglect proceedings. There are several persuasive arguments for the use of independent representation by court-appointed legal counsel in abuse/neglect proceedings. These arguments include the necessity of independent representation for the protection of the best interests of the child and the constitutional argument for court-appointed legal counsel. In the following sub-section the reasons for the necessity of independent representation will be introduced. The judicial arguments for the use of court-appointed legal counsel as independent representative will be introduced in the subsequent sub-section. 2.5.1 NECESSITY OF INDEPENDENT REPRESENTATION A strong argument can be made for the necessity of independent representation of children in abuse/neglect 32 proceedings. The present composition of the court warrants the need for someone to represent the individual interests of the child within the proceedings. No one else in the court proceedings is appropriate to represent the unique interest of the child. Any attempt to represent both the child and other members of the proceedings, i.e. respondent &/or petitioner, would be a conflict of interest. Fraser (1977: 463) states that, "the child, by nature of the act and nature of the proceedings, is entitled to a spokesman and an advocate who can totally, unequivocally, and actively pursue his rights and his interests". In judicial proceedings, there are at least three attorneys involved, that is, the judge, the attorney for the state and the attorney for the parent/respondent (Fraser & Martin, 1976: 172). Although probate court proceedings were originally designed as non- adversarial, the relatively recent introduction of legal counsel for both the respondent and the petitioner has changed the nature of abuse/neglect proceedings from inquisitorial to adversarial (Becker, 1971: 258). Thus, any argument asserting that independent representation for children would change the mood of the proceedings from friendly to adversarial in no longer valid. At one time it was believed that the collective attorneys could more than adequately represent the child. However, current consensus dictates that this is no longer the case since all three parties are believed to have interests which conflict with those of the child. Within the 33. past few decades there has been an increased awareness within both the academic and legislative forums that the roles and responsibilities of judges and legal counsel for both the petitioner and the respondent do not fully represent the interests of the child and that, "...there is a clear and demonstrable need to provide the child with independent representation in abuse and neglect proceedings" (U.S. Dept. of Health and Human Services, 1980: 2). In abuse/neglect proceedings the petitioner is most often a service worker from either a public or private agency, although on occasion, a teacher may also file a petition. When petitions are filed on behalf of a child by an agency, most often the abuse/neglect complaint is investigated by the agency and deemed valid prior to the filing of the petition (Wald, 1975: 988). Once an abuse petition is filed, the child becomes a temporary ward of the court. Thus, it is the judge's responsibility to protect the child's interests and safety (Fraser, 1977; Fraser & Martin, 1976; U.S. Dept. of Health and Human Services, 1980). However, the judge cannot actively pursue the child's interest without destroying the impartiality that is required of the judge in his role as arbiter of the case (Fraser & Martin, 1976: 172: Fraser, 1977: 162; U.S. Dept. of Health and Human Services). At the time of the petition, the accusation of abuse has not been resolved. It is the court's/judge's responsibility to listen to both sides and render an equitable decision. A judge who actively advocates 34 for the best interests of the child negates his ability to deliver a fair and judicious decision (Fraser, 1978: 680) Issacs (1972: 229), stated that, "...the judge cannot adequately serve as protector of the legal and social interest of the child without seriously sacrificing the appearance of impartiality". Thus the judge, who is given the responsibility of protecting the child, must temporarily transfer this role to an impartial third party (Fraser, 1977: 462). The prosecutor is also inappropriate to represent the interests of the child. Even though the prosecutor is the attorney for the state, within the probate court, his/her role is also presumed to represent the petitioner. In many jurisdictions, the prosecutor is believed to be a conduit to the courts for the agency filing the petition (Fraser, 1976; U.S. Dept. of Health and Human Services, 1980: 2). It is the prosecutor's job to protect the interests of the petitioner. In many instances, the interests of the petitioner may conflict with the child's interests (Fraser, 1976; Myers, 1985; U.S. Dept. of Health and Human Services, 1980). The interests of the petitioner may not be the same as the interests of the child. Unfortunately, the interests of the agency may be based upon the factors other than the best interests of the child, such as availability of resources and cost of treatment (Fraser, 1976: 32). An additional reason why the prosecutor is inappropriate to represent the child is inherent within his/her role. The 35 role of the prosecutor is adversarial, at least during the adjudicatory phase (Fraser, 1977: 462). The primary responsibility of a prosecutor is to prove the allegations within the petition, in addition to representing the community and the interests of the child. It is the role of the prosecutor to establish, and then prove, the allegations stated in the petition (Fraser, 1977; U.S. Dept. of Health and Human Services, 1980). Once the petition is filed, the attorney for the petitioner assumes a quasi-prosecutorial role in which his/her primary emphasis is to attempt to prove the perpetrators' culpability and not representing the best interests of the child (Fraser, 1976: 33; Fraser & Martin, 1976: 173; Issacs, 1972: 229). The attorney for the respondents would also be an inappropriate advocate for the child. When the respondents are the parents, it is the responsibility of their attorney to represent their personal interests. Most often the parents' attorney is trying to show that no abuse or neglect has occurred in order to preempt severance of parental rights and the placement of the child outside of the home. In addition, the parents may have an interest in avoiding being labeled as "child abusers". Thus the parents' attorney may attempt to show that the abuse did not occur simply to elude the stigma of abuse. Since the child's interests of a safe and secure environment are often in direct conflict with the parents' personal interests, the parents' attorney is not able to effectively represent both the parent and the child 36 (Becker, 1971: 258; Fraser & Martin, 1976; Issacs, 1972: 229; U.S. Dept of Health and Human Services, 1980: 2). 2.5.2 CONSTITUTIONAL ARGUMENT FOR LEGAL COUNSEL While the argument for necessity of independent representation for the child is compelling, the constitutional right to independent representation by legal counsel is even more compelling. The arguments for a constitutional right to counsel both the literary and judicial forums for over three decades. It has been argued that the due process protections found within the 5th, 6th, and 14th Amendments are applicable to children in abuse/neglect proceedings for three important reasons. Firstly, it has been argued that children in abuse/neglect proceedings have a due process right to counsel since such proceedings potentially deny children of their liberty through change of custody. Secondly, children have a right to the protection of legal counsel on the basis of the right to a fair hearing. Lastly, since the parent/child relationship has been found to be a fundamental relationship by the Supreme Court of the United States, any actions which jeopardize this relationship are subject to due process protections, including the right to counsel. During the late 1950's, a number of constituents within the juvenile court grew critical of the court philosophies and procedures regarding the treatment of juveniles who came 37 before the court. Several judges became aware of the possibility that the court philosophy of Parens Patriae, instead of protecting children and treating them through guidance and understanding, actually disserviced children by withholding the constitutional protections afforded to adults within the criminal court (Alexander, 1962). An important consequence of this critical reevaluation was the shift away form the belief that legal, independent representation for children was not necessary (Issacs, 1972; 227). Although the founders of the juvenile court did not believe that the adversary system of the adult court nor protections of due process were necessary within the new court, the ideals of the forefathers of the court did not withstand the test of time. Ketchum (1962: 24) lamented, "Performance, rather than good intentions, must be the standard by which to judge the success of juvenile courts today". In addition, a judge in the District Court of the District of Columbia (U.S. v. Dickerson, 168 F, Supp. (1958) at 901) recognized the injustice within the juvenile courts when he said: Ineluctable logic leads to the conclusion that the constitutional protection against double jeopardy, as is the case with the right of counsel and the privilege against self-incrimination, is applicable to all proceedings, irrespective of whether they are denominated criminal or civil, if the outcome may be deprivation of liberty of the person. Necessarily, therefore, this is true of proceedings within the Juvenile Court. ' Although the realization of the injustices occurring 38 within the probate court spread throughout the late 1950's, it was not until the reform movements of the 1960's that change began to take place within the court. The issue of due process for the child was central to the reform movement of the 1960's. The Supreme Court (In Re Gault 387 U.S. 1 (1966) at 17) felt that a consequence of the original court philosophy was the belief that, "the right of the state, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right 'not to liberty but to custody'". However, it has already been acknowledged that the court has fallen short of its "fatherly" ideals. As stated by the Supreme Court during the 1960's (Kent vs. United States, 383 U.S. 541, (1965) at 556): There is evidence, in fact, that there may be ground for concern that the child receives the worst of both worlds; that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children. In response to the growing concern of the denial of the constitutional right to due process, the Supreme Court of the United States handed down its landmark decision of In Re Gault (387 U.S. 1). In 1966, the Supreme Court of the United States recognized, in the landmark case of In Re Gault, that children in delinquency proceedings were being denied several of the constitution rights afforded to adults. In Gault, the 39 Court found that Gerald Gault had been denied four fundamental constitutional rights during his juvenile court proceeding (Clark, 1968). As a result of this decision, juveniles are now entitled to: notice of charges; right to counsel; right to confrontation and cross-examination of witnesses; privilege against self-incrimination. The rationale of the Court for their decision was that the impaCt of delinquency proceedings is analogous to the impact of criminal proceedings. Therefore, juveniles are entitled to the same constitutional safeguards afforded to adults (Clark, 1968: 19). The Court's findings affirm the notion that the goals of the juvenile court do not justify the denial of certain due process protections, including the right to counsel, in delinquency proceedings (Pedicord, 1976: 440). The power of Parens Patriae can no longer be regarded as a blank Check with regards to the juvenile court's treatment of juveniles (Foster & Freed, 1972: 346). Although the Gault ruling was directed toward delinquency, and not abuse/neglect proceedings, it is argued that the implications of the ruling should be extended beyond the scope of delinquency and applied to all cases within the juvenile court (Inker & Perretta, 1971: 113; Genden, 1976: Guggenheim, 1984; U.S. Dept. of Health and Human Services, 1980: 4). Although the Court found in Gault that juveniles are entitled to four fundamental due process protections, the discussion of the