Legal Guardian
by Barbara Ash

Children have legal rights, too, but they often are ignored. This clinic gives kids access to the halls of justice.

Even before Sean Martel entered his senior year in high school, his mother pleaded with school officials not to graduate him with the Class of '96.

Sean, who was diagnosed with atypical pervasive developmental disorder and last May scored a verbal IQ of 71, wasn't ready to graduate, Cindy Martel repeatedly told district administrators.

Martel worried that 18-year-old Sean wasn't prepared to survive in an adult world. Though only borderline retarded, he couldn't read a sentence, tie his shoes, make change, or follow a simple recipe.

Martel believed Sean's lack of progress was the result of the school system's failure to educate him.

School officials, however, countered the litany of Sean's developmental and academic deficiencies by saying simply that he had enough credits, therefore, they expected him to graduate.

"I never saw any progress, yet they kept passing him every year. Then, unbelievably, they were going to graduate him in June,” Martel said.

Worn out by years of fighting single-handedly for the appropriate public education to which the law says all children are entitled, Martel and her son sought legal help.

They were referred to the Children's Advocacy Center at Florida State University's College of Law.

Defender of children's rights

For students enrolled in this legal clinic, representing children involved in litigation is an eye-opening experience, an education about a world many of them had never before encountered.

Their clients are children, like Sean, with myriad disabilities in need of special care, children who have been abused and neglected, children caught in the crossfire of custody battles. They are teenagers charged with crimes ranging from trespassing to armed robbery and first-degree murder.

Since the Children's Advocacy Center opened in 1991, it has established a statewide reputation as a defender of children's rights.

These children are the beneficiaries of the center's primary objectives :
  • to train a new generation of lawyers in the preparation and trial of actual cases;
  • to provide free legal services to poor children; and
  • to awaken in tomorrow's lawyers and lawmakers a sense of compassion and responsibility toward children.

Before they graduate, the 16 or so advanced law students enrolled at the center each semester—and licensed for supervised practice by the Florida Supreme Court— have had several shots at reaching those goals.

As they become more involved in clinic cases, it becomes strikingly clear why their work is important, why children need their own attorneys.

"The reality is that while most parents are caring and nurturing, some parents are their child's worst enemy,” says Jack Levine, director of the Florida Center for Children and Youth and one of the state's leading child advocates. "In other cases, they're not able to perform their duties responsibly, or they need help getting services for their child.”

Children are powerless when it comes to key decisions about their lives in terms of legal and judicial issues because they don't have the capacity to represent themselves, he says.

"They need some community agent, like a lawyer, to look out for their best interests, to give them access to the legal system, to be their voice.”

Clinic students have provided a voice to nearly 400 children in various kinds of legal proceedings, from dependency and delinquency cases to special education, supplemental income and appellate cases. They also have engaged in public policy research and advocacy on children's issues.

Working for real clients allows clinic students to put into practice what they learn in the classroom.

"It reinforces what they learned in class and permits them to analyze real ethical issues that arise on a daily basis in lawyers' practices,” says Skills Training Director Ann McGinley (J.D., University of Pennsylvania).

And doing what practicing lawyers do in representing clients—counseling and interviewing them, investigating, drafting pleadings, negotiating with other lawyers, making presentations before the court—helps students develop a well-grounded confidence in their legal skills.

"Some students aren't as interested or good in the theoretical aspects of law as others, they're not academically oriented,” McGinley says. "But they throw themselves into the clinic and shine, and that gives them a sense of self-worth and the recognition, often for the first time, that they can be good lawyers. It also instills in them a commitment to public-interest law.”

Despite one academic tendency to view skills training as mere technical training—as opposed to education that is intellectual and analytical—there has been an increasing move nationwide in the past 20 years to offer more clinical legal courses like those at FSU.

In fact, academics at major universities across the country—along with the practicing bar and its institutions, such as the American Bar Association—have felt that skills training not only belongs in law schools, but warrants greater emphasis.

"Initially, the concern was that students weren't getting grounding in analytical skills and traditional philosophy,” McGinley explains.

But that's not a concern anymore.

"FSU and other major law schools recognize that you can't just put students out there, that after they're grounded in contracts and torts and the other traditional courses that give them a sense of history and how to analyze legal issues, the clinical courses provide students with a rich practical experience.”

Real kids in real trouble

Students who have completed 48 hours of law school classes are eligible to enroll at the Children's Advocacy Center. They receive six hours of credit a semester for up to two semesters.

The center operates like a law firm, with clinical professors Paolo Annino (J.D., FSU) and Ruth Ezell (J.D., FSU), both licensed attorneys, acting as senior partners and supervisors. As far as the Florida Bar is concerned, the two are the attorneys of record on all clinic cases.

