The CASA Letters
Documentation of correspondence between Andrew Vachss and employees and supporters of CASA
09/25/89 (Mon) 09:55
Dr. Ilene Gerber, Circuit Director
Guardian Ad Litem Program
Palm Beach County Courthouse Annex
307 North Dixie Highway
Room 404
West Palm Beach, Florida 33401
Dear Dr. Gerber:
The remarks attributed to me appear to be accurate. I do, in fact, advocate the use of attorneys to represent children in child protective cases. In response to the points you raised:
• I am certain the use of GAL is cost effective. That much is axiomatic. I was not made aware of your criteria for determining quality effectiveness, and frankly doubt that such is the case.
• There are many cheaper ways to do many things. I think selecting this method "on behalf of" a constituency which cannot vote is inherently unfair.
• The CASAs in New York are not attorneys. However, in every child protective case, the subject child is independently represented by an attorney regardless of the presence of a CASA. Thus, they are adjuncts, not substitutes.
• I don't purport to speak for all attorneys. I can speak for myself. My cases are monitored (and the appropriate motions, applications, and interventions made) until such time as the child is successfully re-united with his or her family, adopted, reaches the age of majority, or the matter is otherwise concluded.
• Regardless of motivation, no non-lawyer can represent a child in terms of the totality of that child's needs. Your system appears to reply upon the government's attorney to do this. Most jurisdictions recognize the inherent conflict of interest in such a system. A GAL is limited to such "advocacy" as a court will permit in its own discretion. A GAL cannot appeal a bad decision, legally intervene when a placement is inappropriate, seek the removal of an inadequate caseworker ... the list is endless. A GAL may be a friend, but in the combat arena of the courtroom, a GAL is a toothless tiger.
• Yes, I am advocating that legal counsel to children be paid. You pay legal counsel for accused criminals—I cannot see why victims should be entitled to less.
• I think such payment is an investment. My experience in this field (résumé on request) teaches that today's victim is tomorrow's predator, and that adequate representation at the child protective phase often saves a fortune in legal fees later. Not to mention lives.
• Your statement that GALs have "effectively" represented more than 3,000 children to date is an expression of opinion, not fact. The United States Supreme Court has defined "effective assistance of counsel." Non-lawyers could not meet that standard. Thus, your position is simply that children who are the subject of child protective proceedings are not entitled to counsel. I profoundly disagree.
• Does the GAL have a role? Certainly. Should that role result in the disenfranchisement of children? No.
Andrew H. Vachss
AHV:rx
10/02/89 (Mon) 09:11
Jane H. Shaeffer, Esq.
State Director, Guardian Ad Litem Program
Supreme Court Building
Tallahassee, Florida 32399-1900
Dear Ms. Shaeffer:
I'm sure Dr. Gerber has shared her letter to me and my response, so I won't waste your time by repeating the contents of either. I'm sorry, but I cannot respond to adjectives like "successful" absent some definition of the term. There is no doubt that your program saved (short-term) money. Any other claim is surely more difficult to quantify than you claim.
Your "model" confuses me. I don't understand how attorneys do the "legal work" while lay people do the "fact-finding." And I am utterly baffled by your perception that "understanding of the child's needs and wishes" is best left to non-lawyers. National CASA may "find" this is best—National CASA is hardly my idea of a disinterested, objective evaluator of its own programs. Any additional services offered to the subjects of child protective litigation is a plus—any substitution of counsel by lay people (regardless of justificatory rhetoric) is not.
I appreciate your willingness to hear from me. However, I don't see the point of a debate conducted in a Star Chamber. If the subject of actually providing counsel for children were on the table, I'd be happy to participate.
Andrew H. Vachss
AHV:rx
12/26/90 (Wed) 11:08
David W. Soukup, Esq.
Levinson, Friedman
One Union Square
600 University Street
Suite 2990
Seattle, Washington 98101-4156
Dear Mr. Soukup:
If I misunderstand the role of CASA volunteers, it is perhaps because various CASA organizations (purporting to speak for the National), have publicly taken the position that "a child's voice in court should be a CASA volunteer." See enclosed (with apologies for the photo-reduction), from Mississippi Voices for Children and Youth, Vol. 5, No. 2, April, 1990. Several CASA/GAL programs, Florida's chief among them, have often stated that attorneys have no place in abuse/neglect proceedings. I continue to oppose that position.
No "additional" resources are "threatening" to me. In fact, I use my own workers to conduct interviews with subject children specifically for the reasons you correctly cited. Nor am I threatened by the oft-stated position that "children's lawyers" are (incompetent, lazy, disinterested, etc.) "not as effective" as CASA volunteers. I do note, with interest, that you talk of exploring the role of a CASA "particularly in conjunction with the role of a competent child's attorney" [emphasis supplied], and would note that attorney incompetence is actionable — what is the remedy for the same defect in a CASA volunteer?