application of due process protections for children within abuse/neglect proceedings will be limited to 40 the right to counsel. Genden stated that, "... because Gault expresses a very strong belief in the importance of counsel in our judicial system, its holding may be capable of extension far beyond its stated limitations" (1976: 582). Inker & Perretta (1971: 113), discussing the child's right to counsel in custody proceedings said that, "since Gault recognizes that children have constitutional rights in juvenile proceedings it would seem logical that a dynamic system would extend those protections to all juvenile proceedings involving children". The most significant reason that the due process protection of right to counsel should be applied to children in abuse/neglect proceedings is the 5th and 14th Amendments protection against loss of liberty. Children have a constitutional right to counsel in any proceeding which threatens a depravation of liberty, including abuse/neglect proceedings (Genden, 1976: 581). The placement of the child is of extreme importance to the child since both his/her life and his/her liberty may be at stake. The same reasons that applied the right to counsel in delinquency proceedings also apply to the issue of placement (Foster & Freed, 1972: 357). At the adjudicatory stage of abuse/neglect proceedings, the temporary custody of the child is in question. Children may be removed from their homes and placed in the custody of the court if the court believes that the child is in danger of further abuse prior to disposition of the case. When a child is removed from his/her home and placed into some type of 41' institution (i.e. foster home, group home or detention center) the child's liberty is in jeopardy to a degree which requires the application of due process protections (Milmed, 1974: 180). Milmed (p.180) stated: ...because the basic restraint upon the child's liberty is identical when for any reason he is placed in the custody of an institution, the protections of due process should attach whenever institutionalization is possible, regardless of the nature of the proceeding. Thus, independent representation by legal counsel for children in abuse/neglect proceedings is not only a necessity but a constitutional right under the 5th and 14th Amendments right to due process due to the potential loss of liberty. The 14th Amendment guarantees that no state can deprive a person of liberty without due process of law. Since probate courts are acting in the name of the state, the courts can not deprive children of liberty without the right to counsel. The due process clause requires that everyone who comes before the court has a right to a fair hearing. Children in abuse/neglect proceedings have the right to legal counsel because such counsel is necessary for children to get a fair hearing (Bell, Graham and White, 1975: 1092). The Supreme Court has held that the fair hearing requirement has been denied to anyone who is forced to defend themselves without the assistance of legal counsel in criminal proceedings {(Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama 287 U.S. 45 (1932) as discussed in Bell, Graham and 42 White}. The right to counsel as a adjunct to a fair hearing is based upon the notion that lay persons are not able to competently represent the individuals best interests in judicial proceedings. A compelling argument can be formed pertaining to a child's inability to protect his/her own interests or make the court aware of his/her interests without the assistance of counsel (Bell, Graham & White: 1092). Genden (1976: 582-583) stated that: Due process and fundamental fairness require that these interests be protected for the child as they are for an adult-by means of counsel. Since the right to counsel means the right to effective counsel, the conflicts present in the situations where counsel is required for children demand that separate and independent counsel be provided. Parents have the primary responsibility of caring for their children and the right to bring up their children as they wish without state intervention. However, the state, under the umbrella of Parens Patriae, has the right to intervene when the safety of the child is at stake (Singleman, 1975; Kleinfeld, 1971). The parent/child relationship is a status right that can be altered by the state based upon societal concerns for the protection of the child. The Supreme Court has affirmed that the continuance of the parent-child relationship is a fundamental right, and thus subject to the protections of due process. The Court has shown that the parent-child relationship is fundamental to society. A parents' right to the custody of the child is a liberty which can not be denied without due process 43 (Singleman, 1975: 1062). Since an adjudication of abuse or neglect may be a substantial interference by the state into the parent/child relationship, such actions should only be done under the protection of due process (Becker, 1971; 251). Even though the Supreme Court has not affirmed the child's constitutional right to counsel, since the Gault case, several lower courts have found that the parent-child relationship is a fundamental right and subject to due process protections (Becker; Singleman). Thus, since interference into the family life is a fundamental right protected by due process, both parents and children have the have a right to counsel in any proceedings which interfere within the normally private domain of the family. In conclusion, it can be argued that children in abuse/neglect proceedings have a constitutional right to independent representation by legal counsel. Although the Supreme Court has yet to rule in this matter, it can be asserted that the issues of liberty, fair hearing, and the fundamental right of the parent/child relationship are protected under the due process clause (Bross, 1985). Under the guise of due process protections, children in abuse/neglect proceedings have the constitutional right to independent representation by legal counsel. Since in most instances children are not able to obtain legal counsel on their own, the court must provide children with legal counsel. Many states, including Michigan, have acknowledged the child's right to counsel and have enacted legislative 44 mandates requiring the appointment of counsel for children in abuse/neglect proceedings. 2.6 THE BEST INTERESTS OF THE CHILD Judicial decisions regarding the adjudication and ,disposition of abuse/neglect cases are most often made based upon the notion of the best interests of the child. The doctrine of best interests is utilized whenever a decision must be made regarding the custody of a child. The best interest test, which originated within divorce litigation concerning custody arrangements, involves weighing two competing home environments against each other. It is the state's responsibility to determine which living arrangement would be in the best interests of the child (Thomas, 1974). This doctrine has been applied to abuse/neglect proceedings and requires of the individual who is acting in the 'best interests' of the child to advocate the living arrangement which is most beneficial for the child. Although it may be impossible to identify all the issues which are inherent in the ideal of the best interests of the child, there are several factors that the courts do consider when determining best interests in divorce custody suits. These factors include the sex, and health of the child; type of home environment, education and religious training the potential custodian may provide; the wishes and considerations of the child; and the fitness of the potential custodian (Devine, 45 1975: 305-307). Although divorce custody suits differ from abuse/neglect proceedings of custody in that parents are not competing against each other for the right to custody but instead are often fighting for the right to keep their children, many of the factors listed above can be assumed to be of importance within abuse/neglect proceedings. The interests of the state and of the parents must be addressed when discussing the best interests of the child when the issue of custody for the abused child is at stake. The interests of the parents are clearly addressed within the law. Parents are traditionally given the authority to raise their children without court intervention. The majority of state statutes support the parents right to raise their children as they wish (Areen, 1975: 892-893). Although parental power is a recognized right, both the Supreme Court and lower courts historically have exercised the right to interfere in parental discretion, e.g. the issue of education for the child. The scope of parental discretion dissipated as education became largely a matter of state action (Kleinfeld, 1970: 414). In one case (Ex Parte Crouse, 4 Whart. 9 (Pa.1838)) a lower court found that, "the right of parental control is a natural, but not an inalienable one". When parents abuse their rights of control to the point in which laws are broken, the state has the power to intervene. When parental power is asserted through abuse or neglect of the child, the state has the power to intervene on behalf of the child (Kleinfeld). Over time, the state, through the power of 46 Parens Patriae, has been given a great deal of legislative power to intervene upon the family. The state, through legal sanctions, acts as the primary protector of children in cases of abuse and neglect (Areen, 1975: 893). Thus the state, in the name of Parens Patriae, has the power to intervene upon the family in cases where it has been alleged that parents have broken any law designed to protect the child from abuse or neglect. There are several problems with the application of the best interests test toward abuse/neglect proceedings. First, the best interests doctrine potentially conflicts with the philosophy of Parens Patriae (Wilcox, 1975-76: 924). The best interest test asks the court to decide which living arrangement would be in the best interests of a child. In abuse cases, more often than not, it would be in the best interests of the child to be placed outside of the home. However, the state, has a strong interest in preserving the autonomy of the family (Areen, 1975: 893). In Michigan, court policy has mandated that it is the objective of the court to maintain family unity for all but the most compelling cases (M.S.A 27.3178(598.l)). Therefore, the best interests test may conflict with the court philosophy of Parens Patriae. Although the two theories overlap, Parens Patriae bestows upon the court a greater degree of discretion (Wilcox, 1975-76: 921). While the standard of best interests of the child gives priority to the child, the ideal of Parens Patriae gives the state absolute 47 power. Strict adherence to the philosophy of Parens Patriae obfuscates the priority of the child (Inker & Perretta, 1971: 111). This conflict has been witnessed within Michigan's Appellant Courts in In re McCullough, (141 Mich App 170). In this case, the court found that although it is state policy to keep children with their natural parents as much as possible, the best interests cf the child take precedent over legal policy. That is, child's best interests must be considered when making dispositional decisions. The ruling of In re McCullough diminishes the courts power and places greater emphasis upon the child. Thus, in order to render a decision which is in the best interests of the child, the court may have to act in a manner which repudiates its own philosophy. Even though the outcome of the ruling contradicts the position of the writers who believe that the child loses in the conflict between best interests and Parens Patriae, the case exemplifies that a conflict does exist and that one position must take precedence over another. Although the interests of children must take precedence over court policy in Michigan, in other states childrens' interests may be forfeited by state policy. In addition, the best interests test has been criticized for being too subjective since the test itself does not provide standards for decision making regarding the disposition of cases (Thomas, 1974: 70). Thus the test, when used for determining adjudicatory and dispositional hearings, 48 allows judges a great deal of discretionary power. Thomas argues that the application of the best interest test is inappropriate for abuse/neglect cases (Thomas, 1974). Thomas contended that abuse cases differ since the rights of the competing parties are not equal, as in the case of divorce custody hearings. In custody hearings the rights of both parents are weighed equally. In abuse cases, however, the rights of the parents and the rights of the petitioner are not the same. In abuse cases, the parents have not voluntarily presented themselves within the jurisdiction of the court but were forced into the jurisdiction by the petitioner. In addition, the State is part of the proceedings in the abuse case while remaining independent within the proceedings in custody cases (Thomas, 1974: 69). Although the two proceedings are different, the main issue of dispute within both cases is custody of the child. Since the main concern of the best interest test is deciding what is best for the child, the type of proceedings into which the test is applied is irrelevant. Although it must be conceded that the issue of vagueness is a problem, the application of the best interests of the child ideal should not be considered displaced in abuse/neglect proceedings. 