Representing Children on Appeal: Changed Circumstances, Changed Minds

I. INTRODUCTION There is an inherent tension between appellate practice and the representation of children. An appeal is normally a review of a record that is frozen at the time the record is made. The lives of children, however, are not static and the circumstances and conditions of their lives, and those of their families, are constantly changing. Moreover, the changes that time has wrought, including a change in the child's experience and maturity, can also result in a change in the child's position in the case. Thus, appellate attorneys representing children are not infrequently confronted with situations in which circumstances have changed significantly from the time of the order appealed from or in which the child has changed his or her position. Rules and Standards for children's attorneys make clear that attorneys for children must "zealously advocate the child's position" (1) and "follow the child's direction throughout the course of litigation." (2) This is true even when the reasons for the child's positions or desires may not be evident, or may perhaps seem unwise, to his or her attorney. Although an attorney may also be skeptical of the wisdom of an adult client's goals, when children are the clients, the attorney's understandable impulse to protect the child may make it difficult to respect the child's choices and decisions. (3) However, only when the attorney is guided by his or her client's desires and advocates zealously for them will the child's perspective be presented to the court. Although this mandate applies with equal force to appellate attorneys, (4) its application can be problematic. The appellate process, by its nature, is a deliberative one. Its purpose is to provide a review of the record and an impartial determination by a panel of judges as to whether error occurred during the trial and whether that error requires a reversal of the judgment at trial. Appellate lawyers comb through the record and fashion arguments for and against reversal. The appellate judges review their briefs and the records, discuss the issues among themselves, and then issue an opinion. Such a process is--and should be--careful and thoughtful. As a result, the appellate process is usually a relatively lengthy one. However, the length of time involved in an appeal can create difficulties when the lives of children are at stake. It is certainly not surprising that changes can occur in a child's circumstances or that such changes or a child's growing maturity will result in a change in the child's position on appeal. Dealing with these changes in the context of an appeal can pose some of the most thorny challenges for an appellate attorney representing children. To a certain extent, as will be discussed below, there are a variety of options built into the structure of statutes and case law to deal with a change in the child's circumstances. A change in the child's position from the time of the Family Court order to the time of the appeal can be somewhat trickier. An appellate attorney will have to untangle the reasons and motivations behind the child's change in position. The child's change in position may very well be due to objective changes in the child's circumstances. Or, the change could be due to the child's growth and maturity in the intervening period which lead the child to have a different conception and understanding of the proceedings in which he or she is involved. This article addresses the dilemmas raised for appellate attorneys by changes in a child's circumstances or changes in a child's position and discusses the ways in which appellate attorneys can both ethically and zealously represent their child clients in such situations. (5) Section II addresses changes in circumstances between the time of the Family Court proceedings and the time the appeal is heard in the appellate court. Section III deals with situations in which the position taken by the attorney for the child has changed between the time of the Family Court proceedings and the appeal. …