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Problems with the Children's Attorney Project

Go back to Entity Entry for CAP Program

The Children's Attorney Project in Clark County is a program that provides free attorneys to represent the wishes of a child in foster care or abuse/neglect proceedings. Here is their minimally descriptive webpage (archive copy 1/6/05). These attorneys are provided under contract with the county by Clark County Legal Services, a non-profit law firm that provides various legal services to the indigent. The Executive Director, Barbara Buckley is also a state legislator, so the group is actively involved in the development of new child welfare legislation. The CAP program is supposed to represent what children themselves say they want, rather than what others think they need. It is supposed to "empower" kids by giving them a say in processes effecting them.

While it may sound noble to give a child his own attorney, the CAP program is murky in both law and practice. The problem boils down to "needs" vs. "wishes". The rest of the legal system is concerned with the best interests of the child, which may be entirely different from his expressed wishes. When the two are in conflict, which one is the CAP attorney supposed to represent?

Their official website says only this about their mission: "The fundamental goal was to create a method for abused and neglected children, who are in foster care placement, institutions or wards of the state, to have a voice in court and speak out for their destiny.... These attorneys serve as the child's voice before the court and community allowing the children to take an active role (and responsibility) in their own destiny."

...So it sounds like they are representing the "wishes" of the child. But at what point does this theory break down?

For example, if a five-year-old is taken from his mother due to her drug abuse, he almost certainly wants to go back to her, and his CAP attorney, if representing his "wishes," would have to defend this position even if it wasn't in the child's best interests. Then, a few months later, the child may change his mind and want to stay with his foster family, and the CAP would have to defend that, too—even if the system is now trying to reunite the child with his mom.

Under the law, the child's wishes are irrelevant in both cases, so whatever the CAP attorney is crowing about is mostly noise.

Without a clear mission, CAP attorneys in Clark County just "wing it." How the child is represented seems to be totally up to the individual attorney, and different CAP attorneys could promote completely different positions. The result, in practice, is a chaotic, unfocussed program without effective managment. It seems to work against the best interests of the child as often as it works for them.

In recent years, perhaps due to the lack of alternatives, CAPs have been assigned to children of any age, even those who can't talk at all. How do these lawyers determine the wishes of their client? They just know. Unfortunately (or fortunately), the CAPs have almost no legal power, since there are few provisions in Nevada law for the wishes of the child.

They do seem successful, however, in getting themselves in the press, offering their version of reality for high-profile cases. Unfortunately, most of the other actors—DFS, the District Attorney and the Court—are prohibited by law from discussing juvenile cases, so the CAP's position is often the only one heard. Because they usually have no legal leg to stand on, they tend to try their cases in the media, and their statements tend to have elements of simplistic rightousness and cowboy self-promotion.

"The situation dealt me a strong hand, and I played all the cards," said one CAP attorney*.



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