2.6.1 SUPPORT FOR INDEPENDENT REPRESENTATION Withstanding any criticisms or shortcomings, the best interest test is still the most valuable doctrine for decision making in the probate court in regards to custody of 49 the child (Wilcox, 1976: 924). In addition to its acknowledged usefulness regarding custody, the fulfillment of the best interests test is a testimonial for both the necessity of and right to independent representation by legal counsel for children in abuse/neglect proceedings. Several writers contend that independent, legal representation for children is necessary in every issue in which the custody of the child is in question, i.e. divorce litigation or abuse/neglect proceedings, in order to fulfill the requirement of child's best interests. In regards to divorce litigation, several writers contend that the procedural safeguards of the due process clause require that children be heard by legal counsel in custody proceedings assuming that these children have interests at stake that are within the scope of due process. The substantive law of best interests within custody disputes demands that the interests of the child be independently represented. In addition, the due process clause requires that this representation be in the form of legal counsel (Devine, 1975; Inker & Perretta, 1971: Milmed, 1974: 183-184; Wilcox, 1975-76). Michigan has recognized that children in divorce litigation are substantially affected by the proceedings. Children under 17 wishing to contest a divorce which is not in their best interests have a due process right to counsel to contest the divorce on the basis of the substantive issue of best interests (Kleinfeld, 1970: 234). 50 Since children in divorce litigation are perceived to have a constitutional right to independent, legal representation based upon the doctrine of the best interests of the child, the same can be asserted for children in abuse/neglect proceedings. Becker (1971: 252) stated that in many respects abuse proceedings are analogous to divorce proceedings. If children in divorce litigation have a constitutional right to representation, than the application of due process protections is even more compelling for children in abuse/neglect proceedings. "Is not the child's claim upon the state in a neglect proceedings even greater than in a custody matter?" (p. 252). In sum, the doctrine of best interests for the child, although potentially vague, is admittedly the best doctrine by which to determine custody/placement of the child in abuse/neglect proceedings. In addition, the ideal of the doctrine, providing for the child whatever may be in his/her own best interests, illustrates both the necessity of and legal right to independent representation by legal counsel for the Child. 2.6.2 GUARDIANS-AD-LITEM Traditionally, the individual whose duty is to protect the best interests of the child is the guardian-ad-litem. Guardians-ad-litem can be traced back to early English and Roman common law, when guardians were appointed by the court 51. to protect infants and incompetents who were involved in judicial proceedings concerning inheritance of property or money (U. S Dept. of Health and Human Services, 1980). Most often, guardians-ad-litem assumed an adversarial role during these proceedings and defended children against allegations made by another party (Witcomb, 1988: 1). In today's probate court, guardians-ad-litem are most often used in abuse/neglect hearings, not property proceedings. Guardian-ad-litem is a term used to describe the individual who advocates the best interests of the child, whether the individual is a lawyer or a lay volunteer. Anyone who is appointed by the court and independently advocates the best interests of the child is a guardian-ad-litem. Currently, guardians-ad-litem are advocates for children. They represent children since children are legally incapable of initiating, defending, or functioning as a party in litigation (Witcomb, 1988: 1). Guardians-ad-litem are "special guardians" appointed by the court to represent children. Thus, as special guardians, they are not an advocate for the petitioner or the respondent. They are an amicus curiae, a friend of the court whose role is the protect the interests of the child (Fraser & Martin, 1976: 172). In the literature, guardians-ad-litem are also known as "next friends" or "special guardians" and the terms are often interchanged (Fraser & Martin; Iowa Law Review, 1960; Kleinfeld, 1970). The guardian-ad-litem has four basic functions, these include: a) an investigator whose 52 task is to ferret out all of the relevant information; b) an advocate whose task is to insure that all relevant data are presented to the court; c) a counsel whose task is to insure that the court has before it all of the viable dispositions: d) a guardian, in the simplest sense of the word, whose task is to insure that the child's present and long-range interests are fully protected (Fraser, 1977: 465; Fraser 8 Martin, 1976: 173). When a guardian-ad-litem is appointed by the court, he/she becomes a temporary officer of the court and is responsible to both the child and the court. A judge has the right to replace this court-appointed officer if the officer is not performing adequately (U. S Dept. of Health and Human Services, 1980). The role of guardian-ad-litem is obfuscated due to a lack of designation as to who should portray the role of guardian-ad-litem. Anyone without a vested interest in the court proceeding can act as a guardian-ad-litem. There is no requirement that the individual appointed as a guardian-ad-litem need be an attorney (Fraser, 1976: 30: Kleinfeld, 1970: 343; U.S. Dept. of Health and Human Services, 1980: 3). However, it is generally accepted among writers that guardians-ad-litem should be attorneys (Fraser 8 Martin, 1976; Iowa Law Review, 1960). "Logically, since his duty is the conduct of the case for his ward, the guardian-ad-litem should be an attorney" (Iowa Law Review: 385). Although writers recognize the necessity for guardians-ad-litem to be attorneys, legislative statutes 53 rarely require that guardians-ad-litem be attorneys (Iowa Law Review: 386). A conflict occurs within the role of guardian-ad-litem since its delegation does not ascertain who should portray the guardian, legal counsel or lay volunteer. Since it is recognized that independent representation by guardians-ad-litem is necessary for the best interests of the child, legislation which requires the appointment of guardians should precisely define who should independently represent the child. This conflict will be reiterated when the federal mandate regarding child protection is discussed in section 2.7. 2.6.3 MICHIGAN COURT CASES There are several Michigan Appellant and Supreme Court cases which have discussed the best interests of the child in abuse/neglect dispositional hearings. Only cases regarding dispositional hearings and the termination of parental rights have made it to appellate review (since court cases must exhaust all other court stages before they are eligible for. appellate review) and thus have the ability to formulate case law. Since it has been conceded that the ideal of best interests of the child is potentially vague because the doctrine does not stipulate what constitutes best interests, a review of these cases is necessary to understand what actions Michigan courts consider to be in the best interests 54. of the child. In re McCoullough, 141 Mich App 170, stated that the best interests of the child should be considered when making dispositional decisions concerning children. In the Matter of Sharpe, 68 Mich App 619, asserted that probate courts are given the power to make dispositional orders depending upon both court discretion and to obtain the best interests of the child. Although parents have a fundamental right to the custody of their children, the court found in In the Matter of LaFlure, 48 Mich App 377, that children have a right to a stable and decent environment and that the rights of children must be considered in addition to their parents when making dispositional orders. In the Matter of Kidder, 61 Mich App 451, stated that although parents have significant rights, the "overwhelming predominant factor" which should be considered is the child's welfare. In the Matter of Schejbal, 131 Mich App 833, the court found that the concept of the best interests of the child is the "polar star" for judicial decisions in cases concerning children. Since the court found "clear and convincing evidence" that the abuse occurred, the requirement for termination of parental rights under M.S.A. 27.3178(598.19a), the best interests of the child were relevant to the disposition of the children. There are several other Michigan court cases which have utilized the best interests of the child doctrine when deciding upon the disposition of a child. These cases include: In the Matter of 55 Atkins, 112 Mich App 528; In re Brown, 139 Mich App 7; In re Ernst, 373 Michigan Reports; In re Franzel, 24 Mich App 370; In re Futch, 144 Mich App 152; and In the Matter of Baby X, 97 Mich App 101, in which the rights of an unborn child were . decided based upon the child's best interests. 2.7 LEGISLATIVE MANDATES Since the 1970's there has been a resurgence in the concern over the issue of child abuse. One response to this concern has been the passage of several legislative acts to address the problem of abuse. On the Federal level, Congress enacted the Child Abuse Prevention and Treatment Act (P.L. 93-247) in 1974. This Act was the first piece of federal legislation which linked the states' acquirement of federal funding within the welfare service field to the states' provision of independent representation for children in abuse/neglect proceedings (DavidsOn, 1981: 20). The Federal Act and the many state legislative mandates which followed its enactment have increased the ambiguity of the position of guardian-ad-litem. Although formulated out of good intentions, many of these laws have resulted in a confusion within the probate courts as to who should represent the child and what the role of independent representation should entail. Most often, legislative statutes which require that the appointment of legal counsel do not define the scope of counsel's responsibilities but merely state that counsel should act as a guardian-ad-litem 56 (Kelly 8 Ramsey, 1982-83: 411)). This confusion is a central problem for those designated to independently represent the child. For example, Section Four of P.L. 93-247 (1974) requires that any state seeking a grant for programs on child abuse and neglect, " ... provide that in every case involving an abused or neglected child which results in a judicial proceeding a guardian ad litem shall be appointed to represent the child in such proceedings". The Federal mandate does neither distinguish whether the guardian-ad-litem ought to be a lawyer, nor does the mandate require that legal counsel be appointed to represent the child. In addition, the mandate does not clearly state what the representative ought to do for the child (Davidson, 1981: 20; Ramsey, 1983: 289). As a result of the ambiguity of the Federal mandate and the term guardian-ad-litem, the practices of the fifty states vary regarding the appointment of independent representation for the child. Currently, 47 states and the District of Columbia have statutory mandates for the appointment of a guardian-ad-litem for children in abuse/neglect proceedings, while the remaining three states leave the appointment of representation to the discretion of the courts. In 39 of the 47 states, abused children are entitled to independent representation by legal counsel (Witcomb, 1988: 2-3). Three states have made statutory requirements for court-appointed special advocates to represent children in abuse/neglect proceedings as an alternative to the use of court-appointed legal counsel. Witcomb (1988: 3) found that, in general, 57 state statutes provide for either: a) an attorney to be appointed for the child; b) for both a guardian-ad-litem and an attorney to be appointed; c) for the appointed guardian-ad-litem to be an attorney. (Witcomb did not designate how many states fell into each of the categories). 