In Child Welfare, Two Worlds When it Comes to Legal Representation

Vivek Sankaran: When it comes to legal representation, parents involved in the child welfare system reside in two worlds

A few weeks ago, a close friend came home from work surprised to find the business card of a Child Protective Services (“CPS”) worker wedged inside his door. No letter, or even a handwritten note, accompanied the card. Being uncertain what the card signified, he called the worker, only to learn that he was the subject of a CPS investigation.

So he did the first thing that any of us would do in this situation. He called a lawyer. He called me.

Families with resources immediately turn to lawyers in times of crisis. Lawyers can help them understand what is happening, explain options, provide information to agencies and put facts in perspective. No rational person would ever endure a CPS investigation without the assistance of a capable attorney.

Yet we live in two worlds. In one world, parents with resources immediately hire lawyers to help navigate troubled legal terrain. In the other, attorneys are viewed as luxuries, superfluous actors in a system in which the state is entrusted to protect the family’s interests.

Take, for example, a recent decision by the Mississippi Supreme Court in which the court reversed a finding of neglect against a mother. There, the trial court found the child to be neglected because the parent smoked pot, and had admitted to taking an unprescribed medication to help her sleep. After drug testing for several months, she refused to take another test. In her words, she was “tired” and “frustrated.”

But the caseworker found the home to be “fine” and there was no evidence that the child was being maltreated. In fact, the judge even described the child as “doing well under [the mother’s] care.” Despite this, the trial court still found the child to be neglected, and removed her from the home

The Mississippi Supreme Court then properly reversed the trial court’s finding.

But as I read the opinion, one glaring fact stood out – a fact never discussed by the Mississippi Supreme Court. For the first seven months that CPS was involved in the case, the mother never had a lawyer. During this time, she was forced to submit drug tests. She had to let caseworkers into her home. She went through a trial, after which the court determined that her child was neglected. And she lost her child to foster care. She watched all of this happen without the assistance of a lawyer.

Would anyone with resources have allowed the State to do this without the assistance of an attorney?

That the Mississippi Supreme Court ignored this fact highlights an important reality in the child welfare system governing the “other” world – lawyers for parents are viewed as a hindrance in the way of a system that knows what is best for children, so systems work to stymie their effectiveness. We don’t appoint them to cases in a timely manner. We don’t pay them well. We make them wait for hearings. We get frustrated when they speak too loudly.

To ensure that they don’t agitate too much, we make it hard for them to do their jobs. We often don’t give them copies of court orders, or court reports, or evaluations. Because the more information they have, the more likely it is that they will “undermine” the system’s best intentions.

Numerous studies – including this one of more than 12,000 Washington foster youth – show that the child welfare system’s refusal to ensure that every parent has a capable attorney is frustrating the system’s goals. But that’s not what this post is about. This is about fundamental fairness. This is about getting us to recognize the two systems that exist in America and the fact that none of us would ever endure the system we’ve created for those who lack resources.

How will any of this change? It will only change when those with power within the system – the federal government, child welfare agencies and courts – speak out about the unfairness that exists in child welfare and make adequate legal representation a national priority.

Small signs of progress can be seen. For example, last year, the Children’s Bureau published an information memorandum “strongly encouraging” every state to ensure that “high quality legal representation is provided to all parties in all stages of child welfare proceedings.”  But until “strong encouragement” is accompanied by an infusion of federal funds, very little will change.

Until then, we can guarantee that mothers – like the one in Mississippi – will continue to lose their children because they failed to take a drug screen. And those with resources will immediately rely on lawyers to navigate tricky situations.

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.

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