Hearings: The Day I Became a Family Defense Lawyer

In courtrooms across the country decisions about the lives of children and their parents are made every day.

This week, a forthcoming major study will demonstrate that high-quality, legal representation of parents by institutional providers in New York City got children with their families four months faster than those parents represented by solo practitioners.

Think about all that can transpire in four months in a child’s life – birthdays, holidays, family gatherings. In fact, ask any kid about what four months feels like (i.e. you can’t do something for four months). They will say it is an eternity.

While we should certainly celebrate the impact of this study, for those of us who have represented parents, nothing in it surprises us. I suspect that most of us recognized the dramatic power that strong parent representation can have to transform child welfare the first time we stood by a parent, which for me was back in 2004. I still remember the day vividly. It began with a phone call.

I was a young attorney in Washington, D.C. – where I had been working for three years – and after a long week, I was readying to leave the office. But then my phone suddenly rang. On the other side of the line was Laura B., a loving mother of three and a domestic violence survivor, who I had been representing in a child custody case.

Immediately upon picking up the phone, I sensed something was wrong. “Vivek,” she said. “They are coming to take my children. CPS is coming to take my children right now.” My heart froze.

Over the past year, I had seen Laura with her three children, the oldest of whom was 12, many times. She was an exemplary single mother doing the best she could do on a limited income. Yet she often struggled to make ends meet, and to keep her abusive, ex-husband away from the family. Her kids needed her. Suffice to say, I was shocked at the possibility of these kids entering foster care.

“What happened?” I asked.

“My neighbors called CPS because my oldest [the 12-year-old] was watching her younger siblings. I don’t know what to do. I’m scared.”

I quickly reassured her what we’d come up with a plan and would call her back. After I hung up the phone, I did what I knew best. I sprinted down the hall and grabbed my supervisor.

Over the next hour, my supervisor and I pleaded with an attorney representing the child welfare agency to instruct the CPS worker not to remove the children. We shared examples of Laura’s strengths as a mother and the closeness of the family. Eventually, we wore him down. He told the worker not to remove the children, but to just file a petition with the juvenile court so that the court could make the decision whether removal was warranted. The crisis was averted – for now.

The next morning, I arrived at the same courthouse at which I had been practicing for three years. Over those years, I had represented children in foster care and through that work had developed good relationships with the judges and attorneys in the courthouse. I assumed that I’d be able to leverage these relationships to help everyone realize what I saw as the truth – that this case was a big mistake.

But as soon as I set foot in the courtroom, I realized this experience would be different. When I approached the agency attorney, the caseworker and the attorney the court had appointed to represent the children – all of whom were huddled in a corner talking about my case – they quickly quieted and asked what I wanted. Their looks were not inviting. When I explained that I wanted to share with them what I knew about the family to persuade them to dismiss the case, they laughed.

“The respondent left her three children alone and also exposed the kids to an abusive batterer. I’m really concerned that your client can’t protect the kids from him. Until your client can prove she can safely care for them, the kids belong in foster care,” the children’s lawyer shouted.

“I agree,” said the agency attorney. The children can remain in foster care while your client gets services to address her issues. “We can’t expose them to any more risk.”

Perplexed, I proceeded to explain that Laura’s oldest child was 12 years old, an age at which children commonly watch siblings. I also explained that a custody order permitted the children’s father to visit them, and that there had been no allegations that the father had abused the children in any way. And most importantly, there was tons of evidence that the children were doing well.

But it didn’t matter. They wouldn’t budge. So we proceeded to the hearing.

A judge who I knew well took the bench. I promptly took a seat at counsel’s table, only to be scolded for sitting in the wrong chair. That had never happened before. When I started to speak, I was told to keep quiet, and wait my turn. I felt humiliated and embarrassed. Then, the judge asked me for my arguments on behalf of “the Respondent.” Not Laura. Not Ms. B. Not the children’s mother. My client – a loving mother of three children – had been transformed into a “respondent.”

I turned to look at Laura – she was in tears. This strong, fierce mother – who had overcome so many challenges in life to keep her children safe – had been broken by the foster care system. While the system was considering taking her children away, it had already stripped her dignity from her. She would be forever changed by how she had been treated by the court that day.

After a lengthy hearing, we won. We stopped the court from placing the children in foster care. I promised the judge that we’d get an order barring her ex-husband from being near the children. And Laura promised never to leave them alone again. Those assurances were enough to prevent a catastrophe in the family’s life.

In the coming months, Laura followed through on our promises, and the judge dismissed the case. Her children remained in her care.

But the experience profoundly changed me. It awakened me to consider how parents experience the foster care system. While I had previously attended many court proceedings representing children, I remained largely blind to how their parents experienced the process.

I didn’t really see my role – as a child advocate – to encompass supporting the parents of my clients. But my day in court with Laura complicated my perspective. I began seeing parents as sources of great strength in their children’s lives and also as victims of broader societal ills like poverty, homelessness and mental illness, that had been unaddressed by the government.

But this perspective hardly came up in my casework. What these parents needed more than anything were strong advocates to tell the untold stories in juvenile court, those involving the many strengths of the families before it. Without these stories, I realized we would continue to fail children.

This week’s New York study provides empirical evidence that equipping parents with lawyers who can tell these untold stories will help children. Now it is up to states to ensure that all parents get this type of strong parent representation. In the life of a child, unnecessarily spending four months in foster care is an eternity.

Vivek Sankaran
is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.

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