Parent’s Attorney Role in Improving Reunification Outcomes Mimi Laver Director, Legal Education

1. Parent’s Attorney Role in Improving Reunification Outcomes Mimi Laver Director, Legal Education ABA Center on Children and the Law Vivek Sankaran Clinical Assistant Professor University of Michigan Law School Elizabeth Thornton Staff Attorney ABA Center on Children and the Law

2. 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

3. HOW COULD QUALITY PARENT REPRESENTATION HAVE HELPED NANCY?

4. 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

5. 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.

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

7. Improved Advocacy – What does it look like? The best parents’ attorneys: Spend time getting to know their clients Know their work outside the courtroom is at least as important as in-court advocacy Know 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 alone Identify their clients’ parenting strengths

8. 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

9. 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

10. Elements of StandardsStandards fall into several categories General – includes: participating in local training and mentoring understanding relevant laws protecting parents’ decision-making rights representing in pre-petition phase of case avoiding continuances communicating with other professionals

11. Elements of StandardsRelationship with the Client Relationship with client, includes: empower client to direct representation duty of loyalty provide contact information communicate/counsel client regularly provide documentation awareness of conflicts missing parent issues incarcerated and mentally ill parent issues cultural competency

12. Elements of StandardsInvestigation and Discovery Investigation includes: conduct thorough investigation interview client before each hearing Discovery includes: review agency case file obtain necessary documents use formal discovery methods as needed

13. Elements of StandardsCourt Preparation Court preparation includes: develop case theory and timeline make all filings timely/ research legal issues engage in case planning advocate for regular visitation engage in settlement negotiations and mediation prepare all witnesses including client obtain expert witnesses and interview opposing counsel’s experts

14. Elements of StandardsHearings Hearings includes: prepare for hearings, motions and objections present/cross examine witnesses participate in jury selection request closed proceedings if appropriate make opening and closing prepare findings of fact, conclusions of law and orders

15. Elements of StandardsPost Hearing Post hearings/appeals includes: review court orders for accuracy/ review with client make efforts to ensure client abides by order discuss appeal with client file appellate paperwork timely request expedited appeal communicate results to client

16. Elements of StandardsManagers and Court Standards also include: Obligations of Attorney Managers 11 black letter charges Role of the Court 11 suggestions for the Court to follow

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

18. 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.

19. 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

20. 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

21. Individual ProgramsCenter for Family Representation – NYwww.cfrny.org Program 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”

22. Individual ProgramsCenter for Family Representation 2004- 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.

23. Individual ProgramsCenter for Family Representation 2007-2008 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.

24. BARRIERS TO QUALITY REPRESENTATION

25. 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.

26. 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

27. 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.”

28. 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.

29. 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.

30. Low pay leads to • High Caseloads • High Turnover • Limited Supply of Parents’ Attorneys • Limited Scope of Representation • Holistic representation is rarely seen • Administrative advocacy is rare

31. 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

32. 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

33. 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.

34. 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.

35. Barriers to Quality Representation:Michigan Assessment Findings • 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.

36. Barriers to Quality Representation:Michigan Assessment Parents’ 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 hearme…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.”

37. 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?

38. 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/

39. Contact Us: • Mimi Laver, laverm@staff.abanet.org • Vivek Sankaran, vss@umich.edu • Elizabeth Thornton, thorntoe@staff.abanet.org