2.8 MICHIGAN CHILD PROTECTION ACT The Michigan legislature passed the Child Protection Act in 1975. Section 10 of the Act (P.A. 1975, No. 238, Eff. Oct. 1, 722.630) requires that, "The Court, in every case filed under this act in which judicial proceedings are necessary, shall appoint legal counsel to represent the child. The legal counsel, shall be charged with the representation of the child's best interest". The purpose of the Child Protection Act included providing for the appointment of legal counsel for children in abuse/neglect proceedings (Memorandum, Dept. of Management and Budget, 1975). The provision for the appointment of legal counsel was one of the additions made to the original child abuse reporting statute which was amended into the current Act. The argument for the addition of a legal counsel provision was that such a provision would ensure that the wishes and rights of children would be treated equally to those of the child's adversaries during court proceedings (Analysis-House Bill 4214 (2-12- 75)). There are several criticisms of the Child Protection Act 58 which potentially limit its ability to protect children in abuse/neglect proceedings. These problems are due, in part, to the ambiguity of the role as discussed in 2.7. Although Michigan's Act does have an advantage since it states that independent representation should be provided by legal counsel, there are several uncertainties within the Act which potentially hamper counsels' ability to benefit the child. First, although the Act briefly states that legal counsel must investigate the facts, interview and examine witnesses and make recommendations to the court, it does not explicitly define the role of legal counsel or how counsel should represent the child's best interests (P.A. 1975, No.238, Eff.Oct. 1, 722.630). This role has only been inferred by Michigan courts that it should not be limited to the traditional role of only representing the child's wishes per say, but should be extended to representing the child's best interests. Thus in Michigan, it is inferred, but not clearly stated, that legal counsel for the child should be a lawyer who acts in the traditional role of a guardian-ad-litem by serving the best interests of the child, although the legislature does not define what they consider to be the child's best interests. An additional criticism of the Act is the lack of definition in regards to the best interests of the child. The statute does not offer a Comprehensive assessment of what constitutes the best interests of the child. The lack of definition leads to a dilemma for anyone who is charged with 59 acting in the child's best interests. There is a bit of uncertainty as to how guardians-ad-litem are supposed to advocate for the best interests of the child if there is no comprehensive definition of the child's best interests. The only assistance currently given to legal counsel in explaining what is in the best interest of the child, is a section within the Michigan Statutes Annotated. Volume 20 of the 1987 revised volume, Section 23 of M.S.A. 27.3178(598.2), which states several conditions of what is considered to be in the best interests of the child based upon previous Michigan case law. These conditions include: a) the best interests and happiness and personal attachments of the child must control court decisions when the rights of the parent to the custody of a child is not clear and imperative (In re Gould, 174 Mich 663); b) once determination of neglect has been made and jurisdiction is bestowed on court in proceedings to terminate parental rights, the remaining question is what disposition is in the best interests of the child pursuant to paramount concerns of the child's welfare (In re Franzel, 24 Mich App 371); c) termination of father's parental rights was proper based upon the best interests of child (In re Kidder, 61 Mich App 451); d) It is the best interests of the children which are to be considered in making dispositional decisions regarding children even though it is the policy of the state to keep children with their natural parents whenever possible (In re McCoullough, 141 Mich App 163); e) The best interests of the child are to be 60 considered by the probate court in making a dispositional order (In re Futch, 144 Mich App 163). However, these conditions are not all-inclusive and do not contain a definition of what the legislature's conception of the best interests of a child. Thus, ambiguous statutes and a lack of extensive case law have added confusion to the role of the representative (Duquette and Ramsey, 1987: 352). Another potential dilemma for legal counsel is whether legal counsel should act as a true lawyer who advocates his client's wishes or represent his subjective view of the child's best interest (Genden, 1976). According to Genden (1976: 588), "The central dilemma for a child advocate lies in deciding whether his function is to represent the wishes of the child or to represent his conception of the child's best interest". Existing statutes only add to the confusion a lawyer faces when representing children. Statutes that state that guardians-ad-litem should be attorneys raise the fundamental issue of whether the lawyer should act according to legal tradition and the Code of Professional Responsibility or act as a traditional guardian and advocate the child's best interest (Long, 1982-83: 611-612). For example, it may be in a child's best interests to be removed from the home for safety reasons. However, a child may be adamant in his/her declaration that he/she wishes to stay with his/her parents. The role of guardian-ad-litem in abuse/neglect proceedings is complicated the language of legislative mandates which may require legal counsel to 61 advocate-for the best interests of the child and adequately represent the child (Janssen,'1978: 3-6). In Michigan, legal counsel is charged with the competent representation of the best interests of the child (P.A. No. 238, 1975). However, the Act does not state what recourse legal counsel should take when a conflict occurs. Several writers contend that legal counsel should advocate the position of the child when a conflict occurs. One justification for this position is grounded in the constitutional due process argument for the right to counsel. The reasoning behind the right to counsel is to guarantee that the child can be heard in the proceedings and able to present his/her views to the court (Foster 8 Freed, 1972: 355; Milmed, 1974: 187). Milmed (p. 187) stated that, "the fourteenth amendment does not require the "best" result for the person whose interests are at stake; rather it requires that a person be heard in proceedings which affect his interests". Ramsey (1983: 295) found that, "respect for the individual, his values, his autonomy includes letting him make his own choices, even wrong ones". The belief that counsel should advocate the wishes of the child at the expense of "best interests" must be refuted. While the purpose of the independent representative is to speak for the child, legal counsel is also charged with protecting the child. The seriousness of the risks to the _ child and the lack of another individual within the proceedings who advocates for the child requires legal 62 counsel for the child to represent the child's best interests (Ramsey, 1983: 295). It is the responsibility of counsel to investigate the case and, after full examination, reach a determination which is best for the child. There are two ways in which counsel for the child can advocate for the child's best interests and still speak for the child, thus satisfying the constitutional right to be heard. First, in court proceedings, counsel can inform the court of both the position of counsel and the wishes of the child. Counsel can state on record that he/she does not agree with the wishes of the child and that they are not what he/she would advocate (Genden, 1976: 589). Secondly, in rare instances, legal counsel may option for a separate guardian-ad-litem to represent the best interests for the child while counsel expresses the wishes of the child. The major contingency regarding whether legal counsel ought to represent the wishes of the child is the age and the mental capacity of the child. Children who are not old enough to articulate their wishes do not pose a problem for legal counsel. Thus this conflict only occurs when a child is of the age or mental capacity to tell legal counsel what he/she wants in regards to placement. In the "Standards Related To Counsel for Private Parties" (1980), the Institute of Judicial Administration of the American Bar Association it is determined that: 63 Where counsel is appointed to represent a juvenile subject to child protection proceedings, and the juvenile is capable of considering judgment on his or her own behalf, determination of the client's interest in the proceeding should ultimately remain the clients' responsibility, after full consultation with counsel. However, professional codes which support the client's right to determine what should be advocated by counsel do not provide a standard for assessing client's competence (Ramsey, 1983: 304-305). The key word in the preceding quote is the term "capable". Child behavioral scientists have found that children reach different levels of decision-making ability at different stages in their life. Thus a child of ten may not be capable of making a "good" decision regarding what is the best option in the given situation. Guggenheim (1984: 76) has argued that because of this dilemma and confusion of roles, legal counsel should not automatically be provided for children who are too young to provide effective guidance to counsel in legal proceedings such as divorce-custody and abuse/neglect cases. While Guggenheim's argument may seem to have merit, many of the reasons he gave to justify his position differ significantly from previously accepted beliefs regarding the role of the state. For instance, Guggenheim, citing a book by Goldstein, Freud and Solnit, stated that the appointment of representation undermines parent authority and interferes with family autonomy. He made the argument that the state should not undermine parental authority except in the most compelling cases (1984: 110-112). However, as been previously 64 discussed, the state has the right to intervene upon parental authority and autonomy when the parents allegedly break laws designed to protect the welfare of the child. In addition, it may be important to undermine parental authority with an independent representative since there is often a conflict of interest between parent and child (Issacs, 1972: 229; U.S. Dept. of Health and Human Services, 1980: 2). Therefore, Guggenheim's arguments are not compelling enough to deter the use of legal counsel for children too young to express their wishes. The conflict over roles should not be perceived as support for a belief that legal counsel are inappropriate as independent representative for the child. The American Bar Association's Model Code of Professional Responsibility, Ethical Considerations under Canon 7 states that, "The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of the client" (Model Code Of Professional Responsibility EC 7-11, 1979). This ethical consideration should be viewed as acknowledgment that legal counsel are not inappropriate for the role of advocate for the child since the role of counsel 'may vary according to the age of the client'. The final word as to whether counsel should advocate the wishes of his/her client can be found in Canon 7 of the Michigan Court Rules. Canon 7 requires a lawyer to representate a client "zealously within the bounds of the law". Under this Canon, a lawyer may, "exercise his 65 professional judgement to waive or fail to assert a right or position of his client" (Michigan Rules of Court, 1987). Thus, in Michigan, a lawyer can override the wishes of his client if these wishes conflict with the professional judgement of the lawyer. Therefore, counsel for the child in an abuse/neglect proceeding can advocate the best interests of the child, rather than the expressed wishes of the child, if these wishes conflict with the counsel's professional judgment. 