I don't wish to quarrel — we are on the same side. I only wish that those CASA programs which advocate the elimination of attorney representation for children would heed the National's voice.
Andrew H. Vachss
AHV:rx
enc:
06/11/91 (Tue) 06:53
Beth Waid, Executive Director
National Court Appointed Special Advocate Association
2722 Eastlake Avenue, E.
Suite 220
Seattle, Washington 98102
Dear Ms. Waid:
Your letter of May 30th just arrived. It is interesting that you charge me with "misrepresentation" of CASA's position as to "a child's voice in the courtroom" and cite a letter to me (of 12/21/90) from your President, David Soukup as support for your position.
Enclosed is a copy of my letter to Mr. Soukup dated 12/26/90. This was in response to the letter you cited. Within it, I pointed out the specific quote, the source of that quote, and the attribution to National CASA. I invited Mr. Soukup to disclaim the quote.
My letter was never answered.
Your invitation to observe CASA in action is unnecessary. This all started with an attack on me and my position by Florida CASA after I did some work there.
I will continue to advocate for what you call the New York system: attorneys representing children in abuse and neglect (and other related) matters. If CASA can provide assistance, that is a plus. It is not a substitute and, in my opinion, never will be.
Andrew H. Vachss
AHV:rx
enc:
cc: Sandra Thaler-Gerber, Esq.
04/11/90 (Wed) 13:29
Dear Sue:
This is a separate letter from the other one enclosed. I made it separate because, for the first time since I've known you, I'm deeply disappointed in Mississippi Voices. I find it bloody damn amazing that you would print the self-promotional piece by CASA on page 2 of the April issue without even inquiring as to the basis of their positions. For example, take their point #5: A child's voice in court should be a CASA volunteer. They go on to state, as if it were a fact: "studies prove that CASA volunteers are the most effective voices for children in court." What "studies," Sue?
Don't you see what this is really about? It means that children in abuse and neglect cases won't have lawyers. Do you really believe some volunteer, untrained in the law, can be a more effective advocate for a child?
I have enclosed some of the correspondence I have received on this issue, and my blunt responses. If we're going to justify this nonsense on the ground of saving money, why not have volunteers perform brain surgery on kids ... that would really save us some money. After all, they're only kids, right?
Am I supposed to believe that some warm, caring (self-appointed, self-regulated) volunteer would do a better job than I do for kids in the courtrooms?
Do you read your own paper? On page 9, you cite a case [The Guardian] in which the courts held that "volunteers" don't qualify for the "attorney-client" privilege. No confidentiality. Is that your idea of "more effective" representation?
I also enclosed a legal definition of CASA for you ... note, such people are agents of the court (!), not the child.
Can volunteers file motions, challenge decisions, cross examine witnesses, bring orders to show cause, etc.? No. They can be warm and caring.
How come we don't have CASAs for people accused of crimes? Because they are playing for high stakes, right? Don't you think an abused child ordered to return "home" because some volunteer's personal philosophy dictates it is playing for high stakes too? Florida could find two dozen lawyers for Ted Bundy, but they can't find one for an abused child. No, they have a CASA instead.
You couldn't sell this crap to a retarded moron, if that moron was an adult. But when it comes to kids ... sure!
Where's the Bar Association and the Grievance Committee to discipline CASAs? Where's the Code of Ethics? Where's the right to appeal for Ineffective Assistance of Counsel? You want to give this incredible power to self-appointed people ... I don't.
I think the whole idea of CASA instead of counsel for abused and neglected kids is another form of child abuse, and it is pernicious in the extreme.
I could go on and on for weeks on this subject. I'm just amazed you would allow people to quote "studies" that prove "effectiveness" with a challenge. Would you let VOCAL do that? I'm working like a beast trying to get more lawyers involved in the struggle for justice for kids ... maybe I should give it up and recruit a few more volunteers so they can play lawyer and leave kids with no remedy.
Next time the woman who wrote your article gets herself in trouble, you think she's going to hire an attorney or look for a volunteer?
08/01/90 (Wed) 09:01
Edward Fulmer
4728 Long Branch Avenue
San Diego, California 92107
Re: Representation of Children - Abuse/Neglect Proceedings
Mr. Fulmer:
Your letter of July 24th just received, faithfully forwarded by Knopf. I respect and admire your commitment to justice for children, and commend your efforts on their behalf. That being said, I profoundly disagree with your conclusions.
