Parent’s Attorney Role in Improving Reunification Outcomes

Mimi LaverDirector, Legal Education

ABA Center on Children and the Law

Vivek SankaranClinical Assistant Professor

University of Michigan Law School

Elizabeth ThorntonStaff Attorney

ABA Center on Children and the Law

Nancy Colon’s Story 5 children removed from her care Accused of failing to protect her children because children had

witnessed domestic violence Children placed in four different foster homes Nancy placed in shelter an hour away; could only stay for 30 days Didn’t see her children for weeks Consulted with her attorney minutes before each hearing Never met with the GAL No voice in the courtroom Children remained in care for 16 months before returning home

HOW COULD QUALITY PARENT REPRESENTATION HAVE HELPED NANCY?

Why is quality representation for parents important? Fairness and due process Better outcomes for families Empowers parents Allows courts to identify and treat core

issues Breaks the cycle

Our clients are: Poor From disadvantaged/marginalized communities Primarily women Individuals who’ve just had their children taken

away from them Confused, frightened, upset, angry, hostile,

ashamed Individuals who may have serious problems:

drug use, domestic violence, mental illness, etc.

But, our clients are also: Strong Resilient Resourceful Caring Committed Experts on their children People

Improved Advocacy – What does it look like?The best parents’ attorneys:

Spend time getting to know their clientsKnow their work outside the courtroom is at

least as important as in-court advocacyKnow how to advise clients re: how to

collaborate and navigate within the child welfare system

Are well-versed in the law and the burdens of proof

Don’t try to do it aloneIdentify their clients’ parenting strengths

Work Outside the Courtroom

Attend meetings with client Prepare client in advance Work to find relatives to help Communicate with agency workers,

service providers and opposing counsel Get involved in systems change Coordinate with legislature

National Standards Overview of Project Goals of the Project Members of Subcommittee Themes of the Standards:

• Client participation in representation• Preparation• Multidisciplinary model• Advocacy outside the courtroom

Elements of StandardsStandards fall into several categoriesGeneral – includes:

participating in local training and mentoringunderstanding relevant lawsprotecting parents’ decision-making rightsrepresenting in pre-petition phase of caseavoiding continuancescommunicating with other professionals

Elements of StandardsRelationship with the ClientRelationship with client, includes:

empower client to direct representationduty of loyaltyprovide contact informationcommunicate/counsel client regularlyprovide documentation awareness of conflictsmissing parent issues incarcerated and mentally ill parent issuescultural competency

Elements of StandardsInvestigation and DiscoveryInvestigation includes:

conduct thorough investigation interview client before each hearing

Discovery includes: review agency case fileobtain necessary documentsuse formal discovery methods as needed

Elements of StandardsCourt PreparationCourt preparation includes:

develop case theory and timelinemake all filings timely/ research legal issuesengage in case planningadvocate for regular visitationengage in settlement negotiations and mediationprepare all witnesses including clientobtain expert witnesses and interview opposing

counsel’s experts

Elements of StandardsHearings

Hearings includes:prepare for hearings, motions and

objectionspresent/cross examine witnessesparticipate in jury selectionrequest closed proceedings if appropriatemake opening and closingprepare findings of fact, conclusions of law

and orders

Elements of StandardsPost Hearing

Post hearings/appeals includes:review court orders for accuracy/ review

with clientmake efforts to ensure client abides by

orderdiscuss appeal with clientfile appellate paperwork timelyrequest expedited appealcommunicate results to client

Elements of StandardsManagers and CourtStandards also include: Obligations of Attorney Managers

11 black letter charges Role of the Court

11 suggestions for the Court to follow

Models of RepresentationCommon Aspects of Quality Representation Interdisciplinary Model Training for Attorneys Training other Child Welfare Professionals Outreach to Community Produces good outcomes for children

Individual ProgramsWA State Office of Public Defense (OPD) Parents’ Representation Program Program Goals: Reduce the number of continuances requested by

attorneys; including those based on their unavailability; Set maximum caseload requirements cases per full-

time attorney; Enhance defense attorneys’ practice standards,

including reasonable time for case preparation and the delivery of adequate client advice;

Support the use of investigative and expert services in dependency cases; and

Ensure implementation of indigency screenings of parents, guardians, and legal custodians.