2.9 ALTERNATIVES TO LEGAL COUNSEL As an economical alternative to the use of court-appointed counsel to represent children, some jurisdictions use lay volunteers, either in lieu of, or in addition to lawyers to independently represent the child's best interests. In many counties throughout the United States, including several in Michigan, lay volunteers do all of the investigative work required to determine the best interests of the child and then present their findings to the judge during the judicial proceedings. There is a national organization called Court Appointed Special Advocates (CASA), although volunteer organizations may vary throughout the country. CASA trains lay guardians-ad-litem to investigate, advocate, negotiate and monitor court orders. CASA volunteers are appointed by juvenile court judges just as if they were court-appointed lawyers (Office of Juvenile Justice and Delinquency Prevention, 1985). The main difference between 66 lay volunteers and legal counsel is that volunteers are not able to fulfill the legal requirements, (i.e. filing motions and cross-examining witnesses) often needed within judicial proceedings. Therefore, depending upon the state or county requirements for the use of legal counsel, the volunteer organization will have one or two lawyers on the staff who go into the courtroom along with the volunteer if legal assistance is needed (Office of Juvenile Justice and Delinquency Prevention, 1985). There are many advantages and disadvantages to the use of both the legal counsel and the lay volunteer systems. The advantages for the use of lawyers include: (a) the necessary understanding of issues of law and complex courtroom procedures; (b) familiarity with statutory and case law: and (c) an understanding of the judicial system (U.S. Dept. of Health and Human Services, 1981). A disadvantage to the use of lay volunteers is that most lay persons work outside of the judicial or social service systems. It is much more difficult for individuals who operate outside of a system to fully understand the functioning of that system and how to manipulate it and intervene on behalf of the child. Thus it may be more advantageous to use court-appointed legal counsel, who function inside the system, to represent and advocate for the child (Fraser 8 Martin, 1976: 170). Those individuals who advocate the use of volunteers and argue against the use of lawyers, such as authors and directors of lay volunteer programs, state that lay advocates 67 have more time to invest in each case. The use of volunteers is also less expensive than court-appointed lawyers (Ray-Bettinski, 1978: 66; U.S. Dept. of Health and Human Services, 1981). One argument against the use of legal counsel is that since legal counsel are often under-compensated for their work, they are not as motivated to put the required time and effort into the investigatory work required of them. Another argument against the use of lawyers is that although they may be adequately familiar with legal matters, they may lack the training to understand matters of child development, psychological and social issues needed to make a recommendation for the child's best interests (U.S. Dept. of Health and Human Services, 1981). However, the degree to which a lay volunteer is familiar with such issues is debatable. The Office of Juvenile Justice and Delinquency Prevention states that the amount of training CASA volunteers receive varies between the individual branches of the organization (1985). In addition, Issacs (1972: 238-239) states that: lawyers have frequently assimilated the expertise of other disciplines where necessary for effective representation ... the increasing complexity of society often makes it necessary for the lawyer of today to develop competency in fields not strictly encompassed by the study of law". 68 2.10 EMPIRICAL STUDIES There is a penury of empirical studies on the twin issues of independent representation and best interests of the child during the past decade. Three empirical studies have been conducted on the issue of independent representation. A study conducted by the University of Michigan's Child Advocacy Law Clinic, attempted to measure the impact of formal training on individuals representing children in abuse/neglect proceedings (Duquette 8 Ramsey, 1987). A North Carolina study measured the effectiveness of legal counsel in dispositional hearings (Kelly 8 Ramsey, 1982-83). Finally a study was conducted in the Southeast to determine the degree to which representatives are utilized within the probate courts of these states (Johnson, 1979). These studies will be discussed, and their findings assessed, based upon their strengths or weaknesses, generalizability and how they relate to this study. One research team in Michigan established an empirical study to address three central issues regarding independent representation in an effort to address the questions most problematic to independent representation. The issues addressed included what should be the duties and responsibilities of independent representation; who should advocate for the child; how can effective representation for children be accomplished (Duquette 8 Ramsey, 1987: 341). 69 response to the problem of lack of guidance regarding the roles and responsibilities for lawyers who independently represent children, To accomplish this task the researchers conceptualized a role for the child's representative as, "...one that requires aggressive and ambitious representation and that addresses legal and nonlegal interests of the child" (p. 351). This definition rejects the idea that lawyers should remain neutral in regards to the outcome of the proceedings and only concern themselves with guaranteeing that the court process is procedurally correct (p. 351). The researchers conducted an experimental study on representation using attorneys, law students and trained lay volunteers to represent children in abuse/neglect proceedings. The study was conducted in the Genesee County Juvenile Court in Flint, Michigan in 1982. The research was part of a nationwide project by the National Center for Child Abuse and Neglect which funded numerous studies to encourage both exploration and evaluation of alternative methods for the provision of representation of children (p. 350). The researchers used a before/after method to evaluate and assess the effectiveness of the project. The before, or control, cases and representatives were chosen from court cases selected prior to the implementation of the project. The control representatives differed from the project's representatives in three ways: a) all of the representatives ‘were attorneys; b) none of the attorneys had received any special training; c) the attorneys did not typically serve 70 for the duration of the case, but rather different attorneys were appointed to different hearings throughout each case (Duquette 8 Ramsey, 1987: 361). The data used for evaluation of the representative was obtained through two sources; court records and face-to-face interviews (p. 363). The primary purpose of analysis was to determine if the representatives from the project group could perform as well as or better than the control group (Duquette 8 Ramsey: 1987: 366). The researchers used factor analysis and developed four standardized scales to analyze their data. The factors included an investigation-interaction scale, an advocacy scale, a motivation scale, and a child scale. The research measures resulted in differences between the project and control groups that were statistically significant at the .05 level (p. 367-69). The researchers found only fourteen (29%) significant differences in effective representation between the trained lawyers, law students and volunteers. The researchers did not perceive these differences as consequential and enough to conclude that the performance of any one demonstration group substantially differed from the performance of another group (Duquette 8 Ramsey, 1987: 370-372). They also found that the project representatives had an impact on a number of case outcomes including whether or not children were made wards of the court. In addition, the project cases were less likely to be dismissed once court assumed jurisdiction over the child (p. 385-87). There were two policy implications obtained from 71 this study according to the researchers. First, that trained child advocacy was successful in improving the quality of representation. Second, since there was no difference in representation between types of trained advocates, the importance of effective representation for children lies in the training and not in who is representing the child (p. 389-90). A study conducted in North Carolina questioned the effectiveness of legal counsel acting in the role of a guardian-ad-litem. That is, whether the use of legal counsel as representatives for children in abuse/neglect proceedings was beneficial (Kelly 8 Ramsey, 1982-83: 416). The standard used to measure effectiveness was the ability of the child's attorney to prevent removal of the child from the home and the ability to facilitate the child's return to the home (p. 406). The researchers working hypothesis was that legal counsel, working as guardians, should consider the removal of a child only as a last resort, to be used only if less intrusive measures are inappropriate. In addition, if the child is removed, counsel should strive to reunite the children with their parents as soon as possible (p. 418). The researchers utilized a random statewide survey to evaluate whether the presence of legal counsel influenced dispositional cases. First, out of a total of 100 counties in North Carolina, the researchers drew a sample of twenty counties and then checked them for representativeness. Second, the researchers collected information from randomly 72 selected juvenile court records for 210 cases which involved 375 children (Kelly 8 Ramsey, 1982-83: 425). The researchers used regression analysis to measure relationships among the 33 variables in their data. These variables were identified as important in measuring effectiveness (Kelly 8 Ramsey, 1982-83: 428). Kelly 8 Ramsey (p. 451) found that, "... the presence of guardians ad litem produced no overall effects that would be considered beneficial by the standards developed for the North Carolina study" (p. 451). The study found several reasons for the ineffectiveness of counsel. These reasons include some of the problems previously mentioned in this text, such as poor compensation and confusion over role (p. 451). A major criticism of this study is the researchers' standard for evaluating effectiveness. The researchers' standard for measuring effectiveness was based upon widely accepted studies which found that the removal of a child from the home should be used only when there are no other available alternatives (Kelly 8 Ramsey, 1982-83: 406). However, this standard is based upon a value judgement regarding what is best for the child which may not be universal in all circumstances. Thus, if the standard for effectiveness is not valid, the findings of the study must be held suspect. Another study conducted to measure the use of independent representation for children in abuse/neglect proceedings was undertaken in the Southeast in the late 73 1970's by Clara Johnson. The purpose of the study grew out of several problematic issues in the Southeast based upon the states' attempts to comply with the federal mandate regarding independent representation for children. The research project was designed and implemented to find out what the current conditions were in regards to independent representation in the various states in the Southeast (Johnson, 1979: 16). Research was conducted by mailing survey questionnaires to every judge in the Southeast who had jurisdiction over juvenile court cases. The researcher chose to study the entire population instead of a sample based on both the inability to stratify variables from the list of judges and the anticipated low return rate (Johnson, 1979: 16-17). A total of 575 questionnaires were mailed with a return rate of just below twenty percent. Follow up efforts only minimally increased the response rate. A final total of 114 judges returned the questionnaires (1979: 17). The research questions developed for the study included: a) how the courts utilized