Summary of February 7, 2005 Order Dismissing Motions for Summary Judgement in Kenny A. v. Perdue

This summary highlights the main findings from the February 7, 2005 order entered by Federal District Judge Marvin Shoob in the Kenny A. v. Perdue case. The class action suit on behalf of the children in foster care in DeKalb and Fulton Counties alleges that Fulton and DeKalb Counties and the Georgia Department of Human Resources Division of Family and Children Services have violated the children's rights under state and federal laws. One aspect of this suit alleges that the counties have violated children's rights to effective assistance of counsel in deprivation cases. In an order dismissing the defendant counties' motion for summary judgment on this issue, Judge Shoob made several statements about children's rights to representation.

Who is covered by this order?

  • Currently, the order is only binding on Fulton and DeKalb counties.

  • The right to counsel extends to all children involved in deprivation and TPR (termination of parental rights) proceedings, not merely those children already in foster care.

According to the order, do children have a right to an attorney?

  • Yes, children have the right to legal counsel.

    • ?As parens patriae, the government?s overriding interest is to ensure that a child's safety and well-being are protected. such protection can be adequately ensured only if the child is represented by legal counsel throughout the course of the deprivation and TPR proceeding.(p. 18)*

  • Not just counsel but effective counsel

    • Judge Shoob uses the guidelines of the National Association of Counsel for Children, which state that to be effective a child advocate attorney should represent no more than 100 individual clients at a time (p. 21). The order lists the minimum legal tasks required when representing deprived children. (p. 20)

  • Authority for appointing counsel:

    • Children are parties to the case. (p. 10)

    • O.C.G.A. §15-11-6(b) requires appointment of counsel for all parties at all stages of any proceeding alleging deprivation. (p. 9-13)

    • The Due Process Clause of the Georgia Constitution requires appointment of counsel to protect the child's liberty interests that are at stake in deprivation proceedings. (p. 13-16)

According to the order, do children have a right to a guardian ad litem (GAL)?

  • Yes, the juvenile court shall appoint a guardian ad litem. (p. 12)

  • There is no conflict in requiring the appointment of both an attorney and a GAL, and, in fact, Georgia law expressly requires appointing both an attorney and a GAL. (p. 12)

  • Authority for appointing a GAL:

    • O.C.G.A.§15-11-9(b) requires the appointment of a GAL for a child who is a party to the proceeding if the child has no parent, guardian, or custodian appearing on the child's behalf or if the interests of the parent, guardian or custodian conflict with the child's interests. (p. 12)

    • The Attorney General of Georgia has found that there is an inherent conflict of interest between a child and his parent or caretaker in a deprivation proceeding. (p. 11)

Why do children need an attorney?

  • Children have fundamental liberty interests at stake in deprivation proceedings, which include a child's interest in her safety, health, well-being, maintaining the integrity of the family unit and in having a relationship with her biological parents. (p. 14)

  • Children have a due process right to protection of these liberty interests under the Due Process Clause of the Georgia Constitution.

What does this opinion mean for Georgia?

  • This order does not end the Kenny A. case. The order limits the issues for trial on the allegations related to representation to whether DeKalb and Fulton Counties are providing effective assistance of counsel.

  • This ruling is a persuasive interpretation of state law and is not binding on state courts.

What does this opinion mean nationally?

  • Attorneys across the country who are concerned with the representation of children in child abuse and neglect proceedings are talking about this order and analyzing the impact it may have across the country.

  • Although the order is based on Georgia statutes and the Georgia Constitution, Judge Shoob states that children have protection under the U.S. Constitution and are entitled to constitutionally adequate procedural due process when their liberty or property rights are at stake. (p. 13) The way that Judge Shoob structured his findings in the order indicates to attorneys around the country that the same conclusions would be reached under the U.S. Constitution, which would have widespread implications for children across the country.

* All quotes are from Judge Shoob's Order in Kenny A. v. Perdue, filed on Feb. 8, 2005 in the Clerk's Office of the United States District Court, Northern District of Georgia, Atlanta Division.