Individual ProgramsWashington State OPD

To Accomplish these goals: Legislature funded pilot program in two areas, rural

and urban Increase in number of attorneys Funded support staff including paralegals, social

workers, investigators and money for defense experts Adherence to practice guidelines Increased training and support from OPD Focus on “counselor-at-law role” in the attorney-client

relationship

Individual ProgramsWashington State OPD

Evaluation Outcomes: 100% timeliness vs. 63.9% pre-pilot (permanency

hearings) 50% decrease in rate juveniles aged-out of system 53.3% increase in family reunification 44% decrease in termination of parental rights Substantial decrease in foster care costs Party satisfaction Program expansion

Individual ProgramsCenter for Family Representation – NYwww.cfrny.orgProgram Components: Initiate representation at investigation stage through

all court proceedings Interdisciplinary representation – attorneys, social

workers, parent advocates and paralegals Training and practice assistance Policy reform Visiting Project and “Cornerstone Advocacy”

Individual ProgramsCenter for Family Representation2004- 2006 Evaluation Results: Prevented placement 95% of the time in situations where

their team began working with the family during the investigation.

Achieved an average length of time in foster care of 4.5 months – compared to statewide average of more than 4 years.

Individual ProgramsCenter for Family Representation2007-2008 Evaluation Results: 50% of cases, children do not enter foster care, but stay

home with needed services. Average length of time in foster care just under 4

months. Children of parents represented by CFR spend, on

average, 73% less time in foster care than other children in the state.

BARRIERS TO QUALITY REPRESENTATION

Parent’s Right to Counsel Remains Unfulfilled No absolute federal constitutional right to counsel Lassiter v. Dep’t of Social Services

The Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not mandate the appointment of counsel in every termination of parental rights proceedings.

Determination should be made on a case by case basis depending on the facts of the case.

“A drunken driver’s night in the cooler is a greater deprivation of liberty than a parent’s permanent loss of rights in a child.”

No federal statutory right to counsel Contrast with child’s right to an advocate under CAPTA.

Most states have gone beyond the minimum standard Most states provide counsel to parents in dependency and/or

TPR proceedings.

38 states provide absolute right to counsel in dependency cases

44 states provide absolute right to counsel in termination of parental rights case.

“A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of counsel not only in termination proceedings, but in dependency and neglect proceedings as well.” Lassiter v. Dep’t of Social Services

But, not all states provide a statutory right to counsel in dependency or TPR proceedings Examples: Hawaii, Indiana, Minnesota, Wisconsin, Mississippi, Nevada

Appointments are discretionary

Example of statutory language Minn. Stat 260C.163: “if the child, parent, guardian, or custodian desires

counsel but is unable to employ it, the court shall appoint counsel to represent the . . . parents or guardian in any case in which it feels that such an appointment is appropriate.”

Ind. Code 31-32-4-3(b): “The court may appoint counsel to represent any parent in any other proceeding.”

Hawaii Rev. Stat. 587-34: “The court shall appoint a guardian ad litem for the child to serve throughout the pendency of the child protective proceedings under this chapter. The court may appoint additional counsel for the child pursuant to subsection (c) or independent counsel for any other party if the party is an indigent, counsel is necessary to protect the party's interests adequately, and the interests are not represented adequately by another party who is represented by counsel.”

Quality of lawyering is often inadequate

“Parents who are about to lose their children because of abuse or neglect are often at a legal disadvantage. . . The court appoints lawyers for the parents, drawing from panels of lawyers who are screened and certified annually. But these lawyers are often not up to the task. Many meet their clients for the first time just before rushing into court. They know nothing of the family’s background and often cannot speak the parents’ language.” N.Y. Times Editorial (1996)

New York County Lawyers’ Association v. State of New York, 763 N.Y.S.2d 397 (February 5, 2003) (observing “grim reality that . . . indigent adults in the New York City Family Court . . . are at unreasonable risk of being subjected to a process that is neither swift nor deliberate, and fails to confirm the confidence and reliability in our system of justice.”)

2005 Michigan CIP Reassessment: “What was reported to evaluators in this reassessment and what was observed in court hearings fall disturbingly short of standards of practice”

Very little advocacy done between court hearings.

Common complaints

Timing of appointments Timing often varies by county.

