Recently I sat on a panel at a statewide conference on legal representation at which a judge made the following remark: “We need high quality parent representation in child welfare cases. What we don’t need are lawyers who act like public defenders.” Many in the audience nodded in agreement.
This wasn’t the first time I’ve heard a judge make this type of remark, and honestly, I’m a little annoyed each time I do. Some of the very best lawyers I know are public defenders, and I know that the child welfare system would be a better place for families if they practiced in it.
Think about a system in which lawyers cited laws and statutes, aggressively enforced removal standards, challenged reasonable efforts findings, and thoroughly cross-examined witnesses and introduced new evidence. Such zealous advocacy would undoubtedly improve decision-making in our system.
But perhaps buried within the judge’s remark lies an important nugget that sets family defense lawyering apart from public defense work – the need to build relationships between parents and other players in the system. Child welfare cases are inherently different than criminal cases – and most other legal disputes, for that matter. Most legal matters center on adjudicating historical fact, that is whether or not something happened in the past. Once that is settled, judges determine what sentence or fine should be imposed. Then they close the case.
In contrast, while many child welfare cases certainly involve important questions of fact about whether or not abuse or neglect occurred, it is after a finding of maltreatment is made that the real work begins. The professionals and families must partner together in attempt to heal ruptured bonds. They must figure out the strengths and challenges faced by the family, and what services might be needed to help the family move forward.
If a child is in foster care, they must determine how to keep the parents actively involved in the child’s life and must carefully make sure that their efforts (including the words they use in court) don’t undermine the goal of reunification. Ultimately, they must figure out what long-term living arrangement might be best for the child. In such a world, the bulk of the work, including the conversations that lead to important decisions and recommendations, occurs outside of court.
Because of this, good family defense work must include an additional element – the development and nurturing of relationships between the parent and other players in the system, including the agency caseworker and the children’s lawyer. While a public defender might not care about the relationship between their client and the police, a family defense attorney must care about the relationship between their client and the caseworker. She must skillfully try to get her client to work with the caseworker in a productive way, because that caseworker is the one who will make recommendations to the court about when the child can be returned home.
While the lawyer can certainly challenge the caseworker’s recommendations, the recommendation will still carry a lot of weight. And thus, the more the family defense attorney and the parent can engage with the agency, the higher likelihood of a positive outcome in the case. So lawyering that unnecessarily antagonizes adversaries, or client conversations that persuade parents to disengage with the agency, might undermine the very outcomes the client wants.
So the next time I hear a judge complain that our field doesn’t need public defenders, I’m going to reframe the comment in my head. What the child welfare system needs is zealous public defenders who rigorously enforce laws and rights, but also recognize that they can only achieve good outcomes for their clients if they prioritize building relationships between their clients and those who took their clients’ kids away.
It’s a tricky and complicated balance to navigate. This difficult balance provides yet another compelling reason why the child welfare system needs the very best of the best lawyers to enter this field.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.