guardians-ad-litem; b) what the services cost and how they were financed; c) what changes the judges' recommended regarding changing or increasing the role of guardians-ad-litem (Johnson, 1979: 17). The researcher found that less than fifty percent of the judges appointed a guardian-ad-litem for every child abuse/neglect case and that based upon the total number of responses, over seventy percent of the guardians-ad-litem appointed were attorneys (pg. 17-19). The influencing factor for both of these 74 variables was existence of statutory provisions. That is, whether or not the individual states had their own statutory requirements for the appointment guardians-ad-litem or the use of legal counsel as guardians-ad-litem greatly influenced judicial procedures (p. 19). The researcher also found that in over fifty percent of the responses, the judges stated that the need for guardians-ad-litem in abuse cases should be left to the discretion of the court (p. 19-20). The researcher attained three general conclusions based upon the research findings. First, federal legislative intent, without a clear conceptual model or provision of resources for implementation, may not be an effective approach to assuring that the appointment of guardians-ad- litem would be made mandatory by the individual states. Second, although legislation can not guarantee compliance, legal provisions may have a greater impact on actions than administrative provisions. Lastly, based upon the current procedures for implementing a guardian-ad-litem provision, one must question how the best interests of the child are being served (Johnson, 1979: 20). Although the findings from Johnson's study are interesting and offer important insights to the practices and perceptions of judges and the Southeast, the findings of the study are limited within the parameters of the research for two reasons. First, since the study was conducted of the general population and not a random sample, the findings are only applicable to the practices of juvenile court judges in 75 the Southeast. Secondly, since this study was conducted over ten years ago, within two years of the enactment of the federal mandate, it is probable that many of the states have changed their legislative mandates regarding the appointment of guardians-ad-litem and legal counsel. Thus, many of the findings may not be applicable to current practices among juvenile court judges in the Southeast. SUMMARY Presently there are several dilemmas regarding the use of independent representation for children in abuse/neglect proceedings. There are compelling arguments for the necessity of independent representation for the child due to conflict of interest and lack of other individuals within the court able to independently represent the child. Even more compelling is the argument for the use of legal counsel as independent representative on the grounds of a constitutional, due process right to counsel. Children have a constitutional right to counsel due to potential loss of liberty, right to a fair hearing and the fundamental nature of the parent-child relationship. Although some critics argue that independent representation for the young may be excessive and undermine parental authority and family autonomy, the state has the right to undermine parental autonomy when parents allegedly abuse their natural rights to raise their without state intervention. Michigan's Child 76 Protection Act was developed to protect children from abuse and neglect. There are several criticisms of Section 10 of the Act which provides children with court-appointed legal counsel. It is uncertain whether these criticisms of the Act actually limit the effectiveness of court-appointed legal counsel for children in abuse/neglect proceedings. Although these criticisms are supported within the literature, it is unknown whether they are cause for concern within Michigan's probate courts. Critics of the use of court-appointed legal counsel have sighted several disadvantages to the use of counsel. Many who argue against the use of legal counsel claim that lawyers are inappropriate representatives. The reasons addressed are the lawyers' alleged lack of expertise in family-related issues and the conflict which occurs when lawyers must chose between representing their client's wishes and representing the best interests of the child as perceived by the lawyers. These critics advocate the use of lay volunteers as an alternative to legal counsel. There have been few answers to the questions raised by both critics and advocates of independent representation. The findings of the few research studies relating to independent representation that have been conducted thus far have not been able to make conclusive statements about the use of independent representation or the role of the individual who represents the children. It is the intention of this research study to attempt to answer many of the questions concerning the practice of using independent representation in Michigan. CHAPTER THREE RESEARCH DESIGN AND PROCEDURE 3.1 SUBJECT DESCRIPTION The research population chosen for this study was all Michigan Probate Court judges. This population was chosen for several practical and methodological reasons. First, since probate court judges encounter child abuse and neglect cases on a daily basis, their opinions on the issue of independent representation for these children, however biased, were considered of great importance. Secondly, it is the responsibility of probate court judges, as agents of the court, to appoint legal counsel for all children who have been allegedly abused and to ensure that the rights of children in abuse and neglect proceedings are protected, including the right to legal counsel. Thus, the opinions of probate court judges on Section Ten of the Child Protection Act were considered to be valuable to the development of this thesis. From a methodological standpoint, the entire population of Michigan Probate Court judges was chosen as subjects for this study rather than only a sample of the judges for the following reasons. First, the State of Michigan has 108 probate court judges within its 83 counties. Although several of the larger counties have more than one judge, the total number of judges was considered too small of a research population from which to obtain a substantial sample. Second, the actions and opinions of judges may vary from 77 78 county to county. Every judge who presides over a county may have different views on how children in abuse/neglect proceedings should be represented. The actions of different judges in the same county may also differ. Obtaining only a random sample from such a low number of judges would have obliterated possible regional, within-county or inter-subjective differences in opinion on independent representation between and within county judges. Mailing the survey to every probate court judge in Michigan allowed for the compilation of the most complete view of judicial opinions. It was important to this study to measure a wide variety of judicial opinions, thus the opinions of as many Michigan judges as possible was necessary for data collection. A third reason for the use of the entire population was the anticipated low response rate. Because of the low response rate reported in prior survey research conducted on judicial opinions (Johnson, 1979), the entire population was utilized to obtain the highest response rate possible. The net response rate for the questionnaires was 36% (39), that is 39 out of 108 potential respondents. Although 40% (44) of the judges returned the questionnaires, 5 of these could not be used as they were letters explaining why the judges were unable to respond to the questionnaire. Some of the reasons included impending retirement and limited knowledge of abuse/neglect proceedings and independent representation since role in probate court concerned wills 79 and not abuse/neglect hearings. Two of the questionnaires included in the study were answered by the court clerks instead of the judge. One county clerk explained that, due to the large number of judges in the county, it was more efficient to have the clerk respond to one questionnaire than to have each of the judges respond separately, due to the time constraints on the judges. This response was coded as if it was answered by one judge instead of several. Two separate follow-up attempts were made to increase the response rate. Four weeks after the questionnaire was mailed, a follow-up letter was sent to each of the judges. The letter reiterated the importance of the study and urged the judges to respond if they had not already done so. Six weeks later, the surveys were re-mailed to Wayne County judges in hopes of improving the number of responses from the largest county in the state. Most of the respondents were judges from rural and small counties, that is, having only one or two judges. Only a fraction of the judges from the larger counties responded. The regions from which the greatest number of responses were received included the southeastern and southwestern areas in Michigan. The number of judges who responded from each county is in Table 3.1. A methodological limitation resulting from the use of the entire population of Michigan Probate Court judges, rather than a national sample of probate judges, is that research findings may not be generalized outside the state of 80 Michigan. The findings only represent the opinions of those probate court judges who responded to the survey questionnaire, and not of probate court judges in general. In addition to the mail surveys, a sample of non-judicial members of the probate court proceedings were interviewed. Although the focus of the thesis was judicial opinions, it was felt that the opinions of prosecutors, legal counsel, court case workers, and social service workers involved in child abuse/neglect cases would add to the panorama of opinions and perceptions of the issues. There were three reasons for seeking non-judicial opinions. First, the researcher wanted to determine the extent of concordance or discordance between judges' opinions and those of other actors in child abuse/neglect proceedings. Second, as indicated above these actors' opinions would provide additional perspectives on the use of independent representation in judicial proceedings. Third, the use of this group was an appropriate supplement to the data base. The expected low response rate required additional methods of data collection. 3.2 RESEARCH DESIGN Data for this study were generated from a combination of research designs and data collection procedures. While the mail survey was the principal design used for the population of probate court judges, a field study and personal interviews were used in an initial pilot study and for TABLE 3.1 NUMBER OF JUDGES RESPONDED BY COUNTY COUNTY ONE JUDGE TWO JUDGES THREE OR MORE ALCONA ALLEGAN BENZIE BERRIEN CALHOUN CASS CLINTON CRAWFORD DELTA EATON GOGEBIC GR. TRAVERSE GRATIOT INGHAM IONIA IOSCO KALAMAZOO KENT LAPEER LUCE MACKINAC MANISTEE MECOSTA MIDLAND MONROE MONTCALM OAKLAND OGEMAW OSCODA OTTAWA SHIAWASSEE ST. CLAIR TUSCOLA VAN BUREN ><><><><><><>< ><><><>< ><><>< XXXXXXXXXXXXX XXX 81 82 obtaining the opinions of non-judicial participants in abuse/neglect proceedings. The pilot study, designs and data gathering techniques will be presented in the next pages. 3.2.1 PILOT STUDY Prior to the development of the survey instrument, a pilot study was undertaken to gain greater insight into the issues and problems to be addressed in this study. The proposed research topic was discussed with an assistant prosecutor in a Michigan county. The choice of this assistant prosecutor was based on the long-standing professional and personal commitments of the latter to child abuse issues. A number of questions were posed to the assistant prosecutor in order to clarify issues discussed in the literature or those stemming from preconceptions and misconceptions about this social concern. The information and clarifications obtained provided the foundation for further interviews in the pilot study. Based on the recommendations of the assistant prosecutor, a Michigan Probate Court judge was interviewed in order to develop a greater insight into the issue of independent legal counsel for children in abuse/neglect proceedings. Issues discussed encompassed guardians-ad-litem, legal counsel, lay volunteers and the roles and responsibilities of each of these individuals. The 83 feasibility of surveying Michigan Probate Court judges for the purpose of obtaining their opinions on these issues was also explored. The Probate Court judge recommended that the State Court Administrative Office be contacted for further information on the feasibility of and assistance in surveying Michigan Probate Court judges. While the State Court Administrative Office personnel were unable to assist in administering the survey instrument, they did provide the researcher, for a nominal fee, with a mailing list of every probate court judge in Michigan. The research design was also discussed with the Director of the Child Advocacy Law Clinic who is also a Clinical Professor at the University of Michigan Law School and the Director of Children's Charter in Lansing, Michigan. These individuals were contacted to obtain suggestions on how to improve the response rate for the mailed surveys. Based on this preliminary field work, a list of items pertaining to the issue of independent representation was drawn for the questionnaire. Issues of possible importance, which had not been considered prior to the pilot study, such as compensation and the ever changing definition of the role of a guardian-ad-litem, were incorporated into the survey questionnaire. 