Lack of adequate compensation Compensation rates often vary by county.

Lack of training requirements Lack of institutional support

Most attorneys representing parents are court-appointed solo practitioners.

Low pay leads to

High Caseloads High Turnover Limited Supply of Parents’ Attorneys Limited Scope of Representation

Holistic representation is rarely seenAdministrative advocacy is rare

Legal Remedies to Address Problems are Inadequate

High standard to prove ineffective assistance of counsel Must show that counsel's performance fell below an

objective standard of reasonableness Must overcome the presumption that the challenged action

was trial strategy. Must show that there is a reasonable probability that, but

for counsel's error, the result of the proceeding would have been different.

Rarely achieved

Inadequate legal remedies to address erroneous deprivation of counsel

In most states, the erroneous deprivation of counsel at stages other than TPR is governed by harmless error analysis.

Generally, automatic reversal only occurs when the parent is deprived of counsel at the final TPR hearing

Examples Meza-Cabrera v Arkansas Dep’t of Human Services, 2008 Ark.

LEXIS 120 (Ark. Ct. App. 2008) (TPR affirmed even though incarcerated father erroneously deprived of lawyer for two years)

Arthur v Div of Family Services, 867 A.2d (Del. 2005) (TPR affirmed even though incarcerated father erroneously deprived of lawyer for 15 months)

In these and other cases, TPRs affirmed because errors were deemed to be harmless since the parents were represented at the final TPR hearing.

Barriers to Quality Representation:Michigan Assessment 2008 – Michigan AOC engaged ABA to

assess how Michigan provides representation to parents.

Methodology included collection of court orders and rule, compensation survey, attorney, judicial officer and client surveys and focus groups, court room observation and on-site interviews.

Barriers to Quality Representation:Michigan AssessmentFindings Burden of funding parent representation on counties

without state support. Attorneys skilled in court-room advocacy and have

knowledge of law. Routine use of substitute counsel. Little out-of-court advocacy for clients between hearings. Additional support needed for parents in and out of the

court room. Inadequate attorney compensation.

Barriers to Quality Representation:Michigan AssessmentParents’ Perspective “My baby’s daddy’s lawyer didn’t seem to know anything.

Some lawyers make little effort. My lawyer really likes his work; he is very compassionate...lawyers need to get to know their clients and respect them. I wish more was like that.”

“Just make me feel like you hear me…A good lawyer stays informed, calls back, checks in with clients. We don’t talk after court. Communication is the key. He expresses my wishes in court but the way he puts it, it isn’t right…My first lawyer was great, fought for me, knew what I was trying to do, how to get over the barriers….My lawyer now is slowing down…[she] doesn’t let me participate but goes along with what DHS tells her.”

Promising Practices: What’s happening around the country? Parent Representation Programs: Washington

State OPD, Center for Family Representation, Detroit Center for Family Advocacy.

National Project to Improve Representation for Parents in the Child Welfare System

National Reunification Day What’s happening where you practice?

Resources California Center for Families, Children & the Courts: http://www.courtinfo.ca.gov/programs/cfcc

Center for Family Representation: http://www.cfrny.org/

Colorado Judicial Branch: Respondent Parents’ Counsel Task Force: http://www.courts.state.co.us/supct/committees/courtimprovementdocs/rptf.htm

Committee for Public Counsel Services: Children and Family Law Program: http://www.publiccounsel.net/Practice_Areas/cafl_pages/civil_cafl_index.html

Community Legal Services of Philadelphia: http://www.clsphila.org/Content.aspx?id=179

Detroit Center for Family Advocacy: http://www.law.umich.edu/centersandprograms/ccl/cfa/Pages/default.aspx

Family Defense Center: http://www.familydefensecenter.net/

Juvenile Court Project: Parent Advocates: http://www.acbfparentadvocates.org/index.html

New York University School of Law: Family Defense Clinic: http://www.law.nyu.edu/clinics/year/famdefense/

Parental Defense Alliance of Utah: http://www.parentaldefense.org/index.asp

Washington State Office of Public Defense: http://www.opd.wa.gov/

Contact Us:

Mimi Laver, laverm@staff.abanet.org

Vivek Sankaran, vss@umich.edu

Elizabeth Thornton, thorntoe@staff.abanet.org