"On the first day of class, we set the tone by laying case files on the table.” Annino says. "There are hearings, and depositions, and negotiations. There are real children in real trouble, and it's the students' responsibility to zealously represent them.”

The daily journals that students are required to keep provide insight into their self-reflections, ethical dilemmas, and anxieties about their cases.

"They use the journal like a handkerchief to cry into,” Annino says. "When we read them, we find out they're shell-shocked.”

Former clinic student John Bowman, now a special assistant to Florida Gov. Lawton Chiles, recalls how he felt when he worked on a case involving a Tallahassee teenager charged with first-degree murder. Charges against the boy eventually were dropped when his attorney, with the help of clinic students, was able to prove he wasn't at the scene of the crime. But Bowman felt the weight of his responsibility.

"I was extremely nervous,” Bowman says. "We'd been through a dozen hearings and depositions. I got the feeling I might be in over my head. You can become overwhelmed when you walk into a courtroom because you're dealing with clients who have something to lose.”

Clinic cases come by referrals from the Advocacy Center for Persons With Disabilities, Legal Services of North Florida, the Leon County Public Defender's Office, and juvenile court judges.

"We intentionally take on challenging cases, cases in which the student will have to think like a lawyer,” Annino says.

Leon County Public Defender Nancy Daniels, one of the founders of the clinic, says neither her office nor Juvenile Court Judge John Caruso cuts clinic students any slack when they're assigning cases.

"He tries to give them normal cases, anything that comes along, and they are extremely well-prepared,” says Daniels, who hired two former clinic students. "It's obvious that they've been taught good practice habits.”

One of the biggest cases that landed in the center's lap, and one that attracted widespread media attention, involved 16-year-old Aundra Aikens of Monticello. He was convicted of second-degree murder and sentenced to prison for his role in the 1993 Interstate 10-slaying of a British tourist.

Attorney Mark Olive, then clinic director, represented Aikens because it was a capital case, but students played important supporting roles, interviewing, taking depositions and researching case law.

Another case involved five siblings abandoned by their parents. Clinic students successfully petitioned for termination of parental rights. The parents appealed, but the First District Court of Appeals upheld the lower court's decision. The story ended happily when the children later were adopted by one family.

Still another case involved a child who had been ordered off school property for protesting a school policy. When he returned to object to what he believed was a violation of his First Amendment right to free speech, he was arrested and charged with trespassing. By the time the case was referred to the center, the local community was polarized over the issue.

A clinic student spent time in delicate negotiations with the child, his parents, school officials, the assistant state attorney, and a Department of Juvenile Justice intake worker. In the end, they reached an agreement that kept the child out of the juvenile justice system and satisfied everyone involved.

Tomorrow's lawmakers

Representing individual children, however, is only one aspect of students' hands-on education. Impact advocacy also plays a major role.

In one case that is pending, for example, students researched and drafted an amicus brief on an issue considered crucial to children with disabilities. They filed it in the United States Court of Appeals for the Eleventh Circuit in Atlanta.

A federal district court in Zipperer v. School Board of Seminole County had held that the statute of limitations for bringing an action for attorneys fees under the Individuals With Disabilities in Education Act (IDEA) is only 30 days.

The decision was appealed to the 11th Circuit. If affirmed, it will effectively deny children with disabilities their right to a free and appropriate education.

Attorney Janet Findling of the statewide Tallahassee-based Advocacy Center for Persons With Disabilities has referred several cases to the clinic in the past year, and has high regard for the students' work.

"I explain to (clients) that I have 60 to 100 cases to handle, but the students each have two or three during the semester and can give them full attention, No one has said no, so far,” Findling says. "In many cases, students' work has been equal to that of private attorneys on similar cases, and the clients have been satisfied.”

Sean Martel and his mother are an example of that.

"If it hadn't been for the Children's Advocacy Center,” Cindy Martel says today, "I'm certain I wouldn't have won for Sean the things that we asked for and he needed.”

What students helped win for the boy is two extra years of education, a daily formal reading program, speech therapy, and services to help Sean make the transition from high school to the adult world after he graduates.

Successes like that are important to Findling, but equally important to her is the pool of new lawyers who will be available to advocate for the disabled.

"It's encouraging to know there will be attorneys who, though they might not go into representing disabled children full-time, will do it pro bono because they became interested while working at the clinic.”

Annino and Ezell hope to instill in students—tomorrow's lawmakers—that same type of commitment to children on legislative issues.

Two years ago, they worked with the Public Defender's Office against legislation that would have allowed the videotaping of juvenile detention hearings, rather than requiring children to appear in court.

"We think kids need to see the judge face to face in court,” Daniels says. "It's important for them to see that court isn't T.V. Fortunately, clinic students helped kill that legislation.”

