For the past few weeks, I’ve been reading transcripts from child protective hearings. Hundreds of pages of transcripts. I’ve seen examples of clear legal errors. I’ve read many lines of parents’ lawyers grumbling and complaining. I’ve read even more of those lawyers simply agreeing to whatever the agency is proposing.
I’m still waiting, though, to see one key phrase in the transcripts. I’m waiting for one lawyer to say it …
In fact, in the six years I’ve co-directed the Child Welfare Appellate Clinic at the University of Michigan Law School, I’ve rarely seen that phrase in a transcript. I’ve rarely seen motions filed by parents’ lawyers, even when confronted with obvious mistakes. I’ve rarely seen a hint of outrage about the process.
Instead, I usually see very little advocacy. I’m typically struck by the acquiescence of the lawyers in the courtroom.
This week, I experienced this feeling of acquiescence when I conducted a training for parents’ lawyers on litigating termination of parental rights cases. Throughout the presentation, I heard complaints about how poorly systems treated families. Courts only affording parents an hour a month to see their kids. Agencies forcing families to pay for their own services. Systems refusing to transcribe court hearings, thereby rendering it impossible for an appellate court to adequately review the case. As the presentation went on, the list of grievances grew.
Yet, while attorneys were quite comfortable sharing their grievances, they also openly shared feelings of helplessness. One attorney remarked, “What can I do if the court only lets my client see their child every other week?”
Another stated, “The agency just won’t work with my client who is incarcerated, and simply wants to terminate parental rights.”
A third observed, “In my county, the judge won’t follow the law, and simply accedes to what the agency requests.”
When I challenged the attorneys to tell us what they do to respond to these situations, there was silence in the room. The same silence I saw in my transcripts. They respond by doing nothing.
In thinking about this silence, I’m reminded of a powerful speech I heard by a parent’s attorney a decade ago. He described Martin Seligman’s powerful experiment on learned helplessness. When a group of dogs in Seligman’s study believed they were being randomly shocked, and thus couldn’t control the situation, they simply laid down in the middle of the room, gently whined and absorbed the shocks. They no longer did anything to avoid the shocks.
The parent’s attorney analogized his work defending families to the dogs in the study. That for years, he’d file motions and aggressively litigate cases, only to get push back from judges and others on the case. He was told that he wasn’t a team player. He was yelled at for slowing down the process. He was told that he wasn’t prioritizing the interests of children.
So after losing case after case, he simply gave up. Like the dogs in the study, he had learned there was little he could do to change the outcome of the case. So why bother fighting?
But he ended his speech with a simple call to action to his fellow lawyers. Just show your outrage. Get in the way. Speak out when families are being hurt.
Because, as Dr. Martin Luther King observed, “the arc of moral universe is long but it bends toward justice.” We’ve seen this in child welfare over the past decade. After losing for years, parent’s lawyers are winning key child welfare cases at state supreme courts. For the first time, the Children’s Bureau has made federal funding available to pay for family defense. Congress now understands that children are best served by supporting their families and is allowing funds to support prevention work. Signs of progress abound.
But the arc only bends toward justice if lawyers speak out. When they express outrage. When they refuse to be silenced.
In other words, systems don’t automatically bend toward justice. They only do so when lawyers say the magic phrase: “I object.”
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.