84 3.2.2 THE STUDY The present study attempted to measure subjects' opinions, attitudes, and knowledge regarding a legislative mandate. The mail survey design was considered the most appropriate design for conducting research On every probate court judge. Similarly, since the Child Protection Act is a relatively new legislative mandate, its implications were not mature enough to permit a valid longitudinal study. The utilization of surveys for data collection was believed to be the best method for obtaining a broad spectrum of opinions from respondents. In general, the greatest advantage of mail surveys is that they allow for a wide geographic and inter-subjective representation of opinions, while remaining relatively inexpensive and less time consuming than other research designs (Hagan, 1982: 64). The use of mail surveys eliminated many disadvantages associated with other research designs which measure opinions. It provided a great degree of privacy, anonymity and confidentiality, by virtue of the fact that R researcher-respondent, face-to-face contact was eliminated. Additionally, mail surveys were perceived to enhance the possibility of more honest responses since a confidential identifier was used on the questionnaire rather than the respondents' real names (Hagan, 1982: 64). Thus the respondents did not need to worry that their opinions would be used against them either personally or politically. Since 85 probate court judges are in a highly political position, they may have been hesitant about revealing their personal opinions unless they were guaranteed confidentiality. Thus the use of mail surveys was considered most appropriate for researching the opinions of probate court judges. An additional advantage to the use of mail surveys was the elimination of potential researcher and/or respondent bias which may occur when researchers attempt to obtain opinions through the use of personal interviews (Hagan, 1982: 64). Consciously or unconsciously, interviewers may let their personal biases and other characteristics affect the way they frame questions or the intensity with which they pursue them depending on the respondents. Apart from the extraordinary amount of time involved in, interviewing, some interviewers may not possess the required interviewing skills necessary to obtain the greatest possible quality and quantity of responses. In addition, the respondent may let the personal and demographic characteristics of interviewers affect their responses (Dooley, 1984: 254). Thus, due to the limitations of personal interviews, such procedures were confined to supplementing the primary source of data collection, the mailed surveys. By mailing surveys to the probate court judges, instead of discussing the issues in person, there was a greater degree of assurance that the opinions expressed by the respondent where not influenced or misinterpreted by the researcher. In addition, several pragmatic considerations, such as time 86 commitment, accruement of expenses, and lack of mobility, made mailing the survey questionnaire the most practical choice for data collection considering the wide geographic locations of the judges. 3.2.3 DISADVANTAGES TO USE OF SURVEYS There are several disadvantages to the use of mail surveys which should be discussed. The first disadvantage is the low response rate often associated with mailed questionnaires. The typical response rate for mailed surveys is 10 to 20% of the total amount of surveys mailed. Rarely does a response rate exceed 50% (Binder 8 Geis, 1983: 136). A second disadvantage is the problem of response and nonresponse bias, that is, the possibility of differences of opinions between respondents and nonrespondents (Hagan, 1982: 64). Due to low response rates, it is difficult for the researcher to measure whether the responses obtained are representative of the population surveyed (response bias) or whether nonrespondents' opinions would have an impact on the research findings (nonresponse bias). Since the response rate for this survey was 36%, it was higher than the typical response rate as discussed by Binder and Geis. However, the response rate was deemed lower than desired since it did not offer a wider geographic representation of the judges in Michigan. Other disadvantages include the fact that mail surveys are time consuming and responses may be slow even with 87 follow-up attempts (Hagan, 1982: 64). There is also the possibility of misinterpretation or lack of understanding of the wording of the questions by the respondents (Binder 8 Geis, 1983: 136; Hagan, 1982: 64). Despite such limitations, mail surveys are widely used in research work partly because the researcher can manipulate many of these limitations (i.e. follow-ups, extrapolation of responses and incentives), and partly because the advantages of the use of mail surveys outweigh the disadvantages (Binder 8 Geis, 1983). 3.2.4 LIMITATIONS OF STUDY There are several limitations of this study. Many of the disadvantages to the use of mail questionnaires were encountered during the course of data collection. First, although the 36% response rate should be considered relatively high by social science research standards, it is impossible to know whether the respondents were representative of the population. The degree to which both response and non-response bias factored into the research findings is unknown. With a 36% response rate, there was a degree of uncertainty as to whether the views of the respondents were characteristic of the population or whether the opinions of the nonrespondents deviated from the known respondents. Second, the potential problem of misinterpretation was actualized by the respondents. Many of the open-ended questions were answered with responses which 88 were not applicable since the respondents' misinterpreted either the wording or the objective of the questions. Thus, some of the responses were coded into categories which did not contribute to the overall understanding of judicial perceptions and limited the amount of useful data. Although this limitation must be noted, the occurrence of misinterpretation was confined to a small number of responses. Thus, for the purposes of this research, although the disadvantages common to mail survey possibly limited the collection of data, the known advantages (i.e. practical considerations and elimination of interviewer and respondent bias) to the use of mail surveys outweighed any disadvantages which occurred. 3.3 DATA COLLECTION PROCEDURES The data collection instrument chosen for this study was the survey questionnaire (See Appendix A). The developed questionnaire was sent to probate court judges in every county in Michigan that has a probate court. An introductory cover letter, which explained the purpose of the survey and the issues addressed within the survey, was enclosed in the packet together with a stamped, return envelope. To enhance survey participation and response rate, and as an expression of appreciation for participation, the researcher assured survey participations that a copy of the study would be sent to those who placed a check mark in the appropriate box in the questionnaire. To insure confidentiality, arbitrary 89 numerical codes were developed for the regions and counties in Michigan. The state was divided into four regions, coded 01, 02, 03, and 04. Three of the regions contained twenty-one counties while the fourth region contained only twenty counties. The counties were coded either 01-21 or 01-20. Each survey instrument was assigned a regional and county code number prior to mailing. For example, respondent John Doe received a questionnaire coded as 01/01, that is Region One/County One. The names of the individual judges did not appear on the questionnaires. For the purpose of confidentiality, after the regions and counties of the returned questionnaires were recorded, the sections which identified the respondents and asked the respondents to place a check if they wanted a copy of the questionnaire were removed from the questionnaire. Thus, the respondents' opinions could not be traced to the respondent through their desire to receive a copy of the study. The survey questionnaire was divided into five sections. Each section contained different questions on those issues of greatest importance to independent representation. The sections, in order, included: (a) an introductory section: (b) a section on the use of court-appointed legal counsel: (c) a section on the use of lay volunteers; (d) a section on independent representation; (e) and a final section on Michigan's Child Protection Act. The purpose of the introductory questions in Section One was to determine the judges' perception of and attitude towards the ideal of the 9O child's best interests and to reveal the type of representation utilized in each judicial jurisdiction, (i.e. court-appointed legal counsel, lay volunteers, or both). The respondents were not required to complete each of the five sections of the questionnaire. The sections which the judges could answer were determined by how they answered Question Two of the questionnaire concerning the type of representation utilized in the judges' jurisdictions. The different sections were developed to assess judicial perceptions on various issues related to independent representation. Each section contained a brief description of the content of the questions and declared which sections were appropriate for the respondent based upon how they answered Question Two. Data were collected from non-judicial members of the court proceedings through personal interviews. Two prosecutors, two court-appointed legal counsel, a court case worker, and two protective service workers from the Ingham County Department of Social Services were administered loosely structured questions similar to those used in the mail survey. These workers were interviewed either because they were recommended to the researcher by other members in their field or because they were the only workers knowledgeable on the subject of independent representation of children in abuse/neglect proceedings. For logistic purposes, the interviews were limited to Ingham County. When permitted 91 by interviewees, the researcher tape-recorded the interviews to enhance the researcher's recollection of responses. 3.4 RESEARCH QUESTIONS The thesis was designed to obtain answers to several primary research questions. The primary questions included: (a) whether the respondents believe that the use of independent representation is necessary; (b) the type of representation utilized by the probate courts in each county; (c) factors utilized to ascertain the best interests of the child; (d) definitions of the roles and responsibilities of independent representation; (e) and who provides the best representation for children. In addition, there were several secondary questions sought for this study. The secondary questions included: (a) whether compensation affects representation; (b) whether the counties have established formal criterion by which decisions in regards to the best interests of the child are based; (c) whether children's wishes should be expressed by the representative if these conflict with the opinions of the individual representing them; (d) whether the role of representative is welcome in the probate court; (e) and the advantages in using different forms of representation, that is, legal counsel, lay volunteers, or both. These research questions, developed from both the review of the literature and the pilot field investigation, were 92 outlined and transformed into the final product for data collection, the survey questionnaire. The questionnaire contained a total of twenty-six questions. The majority of these questions were close-ended using Guttman scales with two response options. Three of the close-ended questions gave the respondent five or more options. In addition, there were several open-ended questions in which respondents were asked to express their opinions on different issues. Finally, several of the close-ended questions solicited additional explanations to the responses given by the respondents to the close-ended questions. 