I am one of those attorneys you characterize as incompetent, disinterested, and financially motivated. Writing books isn't my real work — see enclosed short-form résumé and representative sample of "profile" [with apologies for any journalistic hyperbole you might detect] for a better illustration of what I do. The books are merely an organic extension of my real work — a way of preaching my own particular gospel to a wider audience.
And that gospel most assuredly does not include elimination of professional counsel for children to be replaced by volunteers.
I am certain the use of GAL/CASA is cost effective. That much is axiomatic. I was not made aware of your criteria for determining quality effectiveness, and frankly doubt that such is the case. And if cost were the only criteria, why not replace physicians with volunteers? Ask yourself honestly, if you were arrested, or sued, would you want to be represented by anyone other than one trained in (and qualified to practice) the law?
There are many cheaper ways to do many things. I think selecting this method "on behalf of" a constituency which cannot vote is inherently unfair.
The CASAs in New York are not attorneys. However, in every child protective case, the subject child is independently represented by an attorney regardless of the presence of a CASA. Thus, they are adjuncts, not substitutes.
I don't purport to speak for all attorneys. I can speak for myself. My cases are monitored (and the appropriate motions, applications, and interventions made) until such time as the child is successfully re-united with his or her family, adopted, reaches the age of majority, or the matter is otherwise concluded.
Regardless of motivation, no non-lawyer can represent a child in terms of the totality of that child's needs. Your system appears to reply upon the government's attorney to do this. Most jurisdictions recognize the inherent conflict of interest in such a system. A GAL/CASA is limited to such "advocacy" as a court will permit in its own discretion. A GAL/CASA cannot appeal a bad decision, legally intervene when a placement is inappropriate, seek the removal of an inadequate caseworker ... the list is endless. A GAL/CASA may be a friend, but in the combat arena of the courtroom, a GAL/CASA is a toothless tiger.
Any person putatively at the mercy of the legal system deserves an advocate, yet ... "[T]he CASA does not represent the child directly, but is rather an agent of the court." (Representing the Child Client, Soler et al, Matthew Bender: 1987, §4.06[2].) Indeed, communications from child client to CASA are not "confidential" as in attorney-client communications. In re Order Compelling Production for In Camera Review of Records of Maraziti, 559 A.2d 447 (1989).
Yes, I am advocating that legal counsel to children be paid. You pay legal counsel for accused criminals — I cannot see why victims should be entitled to less.
I think such payment is an investment. My experience in this field teaches that today's victim is tomorrow's predator, and that adequate representation at the child protective phase often saves a fortune in legal fees later. Not to mention lives.
Your statement that GAL/CASAs have "more effectively" represented children to date is an expression of opinion, not fact. The United States Supreme Court has defined "effective assistance of counsel." Non-lawyers could not meet that standard. Thus, your position is simply that children who are the subject of child protective proceedings are not entitled to counsel. Mine is diametrically opposed.
Does the GAL/CASA have a role? Certainly. Should that role result in the disenfranchisement of children? No.
I agree with you to this point: counsel for children generally deserve their reputation. But unlike indigent criminal defendants, children injured by inadequate representation have no remedy at law. The contrast is more than merely "significant," it is critical. As we both know, the child inadequately represented in the abuse-neglect forum is all-too-likely to again be represented in the criminal courts. Today's victim is tomorrow's predator, (the essential foundation of my work), and to miss the opportunity to interdict life-style criminal violence would be unforgivable.
Solutions? Better training opportunities, introduction of the material in law schools, adoption of clinical programs, heightened professional/media perception of the value of the work ... and, I'm sure, more. But whatever the solution, surrender isn't an option.
I believe our clients would be far better served by what we do best: combat. I envision a project specifically to appeal negative ["non-findings," dismissals, acquittals, what you term them] results in abuse-neglect cases. The (sole) ground for the appeal? Ineffective assistance of counsel, inviting the courts to establish a per se rule that a child "represented" by a non-lawyer is axiomatically denied that which is guaranteed to all criminal defendants. As you know, even a law graduate who, for some reason or another is not admitted to practice, can not, in the view of the appellate courts, provide effective assistance of counsel to a criminal defendant, and any conviction obtained under such circumstances will be reversed.
The goal? Not to eliminate CASA. I agree with you that this offers at least the potential for a most valuable adjunct. One such adjunct could well be monitoring of effective assistance of counsel so that the child has a remedy.
In conclusion, if lawyers are not performing up to standard, the task is to enforce those standards, not replace the lawyers with volunteers. Yes, I intend to continue to speak out on "appropriate representation for every abused child." And I will let my actions continue to speak for themselves as well. If I thought my clients would be better served by CASA, I would step aside.
That, however, is not my belief.
Andrew H. Vachss
AHV:rx
enc: