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Child Law PracticeVol. 28 No. 7 September 2009 Helping Lawyers Help Kids

Whats Inside: 98 CASE LAW UPDATE106 VIEWPOINT

Protecting Newborns fromParents Who Abuse Drugs orAlcohol

110 HEALTH MATTERSAdvocacy for Young orExpectant Parents in FosterCare

E-mail: childlawpractice@staff.abanet.org Internet: http://www.childlawpractice.org u

National groups including thePew Commission on Children inFoster Care, the American Bar Asso-ciation Center on Children and theLaw, and the National Associationof Counsel for Children have recog-nized the need to strengthen legaladvocacy on behalf of parents. Anumber of states have also begun toreform their systems of appointinglawyers for indigent parents to betterserve families. A national movementis afoot to ensure all parents, regard-less of income, receive assistancefrom effective, adequately compen-sated attorneys in all cases.

Despite these efforts, many bar-riers remain to providing counsel forparents in child welfare cases: Federal laws fail to provide an

absolute right to counsel forparents.

Several jurisdictions deny indi-gent parents a right to court-appointed counsel in dependencyand termination of parental rightsproceedings.

In some jurisdictions, although atechnical right exists, parents

attorneys are underpaid andoverworked, receive inadequatetraining, are not appointed in atimely manner, and lack crucialsupports to zealously representparents.

Legal remedies to address theerroneous deprivation of counselare inadequate and in some states,parents cannot bring ineffectiveassistance of counsel claims.

This article provides a snapshotof the current state of parent repre-sentation across the country and rec-ommends steps to take to strengthenthis important right.

Why Parent RepresentationMattersNational and state efforts to improvelegal representation for parents showthat this work matters and is essen-tial for a well-functioning childwelfare system. Lawyers for parentsplay many critical roles:

Safeguarding the libertyinterests of all parentsA parents right to raise his or her

child has been recognized by theUnited States Supreme Court as oneof the oldest, and most sacred ofconstitutional rights.1 Not surpris-ingly, courts have described childprotection cases as working aunique kind of deprivation onfamilies.2 Before taking custody ofchildren, the state must proveparental unfitness.3 Evidence ofunfitness must be clear and con-vincingthe highest standard ofproof used in civil casesbeforeterminating parental rights.4 Statelaws also protect these rights.Parents lawyers prevent govern-ment overreaching and protectparents basic civil liberties.

Reducing the unnecessary entryof children into foster careEach year, far too many childrenneedlessly enter foster care,costing states millions of dollars and

Protecting a Parents Right to Counsel in Child Welfare Casesby Vivek S. Sankaran

IN PRACTICE

(Continued on page 102)

Anational consensus is emerging that zealous legalrepresentation for parents is crucial to ensure that the childwelfare system produces just outcomes for children. Parentslawyers protect important constitutional rights, prevent theunnecessary entry of children into foster care and guide parentsthrough a complex system.

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inflicting unnecessary emotionaltrauma on children. Outcomes forchildren entering foster care arebleak. Children are often movedmany times, are disconnected fromtheir families, and are at-risk offailing academically.5 Not surpris-ingly, children raised by the statewho age out of the system farepoorly with increased odds ofdropping out of school, incarcera-tion, and homelessness.6 By chal-lenging governmental decisions toplace kids in foster care, parentsattorneys play a crucial role inensuring that only children whotruly need the states protectionenter foster care.

Guiding parents throughcomplex proceedingsChild welfare proceedings aregoverned by many interrelatedfederal and state laws and involvemany professionalssocial work-ers, guardians ad litem, courtappointed special advocates,therapists, and judges. Although thegoal in most cases is reunification,frequently parents disengage withthe process because they areoverwhelmed, confused, andfrightened. They do not know howto work with their caseworker orunderstand the purpose of adminis-trative meetings or court hearings.The trusted advice of an advocatereassures the parent that he or she isnot alone in navigating the childwelfare labyrinth and helps theparent reach decisions consistentwith legal and ethical mandates.The advocate also ensures theparents voice is heard both in andout of court. These and otherresponsibilities of parents counselempower parents in a system thatoften feels isolating.

Improving the qualityof decision makingBy challenging unreliable informa-tion and producing independent

evidence of their clients strengthsand supports, attorneys ensure courtsonly rely upon the most accurateinformation available before makinglife-altering decisions. Withoutzealous parent representation, courtslack an important perspectivethatof the parent with whom reunifica-tion is soughtwhich increases thelikelihood that a wrong decision willbe reached.

Expanding optionsavailable to courtsAttorneys propose creative alterna-tives such as guardianships or othercustody arrangements, intensive in-home services to preserve a childsplacement in the home, or extensivevisitation between parents andchildren supervised by familymembers, friends, or neighbors.Parents attorneys can also help theirclients access community-basedservices such as substance abusetreatment, mental health counseling,or parenting classes. Parents may beable to access these services beyondthe duration of the child welfarecase.

Improving case outcomesLimited data suggests the rolesparents lawyers play in child welfarecases dramatically improve out-comes for children. In 2000, theWashington State Office of thePublic Defender, funded by the statelegislature, created a parents repre-sentation pilot project that enhancedlegal representation to parents bylowering caseloads, increasingcompensation, and providing sup-port services, such as experts, to thelawyers. Results after three yearsfound that: hearings took place faster; reunification rates increased by

over 50 percent; the rate of terminations of parental

rights decreased by nearly 45percent; and

the rate of children aging out of

the foster care system declined by50 percent.7

These results reaffirmed thatstrong parent representation im-proves outcomes for children andshowed the enhancement of par-ents representation has the potentialto save increasing millions in statefunding on an annualized basis.8

Results from the Center for Fam-ily Representation,9 an interdiscipli-nary law office in New York Cityproviding high quality representa-tion for parents, reveal similar find-ings. While the median length ofstay for children in foster care inNew York was 11.5 months in 2007,the length of stay for children whoseparents were represented by theCenter was three months. Calcula-tions by the Center showed the citysaved over two million dollars dueto the reduced time these childrenspent in foster care. Although morestudies are needed to explore howparent representation improves out-comes for children, the initial resultssupport this relationship.

Current State of theRight to CounselParents federal right to counselUnlike criminal cases in which theright to counsel is guaranteed by theSixth Amendment to the Constitu-tion, in child protection cases, thereis no absolute federal constitutionalright to counsel. In Lassiter v.Department of Social Services,10 theUnited States Supreme Court heldthat the Due Process Clause of theFourteenth Amendment does notmandate the appointment of counselin every termination of parentalrights case. Instead, the decisionmust be made by the trial courtdepending on the case circum-stances. One legal scholar describedthe Lassiter holding as standing forthe proposition that a drunkendrivers night in the cooler is agreater deprivation of liberty than aparents permanent loss of rights ina child.11

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Despite failing to recognize anabsolute right to counsel for parentsin termination proceedings, the Su-preme Court observed that a wisepublic policy, however, may requirethat higher standards be adoptedthan those minimally tolerable underthe Constitution.12 The Court rec-ognized that [i]nformed opinionhas clearly come to hold that an in-digent parent is entitled to the assis-tance of appointed counsel not onlyin parental termination proceedings,but in dependency and neglect pro-ceedings as well.13 The opinionconcludes with an explanation thatthe decision in no way implies thatthe standards increasingly urged byinformed public opinion and nowwidely followed by the States areother than enlightened and wise.14

Parents right to counselunder state lawAlthough no federal statutory rightto parents counsel exists, fortu-nately most states have followed theCourts guidance and providecounsel to parents in dependencyand termination proceedings. Atleast 38 states have enacted statutesthat provide attorneys for parents inevery dependency case, and all butfive states provide counsel in everytermination of parental rights case.A number of state supreme courtshave also interpreted their stateconstitutions to mandate appointingcounsel in these cases.15 Addition-ally, across the country, institutionalproviders, such as the Center forFamily Representation in New YorkCity, Community Legal Services inPhiladelphia, and the Office ofPublic Defense in Washington State,among others, have emerged toprovide high quality, interdiscipli-nary representation to parents. Afew law schools also have studentclinics focusing on such advocacy.16

Current challengesDespite this progress, a number ofchallenges remain:

Discretionary appointments. Inabout 12 states, the decision toappoint counsel for parents independency proceedings is discre-tionary.17 In five of these jurisdic-tions, the appointment of counselprior to a permanent termination ofparental rights hearing is also notabsolute.18 For example: In Minnesota, a court only has to

appoint counsel in a case inwhich it feels that such an ap-pointment is appropriate.19

In Hawaii, counsel is only re-quired when the interests ofparents are not representedadequately by another party whois represented by counsel.20

Virginia law only mandatescounsel at the adjudication andTPR hearings but not for disposi-tional hearings.21

Mississippi has no statute govern-ing appointment of counsel.

These examples show how frag-ile the statutory right to counsel re-mains in many parts of the country.In these states, a parents ability toreceive assistance of counsel maydepend on the county where he orshe lives or the current fiscal situa-tion. Without a statutory right to le-gal representation, parents may alsolack the legal ability to bring inef-fective assistance of counselclaims.22

Legal remedies when counsel isnot provided. Problems exist evenin those jurisdictions in which anabsolute statutory right to counselexists. In these states, the legalremedies available to parents whentrial courts erroneously deny themtheir right to counsel are ofteninadequate. In most states, theerroneous deprivation of counsel atstages other than the final termina-tion of parental rights hearing isgoverned by a harmless-errorstandard, which is difficult to meet.Parents must show the specific harmcaused by the absence of counsel,even when counsel was deprived for

years.23 Yet, often that harm isdifficult to show because the recordis undeveloped since the parentlacked a lawyer. Generally, only theerroneous denial of counsel at thefinal TPR hearing results in rever-sals of child welfare decisions.24Thus, trial courts that fail to appointcounsel to parents for years facefew consequences so long as anattorney is appointed at the finalhearing. Michigan Supreme CourtJustice Maura Corrigan noted thisproblem. She observed, [I]n manycases, errors . . . will effectivelyprevent a respondent from evershowing that his lack of participa-tion and representation affected theoutcome; because no one will havedeveloped a record in support of hisinterests, it may be difficult if notimpossible for him to provide anoffer of proof to support his claimthat the proceedings might haveended differently.25

Quality of advocacy. Even whencounsel is appointed, parentsattorneys are often unable to pro-vide zealous advocacy on behalf oftheir clients, a conclusion noted bymany analyzing the system. A 1996New York Times editorial observedthat these lawyers are often not upto task.26 In 2003, a state court inNew York concluded that the systemof parent representation fails toconfirm the confidence and reliabil-ity in our system of justice.27 Morerecently in 2005, the Muskie Schoolof Public Service and the AmericanBar Association concluded, withrespect to parent representation inMichigan, that [w]hat was reportedto evaluators . . . and what wasobserved in court hearings falldisturbingly short of standards ofpractice.28 These observations arebeing made across the country.

Systemic weaknesses. Systemicinadequacies are a major reasonwhy parents often do not receivequality legal assistance. Attorneysmay not be appointed to a case in atimely manner and compensation

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for attorneys varies across thecountry. Attorneys are often under-paid, forcing them to carry highcaseloads to make a living. Oftenattorneys are paid a low set fee, asopposed to an hourly wage, whichprovides a structural disincentive towork hard on cases. Additionally,states may not pay attorneys forwork outside court. This work mayinclude administrative meetings atchild welfare agencies, or advocacyin collateral proceedings such ascustody, guardianship, or adoptioncases, which may be crucial inresolving the child welfare case.High caseloads also can causeattorneys to substitute for oneanother in cases, denying the parenta dedicated advocate who knowsthe case.29

Lack of access to supports andresources. Most attorneys repre-senting parents are court-appointedsolo practitioners with limited accessto resources and institutional sup-port. They are unable to hire ex-perts, investigators, or social work-ers, and are at a significant disad-vantage when interacting with stateagencies with greater resources.They may also lack access to legalresearch databases, such as Lexis-Nexis or Westlaw, and may not havecolleagues readily available to giveadvice or support. Comprehensivetraining programs for parentsattorneys are relatively new and fewstates have rigorous training require-ments for attorneys accepting courtappointments. Thus, in addition toinadequate pay, few parents attor-neys have the tools to zealouslyrepresent their clients.

Next StepsSome steps that policymakers andadvocates can take to strengthenparents right to counsel include:

Advocate for a uniform federaland state statutory right toparents counsel.Federal laws set many requirements

that state child welfare systems mustmeet to receive federal funds.Currently, the federal Child AbusePrevention and Treatment Act(CAPTA) mandates that childrenreceive the assistance of a guardianad litem in child welfare cases.30 Nosimilar requirement exists for statesto provide parents counsel. Byincluding this provision in federallaw, those states currently failing toprovide parents with an absoluteright to counsel in all child welfareproceedings will be forced to do soor risk losing federal dollars.

Work with state courts to fullyassess parent representation inyour state. Identify areas forimprovement and collaborateon solutions.A number of statesincludingColorado,31 Massachusetts, Califor-nia and Michiganhave conductedcomprehensive self-assessments oftheir parent representation systemsto identify strengths and weaknessesand to develop solutions to prob-lems. These reports, some of whichhave been funded through CourtImprovement Project funds, haveprovided the information andmomentum to implement significantreforms. Based on the results ofthese and other studies, some states,such as North Dakota, Arkansas,and Connecticut, have moved to astatewide system of representationwith uniform compensation ratesand training requirements.32

Work with private foundationsand donors to fund pilot parentrepresentation projects.Many private organizations acrossthe country provide excellent legaladvocacy on behalf of parents.Many of these programs werecreated through private grants fromindividuals and foundations. Theseorganizations also provide invalu-able support and resources to court-appointed attorneys. Advocatesacross the country should work with

the private sector in their states toexplore how to create similar orga-nizations in their jurisdictions. Anexample is the Detroit Center forFamily Advocacy, a new public-private partnership aimed at repre-senting parents before a childwelfare case is petitioned to divertcases from the court system.33

Join a national community ofparents lawyers.For years, parents lawyers remainedisolated without a community at thenational level to share strategies,seek reforms, and find support. Thisis changing. The American BarAssociation Center for Children andthe Law, with the backing of CaseyFamily Programs, the Annie E.Casey Foundation, and the ChildWelfare Fund, has created a Na-tional Project to Improve Represen-tation of Parents Involved in theChild Welfare System. The projecthosted the first national parentsattorney conference in May 2009 inWashington, DC, and hosts a listserv for parents attorneys to shareinformation and resources. Oneobjective of the project is to create anational organization to supportparents attorneys and strengthenparents rights, including their rightto counsel. Parent attorneys willbenefit through involvement in theseand similar projects. To learn moreabout the project, visitwww.abanet.org/child/parentrepresentation/home.html

ConclusionStrong advocacy on behalf ofparents plays a crucial role inensuring the child welfare systemmakes good decisions for children.Zealous legal representation canproduce better outcomes, savemoney, and reduce the number ofchildren who need to enter fostercare. Although some progress hasbeen made to strengthen this right,much work still needs to be done.

Vol. 28 No. 7 ecuring ABA Child Law Practice www.childlawpractice.org 105

Professor Vivek S. Sankaran is aclinical assistant professor of law inthe Child Advocacy Law Clinic atthe University of Michigan LawSchool. Professor Sankaran sits onthe steering committee of the ABANational Project to Improve Repre-sentation of Parents Involved in theChild Welfare System. He can bereached at vss@umich.edu.

This article is one in a series basedon a presentation at the FirstNational Parents Attorneys Confer-ence, held May 2009 by the ABANational Project to Improve Repre-sentation of Parents Involved in theChild Welfare System. Learn moreat: www.abanet.org/child/parentrepresentation/home.htmlEndnotes1 See, e.g., Troxel v. Granville, 530 U.S. 57

(2000).2 M.L.B v. S.L.J., 519 U.S. 102 (1996).

3 Stanley v. Illinois, 405 U.S. 645 (1972).

4 Santosky v. Kramer, 455 U.S. 745 (1982).

5 Research by Professor John Doyle documents

the negative effects of placing children in fostercare. Professor Doyles papers are available atwww.mit.edu/~jjdozle/research.html.6 A recent study by researchers at Wayne State

University documents problems faced bychildren aging out of foster care. The results ofthe study are available at http://sun.science.wayne.edu/~ptoro/ageoutfu.html.7 National Council of Juvenile and Family Court

Judges. Improving Parents Representation inDependency Cases: A Washington State PilotProgram Evaluation, 2003. Available atwww.opd.wa.gov/Reports/DT-Reports.htm.8 Bridge, Justice Bobbe J. and Joanne I. Moore.

Implementing Equal Justice for Parents inWashington: A Dual Approach. Juvenile andFamily Court Journal, Fall 2002.9 For more information about the Center for

Family Representation, visit www.cfrny.org/.10

452 U.S. 18 (1981).11

Besharov, Douglas. Terminating ParentalRights: The Indigent Parents Right to Counselafter Lassiter v. North Carolina. Family LawQuarterly 15, 1982, 205, 221.12

Lassiter, 452 U.S. at 33-34.13

Ibid., 34.14

Ibid.15

See, e.g., In re Shelby R., 804 A.2d 435(N.H. 2002); In re A.S.A., 852 P.2d 127 (Mont.1993); V.F. v. State, 666 P.2d 42 (Alaska 1983).16

Both NYU Law School and the UDC DavidA. Clarke School of Law have legal clinicsdedicated to representing parents in child

welfare cases. Students in the University ofMichigan Law Schools Child Advocacy LawClinic represent parents, children, and countyagencies in these cases.17

Statutes in Hawaii, Indiana, Minnesota,Missouri, Nevada, New Jersey, Oregon,Wisconsin, and Wyoming provide judges withdiscretion to appoint counsel in dependencycases. In Virginia, the right to counsel is onlyguaranteed at the adjudication and termination ofparental rights hearings. In Mississippi, nostatute governs the appointment of counsel inchild welfare cases. This author could not locatea statute addressing the issue in Idaho.18

In Hawaii, Mississippi, Minnesota, Nevada,and Wyoming, there is no absolute right tocounsel in termination of parental rightshearings.19

Minn. Stat. 260C.163.20

Hawaii Rev. Stat. 587.34.21

Va. Code Ann. 16.1-266.22

See, e.g., In re N.D.O., 115 P.3d 223 (Nev.2005); In re Heather R., 694 N.W.2d 659 (Neb.2005).23

See, e.g., Meza-Cabrera v. Arkansas Dept ofHuman Services, 2008 WL 376290 (Ark. Ct.App. 2008); Arthur v. Div. of Family Services,867 A.2d 901 (Del. 2005).24

See, e.g., In re J.M.B., 676 S.E.2d 9 (Ga. Ct.App. 2009); In re Torrance P., 724 N.W.2d 623(Wis. 2006).

25 In re McBride, 766 N.W.2d 857, fn 13 (2009)

(dissenting opinion).26

Giving Overmatched Parents a Chance. TheNew York Times, June 17, 1996, A14.27

NY County Lawyers Association v. State,763 N.Y.S.2d 397 (Sup. Ct. 2003).28

Muskie School of Public Service andAmerican Bar Association Center on Childrenand the Law. Michigan Court ImprovementProject Reassessment, 2005, 155. Available atwww.courts.michigan.gov/scao/resources/publications/reports/CIPReassessmentReport090605.pdf.29

For example, the Michigan CourtImprovement Project Reassessment observedthat parents attorneys in Wayne County,Michigan meet in the cafeteria and deal themorning cases like cards, trading cases backand forth based on who is going to be in whichcourtroom that day. Ibid., 153.30

42 U.S.C. 5106a(b)(2)(A)(xiii).31

For a detailed summary of the steps taken bythe Colorado Supreme Court to improve parentrepresentation, see www.courts.state.co.us/Courts/Supreme_Court/Committees/rptf.cfm.32

Information about reforms in Connecticut,including the creation of the Commission onChild Protection, can be found at www.ct.gov/CCPA.33

More information about the Detroit Center forFamily Advocacy can be found atwww.law.umich.edu/centersandprograms/ccl.

Child Safety: A Guide for Judges and Attorneysby Therese Roe Lund, MSSW, and Jennifer Renne, JD

As a child welfare practitioner, you may struggle with thesequestions: How do you know whether a childs severe injury represents

a pattern of dangerous family conditions or is a one-timeincident?

What criteria do you use to determine whether a child is safe? How do you decide whether to return a child home? What information do you need from the agency to make these decisions?

This Guide, published by the National Resource Center for Child Protective Ser-vices and the National Child Welfare Resource Center on Legal and Judicial Issues,helps judges and lawyers address these and other issues by providing a framework forunderstanding how safety decisions are made. Safety planning in the child welfaresystem is a shared responsibility, but ultimately the court must make critical safetydecisions such as whether to remove a child and when to return a child home.

Judges rule on these choices every day, but often lack a decision-making struc-ture, which can lead to following agency recommendations without a thorough in-quiry. Often after the initial removal, it is unclear what needs to change for the childto be returned. Unclear standards leads to frustration for families and their attorneys,and causes children to linger in foster care.

This Guide lays out clear standards that must be met before a child can be re-moved or returned. It provides checklists to assist judges make reunification deci-sions and considerations before terminating jurisdiction.$21.99 (bulk pricing available). Order from the ABA Service Center:800/285-2221 (PC 549-0446).

New in Print