February 01, 2016

The Role of Counsel in Representing Parents

Martin Guggenheim

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The ABA recently published Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders. The book gives parent attorneys the knowledge and skills to ensure quality, consistent representation of parents in all stages of child welfare legal proceedings. The following article is an excerpt from the book. Look for more excerpts in future issues.

It is a truism that attorneys do a better job when they believe their work is worthy and they value the rights of the clients whom they represent. The excellent esprit de corps developed by the criminal defense bar has often enabled attorneys for indigent criminal defendants to achieve remarkable results for their clients against overwhelming odds and intolerable working conditions. 

Parents’ lawyers need to find colleagues and supporters for their work to avoid the danger of participating in a process that pressures a parent to accept an unwanted result because the professionals involved believe that result protects the best interests of the children.

Some parents’ lawyers may feel discomfort in advocating results desired by their clients that entail a risk of harm to the health and happiness of children. This may reflect the lawyers’ understanding that the Agency’s intentions in most cases are to serve the well-being of innocent children. These concerns are altogether natural. But that is all the more reason why defense attorneys in these cases must undertake a measure of self-examination. In a system in which the lawyer’s job includes counseling his or her client—an activity that can shade imperceptibly into a process of manipulating the client—it is far too easy for a parents’ lawyer to become enlisted in the righteous work of protecting children despite the parents’ wishes. 

Beginning with doubts about the propriety of enforcing the parents’ preferences when these may hurt a child, the lawyer is readily persuaded that the parents’ preferences are unwise, their achievement is undesirable, and it is legally infeasible. Unsurprisingly, s/he ends by counseling the parents to accept a result that contravenes the parents’ preferences even when those preferences might well have been achieved through vigorous advocacy.

Among the best protections against it is a healthy confidence in the rightness of representing indigent parents accused of inadequacy in rearing their children. Considering these points may bolster this confidence:

Parents are entitled to the same zealous representation owed to all clients accused by the state of wrongdoing. In child protection cases, the parents face a loss that to many is more severe than loss of physical liberty: the loss of the care, custody, and companionship of their children.

Many parents accused of inadequacy in the United States face the loss of one of the few precious things in their lives. The overwhelming majority of parents charged with neglecting their children live in poverty and are disproportionately members of minority groups.1  

Poverty is the leading reason children end up in foster care. Studies show that families earning incomes below the poverty line are 22 times more likely to be involved in the child protective system than families with incomes slightly above it.2

Studies have consistently found the majority of children in foster care could remain safely at home. Experts estimate that 40 to 70 percent of children currently in foster care have not been abused and need not be separated from their families if society sufficiently assisted poor families in raising their children at home.3

When children are placed in foster care, children and parents face a very high risk of having their relationship permanently severed. Once children are removed from the custody of their parents, the functional—if not legal—burden of proof often shifts to the parents to show that the return of the children to their custody is both appropriate and consistent with the best interests of the children. When parents do not have custody of their children, it is difficult to show that under the current conditions in the home the parents can care adequately for them.

Even when parents have made some serious mistakes in the raising of their children, foster care placement frequently does more harm than good. “Those placed in foster care are far more likely than other children to commit crimes, drop out of school, join welfare, experience substance abuse problems, or enter the homeless population.”4

Taken from their parents’ home, children can languish for years in state-supported foster care arrangements of marginal quality at best, feeling deserted, unloved, and alone. To justify this outcome should require an extremely solid prediction that, if left in the parents’ care, the child will suffer serious damage. But accurate predictions of the future behavior of people in a family unit are difficult to make, and accurate predictions of the long-range consequences of that behavior for a child’s development are still more difficult. Neither the child protection authorities who believe that the separation of a child from his or her parents is the wiser course nor the lawyer who fears that the child will be endangered if that course is opposed at the parents’ behest has a crystal ball.

Good intentions on the part of the state authorities and agencies involved in child protection proceedings are no guarantee that they will have prophetic powers or even good judgment. Even the highly touted “permanence” that children in foster care purportedly receive after their parents’ rights are terminated is greatly exaggerated. Over the past decade, more than a 100,000 children who lost all legal connection to their families never benefited by being adopted.5 They simply “aged out” of the foster care system, the metaphorical equivalent of stateless persons. Nor does adoption assure any kind of permanency. Each year thousands of children who were adopted by foster parents end up without their adoptive families and, more than occasionally, back with their families of origin—only now, legally unrelated to them.6  

Parents are more likely to take advice from an advocate who is vigorously fighting for their rights to make their own decisions for their families and are more likely to endure the process when they feel they have had a strong defense and a caring professional who listens to and respects them. 

One final consideration: Poor families exposed to judicial and agency scrutiny in the child welfare system are reviewed through a lens that looks at the worst thing that has happened. In families of privilege, where unfortunate events are expectable, the bad things are invariably framed against the wonderful things that happen in families every day. The hugs, emotional support, and love that take place within families are always in the back of one’s mind even when bad things happen to children. 

Families that do not end up in the child welfare system are judged as part of a moving picture of their families, even when children break bones or their parents use drugs or drink alcohol to an excess. The families that enter the child welfare system—parents and children included—deserve the right to be treated no differently from the way families living in wealthier parts of town are treated. The role of a parent’s lawyer is to fight for this fundamental human right: to be treated the same way the most important members of the community are treated.


1. See Roberts, Dorothy. Shattered Bonds: The Color of Child Welfare, 2002.

2. See Courtney, Mark E. “The Costs of Child Protection in the Context of Welfare Reform.” The Future of Children 8, 1998, 88, 95.

3. See Duncan Lindsey. The Welfare of Children, 1994, 141, 155 (finding 46 percent of the foster children did not need to be in foster care).

4. See Doyle, Jr., Joseph J. “Child Protection and Child Outcomes: Measuring the Effects of Foster Care.” American Economic Review 97, 2007, 1583, 1583–84, 1607 (2007).

5. See Godsoe, Cynthia. “Parsing Childhood.” Lewis & Clark Law Review 17, 2013, 113, 115 & n.9 (2013); Gupta-Kagan, Josh. “Filling the Due Process Don’t Hole: Abuse and Neglect Cases between Disposition and Permanency.” Connecticut Public Interest Law Journal 10, 2010, 13, 57.

6. See Post, Dawn J. and Brian Zimmerman. “The Revolving Doors of Family Court: Confronting Broken Adoptions.” Capital University Law Review 40, 2012, 437.

Martin Guggenheim is a law professor at the New York University School of Law, where he now co-directs the Family Defense Clinic.


Adapted from Guggenheim, Martin. “Chapter One: General Overview of Child Protection Laws in the United States.” In Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders, 2015. © Copyright 2015, American Bar Association. Copies of the book are available from the ABA Store, www.shop.americanbar.org