3.5 DATA ANALYSIS This study explored a virgin territory in which there is an acute penury of information. It did not attempt to explain or predict the behaviors of judges. Rather, it was an exploratory study which attempted only to describe the variations of opinions, attitudes, and knowledge of the subject matter based upon returned questionnaires. The data were analyzed using several methods of univariate and multivariate statistical analysis, employing both descriptive and inferential statistics. Although the variables measured quantitative data, the numbers representing the variables were not inherently meaningful to the variables. In addition, the variables measured represented only nominal level scales, since the response categories for the variables differed in 93 kind only. The statistical tools utilized were only those which generated the most useful information for nominal data. The tabulated data were categorical since the values for each survey question, when coded, merely represented discrete, independent categories in which order was unimportant (Alreck 8 Settle, 1985: 405). For the purpose of data reduction, the open-ended questions were collapsed into categories developed by the researcher. Since there are only a limited number of univariate descriptive statistics which are appropriate for use with nominal level variables (Alreck 8 Settle, 1985; Dooley, 1984) the measures most suitable were utilized for data analysis. Descriptive empirical distributions of the variables were summarized into frequency distributions. These include frequency distributions displaying frequencies, relative frequencies, cumulative frequencies and cumulative relative frequencies which identified the occurrence of values within each variable examined. For example, frequency distributions were created to represent the type of representation utilized in each county. For the measure of central tendency, the mode was deemed the only meaningful measure for nominal data since it indicates the most frequently occurring value for a particular variable (Alreck 8 Settle, 1985; Dooley, 1984). Graphic display of the data will be given through the use of tables. Bivariate and multivariate descriptive analysis was undertaken primarily through crosstabulations. 94 Crosstabulation tables are used to indicate whether a relationship exists between two categorical variables. Crosstabs were appropriate for this study for several reasons. First, the object of crosstabs is to display whether distributions for one variable are significantly different for each value or level of the second variable. By comparing row and column percentages, it can be determined whether the variables are related (Alreck 8 Settle, 1985: 306). Second, crosstabs do not require that either variable be identified as independent or dependent, which was deemed important since the study was not interested in determining cause and effect (Alreck 8 Settle, 1985: 304). In addition, crosstabs were appropriate since all of the variables in the questionnaire were categorical. Crosstabulations were undertaken through the use of two or more variables, where the additional variables were used as control variables. Control variables are often used in crosstabulations to measure whether the values of the control variables affect the relationship of the initial variables. To determine whether the variables crosstabulated for this study were related, the number of occurrences and their percentages will be analyzed. The most commonly associated statistic used when measuring independence between categorical variables is the chi-square test of independence. As the title suggests, chi-square measures whether the variables are independent or associated to each other. However, chi-square does not measure the strength of any association that may occur. A 95 preliminary data analysis showed that the use of the ordinary chi-square test of independence was limited since many of the expected cell frequencies were less than five and thus fall below the required condition for statistical significance. Yates Correction for continuity was automatically applied by the computer in certain instances in hope of improving the approximation of a 2x2 table (Norusis, 1983: 53). Fisher's exact test was computed when applicable instead of chi-square. This test can be computed for 2x2 tables when the total sample size and expected values are small (p. 54). The computer automatically calculated Fisher's exact test when this statistic was more appropriate than chi-square. As previously stated, chi-square by itself does not indicate the strength of the dependence between variables. To determine strength of dependence, other nominal level measures of association were used. The Chi-square based coefficients used included Phi, Contingency Coefficient, and Cramer's V. The phi of chi-square is a Type A normed measure which assumes values ranging between 0 8 1 in which 0 designates no association and 1 designates perfect association. Phi tests the strength of the dependence between two variables in 2x2 tables after chi-square finds the variables to be dependent (Ott, Mendenhall, and Larson, 1978: 343-345). There are limitations to the application of phi, such as its restriction to 2x2 tables and the qualifier of chi-square significance. In addition, the value of phi offers limited insight into the amount of dependence since 96 little meaning can be attached to its value (Ott, Mendenhall, and Larson, 1978: 347). The contingency coefficient, a modification of phi, is also limited as a measure of association. The first disadvantage to the contingency coefficient is that it always has a value < 1, even when the classifications of the variables are completely dependent upon each other (Ott, Mendenhall, and Larson, 1978: 347): Second, it renders only a intuitive measure of the degree of association. Since it is used following the chi-square test of independence, it is most often used for data which satisfy the required conditions of the chi-square test (p. 347). Third, the values of contingency coefficients for two different sets of data can only be compared if the two-way tables contain the same number of rows and columns (p. 347). Lastly, it is difficult to compare the contingency coefficient with other measures of 'association (p. 347). The disadvantages of the contingency coefficient limit the application of this measure of association. Thus, although the contingency coefficient was computed, its value will not be given a great deal of weight as a measure of association. The best measurement for dependence of nominal level variables is Cramer's V since it avoids many of the obstacles associated with the contingency coefficient and phi. Cramer's V is a type A normed measure of association which is simple 97 to interpret; the larger the value of V, the greater the association between the characteristics of the variables (Ott, Mendenhall, and Larson, 1978: 349-50). Due to the limitations of both phi and the contingency coefficient, the value of cramer's v will be used as the primary determinant of dependence for these three measures of association in the crosstabulations run for this study. Proportional reduction of error (PRE) was also computed. PRE is an alternative to chi-square based measures and often renders a clearer meaning of association. Essentially, PRE's are ratios of a measure of error in prediction of a variable's values based on knowledge of that variable in addition to knowledge of an additional variable (Norusis, 1983: 55). Thus, the concept of PRE is that the extent to which errors can be reduced can be measured when other information is taken into account. If knowing an additional variable does not reduce the error rate of the first variable, than the second variable has no relationship with the first (Dooley, 1984: 388). The PRE most suitable for nominal level data is lambda and was thus calculated for all variables crosstabulated. Lambda always measures a range between 0 and 1. While a value of 0 indicates that one variable is not helpful in predicting the value of the second variable in the crosstab, a value of 1 indicates one variable perfectly specifies the categories of another variable crosstabulated (Norusis, 1983: 56). Thus, the closer a value is to 1, the closer the variables are associated. 98 All measures of association previously discussed will be used in the analysis of the strength of association between variables. However, when a discrepancy between measurements ensues, lambda will be given more weight since PRE's are perceived to rendering a clearer measure of association than chi-square measures of association (Norusis, 1983; Ott, Mendenhall, and Larson, 1978). . Findings from the personal interviews were not statistically analyzed but will be presented in a narrative form. This data will be used for comparison with the findings from the questionnaire in the interpretation section of the paper. The information derived both from the statistical analysis and the personal interviews will be presented in a narrative form, with the statistics rendered from computer analysis highlighting and emphasizing the findings, as they were related to the research questions presented in Chapter One . SUMMARY Research was conducted to measure how Michigan's Probate Court judges perceive and deal with the issue of independent representation. In order to obtain a wide variety of opinions, the entire population of 108 judges was used as targeted survey respondents rather than a sample of the judges. The data collection instrument was a survey questionnaire. The survey questionnaire was chosen because of its ability to generate a wide geographic and inter-subjective representation of opinions. A pilot study was conducted by the researcher prior to the development of the survey instrument. The information gained from the pilot study was used in the development of the survey. The survey questionnaire was divided into five sections which asked the respondent twenty-six questions related to independent representation and Section Ten of Michigan's Child Protection Act. Data from the surveys were analyzed using both univariate and multivariate analysis; including frequency distributions, cross-tabulations and appropriate statistics. Personal interviews of non-judicial members of the Michigan Probate Court were also conducted. The interviews were conducted to enrich the mail surveys. Results from the interviews were not statistically measured but will be summarized and presented in a narrative form. The results of the data summary and analysis are presented in the next chapter. CHAPTER FOUR DATA PRESENTATION AND INTERPRETATION 4.1 RESULTS FROM SURVEY QUESTIONNAIRE 4.1.1 INTRODUCTION As stated in Chapter One, to measure judicial perceptions of independent representation of children in abuse/neglect preceedings, research questions were developed and formulated into a survey questionnaire. In addition, personal interviews of other participants in such proceedings were conducted to obtain a broader spectrum of opinions aside from those of judges. The responses from the questionnaire will be presented in the first section of this chapter, followed by a section on non-judicial interviews. In the third section, the results of the crosstabulations will be presented. An interpretation of the general findings of the study will be presented in the last section. 4.1.2 RESEARCH QUESTIONS In this section, the research questions will be restated, followed by the items from the survey which answered the research questions. The research questions posed in Chapter One were developed into the survey questions for the survey questionnaire. Items of interest relating to the many issues of independent representation were defined prior ‘U0 the formulation of research questions. These items were