Currently, clinic student Catherine Chapman, who says she eventually wants to work with the Children's Defense Fund in Washington D.C., is researching the effect of federal and state welfare reform laws on Florida's poor children. Annino says the clinic is planning constitutional challenges and possible litigation.

"We see a lot of harmful things in the law, but we're looking for the things that will hurt kids the most,” he says. "We found four provisions that are like plump little sparrows waiting to be shot down.”

One provision of WAGES (Work and Gain Economic Self-Sufficiency) that causes Annino and Ezell to seethe, places penalties on children 12 and older whose parents do not go to work by taking away their benefits. A representative payee is appointed to a child under 12.

"That kid won't starve,” Annino says. "But if the kid is older than 12, no representative payee, no foodstamps, no benefits for something he or she didn't do. Why can a child under 12 eat, but a child over 12 can't? You're punishing that kid for the sins of the parent.”

Clinic students also have taken on another controversial issue under Ezell's supervision: the transfer of juveniles into the adult correctional system. Last year, more than 5,000 children were put into the adult criminal justice system in Florida. That's a five percent increase over the year before.

"That's happening because prosecutors have incredibly broad discretion, " says Ezell. "We're looking for ways to develop clearer and more uniform guidelines across the state. We think it's a matter of fairness.”

Besides welfare reform and juvenile justice, environmental issues pertaining to children are a clinic priority.

Early in the semester, third-year law student Patricia Nance, teamed with the Legal Environmental Assistance Foundation (LEAF), working on right-to-know issues involving pesticide use in Florida public schools.

Florida has laws requiring employers to notify employees whenever pesticides are being used at work, but the legislation does not extend to public school children.

Attorneys at LEAF asked the center to help them develop model legislation to inform children and their parents when pesticides are used in schools.

"Parents should get notice when pesticides are being sprayed around a school so they can say, ‘My child can't be around that,' ” LEAF's Andy Smith says. "It's important since kids are so susceptible to pesticides because they're physiologically still developing. For some people, a whiff of pesticides can be fatal.”

The opportunity to learn about the legislative process and draft legislation is one reason Nance is at FSU College of Law and at the clinic.

"I came to law school to help economically disadvantaged children,” she says. "When this project came up, I jumped at it. This is an invaluable experience.”

Surprisingly, only a handful of students, like Nance and Chapman, sign up for the clinic with the intention of spending their law careers as child advocates.

Most enroll because they want trial experience.

"They've never taken a deposition, never drafted a pleading, and they're terrified,” Annino says. "They want to get that experience over with.”

But regardless of their initial self-interest, few clinic students escape a feeling of responsibility toward children who rely on them to look out for their best interests.

That feeling is, in part, the result of coming face to face with children in trouble. But six hours a week of substantive law classes, also gives students a realistic look at the extent of the need for advocates. and an overview of the diverse and complex facets of children's law.

They deal with ethical issues in representing child clients, juvenile dependency and delinquency law, special evidentiary issues in children's cases, special education law, and supplemental security income law.

Guest speakers, including Levine, a doctor and social worker from the Child Protection Team, and the head of the Governor's Task Force on Domestic Violence, provide students a perspective on the work they're doing.

"Clinical students need the big picture of the laws, the budgets of agencies that have jurisdiction over children, of politics and how children and their needs are dealt with by legislative and Congressional members,” says Levine. "They need to know this because this is the context in which they'll be working.”

Leading by example

What distinguishes the in-house legal clinic from externship programs, in which law students are placed in legal offices throughout the state, is the one-on-one experience students receive with full-time faculty, McGinley says.

That's especially important these days, because after graduation, more young attorneys are by-passing entry level positions at established law firms and going out on their own, without benefit of mentors, she says. And often the ones who do take the traditional route find that senior attorneys, under the gun to make billable hours, don't have time to provide mentorship.

"We have to be like old-fashioned mentors,” Annino says. "We have to develop a bond with students, be role models to them, especially when it comes to attitude.

"We point out bad behavior of other lawyers, even professional dress. Some of them never have been around lawyers before, and have to learn there are certain minimal standards. Are we representing our client zealously if we turn off the jury because of the outfit we're wearing today?”

But Annino and Ezell's mentorship extends beyond courtroom attire.

"We try to be as reflective as possible,” says Ezell. "We'll say, ‘Let's think of the options, let's consider the moral and ethical issues.' As an attorney, I fully believe in everyone's right to due process. But some of our students struggle with that.”

Says Annino: "In criminal cases, they look at guilt or innocence, and they'll be in a moral dilemma, and spend sleepless nights about it.

"What they should be looking at is the whole picture, and the fact that they are what this kid has, and they have to represent the kid zealously.”