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.
Building a Relationship with the Client
The challenges of representing parents in child welfare matters start right away. Because most parents in the child welfare system have little income, most clients will not be privately retained, but instead will be assigned by court appointment. As a result, it is likely counsel’s first contact with a parent client will take place with a court hearing already scheduled and imminent. The client’s child might have been removed from her care with little or no warning. The child may have been placed in foster care, with caretakers unknown to the client and at a location unfamiliar to the child and kept secret from the client.
This may be the most stressful and difficult time in the client’s life. She may feel frightened about the whereabouts and condition of her child. She may be disoriented by the abrupt and punitive-seeming disruption to her family’s life. She may feel deeply humiliated at the harsh judgment of her parenting inherent in the state’s actions of initiating a dependency case or taking the child from her care. The emotional circumstances of this time, along with the likely time pressures of a looming court hearing, can largely define the beginning of the lawyer-client relationship, and will impact initial efforts by counsel on the client’s behalf. Sensitivity to the client’s experience and diligence in the early stages of representation can forge strong bonds with the client and set the stage for a constructive working relationship throughout the case.
The most important quality counsel can bring to the first meeting with the client who has experienced these events is empathy. What the client needs most at this moment in her life is a respectful professional who avoids prejudgment and shows respect by listening carefully to what she has to say and committing to work on her behalf going forward.
Gathering Information about the Case and Client
When a child has been removed from a parent’s care, or the agency seeks court approval to remove a child, courts typically must hold a “removal hearing” within 24 to 72 hours. Although statutory language varies from state to state, courts ordinarily must allow a child to remain in, or return to, his parent’s custody unless the agency proves the child is in “imminent” or “immediate danger,” or the equivalent. In many cases, counsel will be appointed to represent a client on the day the removal hearing is scheduled. This places counsel and the client in an extremely challenging situation. The results obtained in the initial “removal hearing” may establish the long-term course of the case itself. In many states, the longer children are in foster care, the less likely they will be returned home. This means counsel needs to work extremely hard on the case immediately.
Uncovering accurate information/expanding the focus
The agency’s knowledge of the family is almost always limited to a discreet event—a snapshot of a family’s (and child’s life). The more one looks only at the state’s depiction of the child’s experience, the stronger the claims for the state will seem. Because the state has initiated a dependency case, we can be certain the state has drawn negative inferences from an event or series of events in the child’s life. The state’s investigation may have generated inaccurate facts, however, causing the conclusions— for example, that a child is in danger—to be wholly mistaken. The state’s inferences also may be rooted in misinterpretation of facts, or facts taken out of context. Counsel’s job is to uncover accurate information and expand the focus beyond the incident or condition on which the state may be focused with a broader perspective that places the situation in a more complete context. Counsel needs to get to know the circumstances of the family well beyond what the agency knows.
Securing petition and documents
As soon as the appointment is made, counsel should secure the petition and supporting papers. Counsel should request all documents be provided to the court. Counsel should also ask the agency for all records it possesses about the client, such as services provided to satisfy the state’s “reasonable efforts” requirement, see 42 U.S.C. § 672 (2014), and any school, medical, or other records collected by the agency investigating the parent and her family.
In addition, counsel should seek any available information that will help her learn more about the client and the overall situation. Substantial information may be available in the courthouse. For example, counsel should search for files of cases involving the client in such matters as landlord-tenant proceedings, divorce and child custody, domestic violence, criminal, and prior dependency proceedings. Counsel should also search for cases involving other individuals who may be included in the case, including the other parent, a caretaker, relative, or friend.
When counsel obtains these files, she should review them and photocopy whatever seems relevant. They may contain information that will support the client’s case. For example, in a case alleging “failure to protect,” domestic violence case files may contain evidence of past efforts the client made to keep a batterer at bay. Counsel may also uncover harmful information, such as a parent’s past criminal activity. Counsel must know this history to avoid being blindsided later in the case when the agency reveals it for the first time.
Obtaining information about child’s removal
If the child was removed, counsel should find out where the child has been placed, how to contact the child’s caregiver, and any other information about the child’s current condition. Although the caseworker may be reluctant to share such information, jurisdictions vary on the amount of information a parent has a right to know about these matters. This information is often of great interest to the parent who is worried about her child’s well-being.
Meeting potential caregivers
Among the earliest tasks counsel should perform almost immediately after a child has been removed is to meet with the client and all potential substitute caregivers the client suggests. With their permission, counsel should consider visiting their home and taking photographs and video footage to be used as persuasive evidence that the child can be safely placed there. In some jurisdictions, courts have the power to direct the particular placement resource for the child; in others, this is the agency’s responsibility. In either case, counsel will usually want to seek the agency’s agreement first, seeking court intervention only if necessary.
When the agency has a policy to defer such placements until certain background checks are completed, counsel should take all steps necessary to accelerate the process, including securing the forms and helping fill them out with the parent or proposed caregiver. Treat the matter as the emergency it is; every day a child is separated from a parent matters.
Securing placement with a recommended placement resource
When the court or agency is reluctant to place the child with a recommended resource, counsel should take steps to persuade them. This requires some investigation and trial prep-like steps. Get the names of people—including doctors, teachers, and day care providers—who can attest to the proposed resource’s strengths and capability to take good care of children, speak with them, and share the information with the agency or court. Arrange a prompt meeting with the resource or bring her to court to testify.
The Client Interview
The First Meeting
As soon as counsel has the client’s telephone number or other contact information, arrange a meeting. To the extent possible in light of time constraints, counsel should meet with the client in a quiet and private location. In many instances, counsel may have no choice but to meet in the courthouse’s hallway, and may have as little as a few moments to talk before the initial hearing.
When this is the case, counsel should consider whether to seek to delay the hearing until counsel has had adequate time to meet with and assist the client to participate meaningfully in the court appearance. Depending on the allegations and counsel’s sense of the need for preparation, the costs of putting the hearing off for a day or more may be outweighed by the benefits. Counsel’s role is to help the client assess the pros and cons of a decision to proceed immediately or to seek a delay. Some parents will be willing to wait until their odds are strongest. Others will regard any delay as too costly. This decision may have significant short- and long-term consequences for the client, and should be made by the client after the lawyer has provided information and assisted with the client’s decision-making process.
Starting on the right foot
The quieter the setting for a first meeting with a client, the better. This is an important meeting for the client. It is not easy to build rapport and trust in a rushed meeting, but counsel must try. Counsel should consider the likely stress the client is experiencing and ask in what ways counsel can help by meeting with the client. What is the client most likely feeling? What are her immediate needs? One can never know without meeting her. But counsel can anticipate that the client may be scared, feeling alone, full of questions, as starters.
Use this meeting as an opportunity to address the client’s immediate needs, postponing other components of the meeting for a few minutes. Ask how the client is holding up. Explain what is going on in the case and what lies immediately ahead. Clarify your role and aspirations for the case. You will need to elicit facts from the client, but that does not require starting with them.
Acknowledging client experiences with legal system
Clients may be suspicions of the justice system and of lawyers, perhaps having had negative past experiences. Clients may know that lawyers commonly are appointed by the judge before whom the lawyer and client will appear, and are paid by the court for which the judge works. They may be wary that a lawyer’s own interest in procuring future case appointments will restrain the lawyer’s advocacy. And clients may quickly learn counsel has preexisting relationships with other child welfare system professionals, such as the state’s attorney, caseworker, judge, and court staff.
Establishing client loyalty
Accordingly, it is important for counsel to assure the client that it is to her that counsel is solely responsible, and that counsel’s loyalty to the client is unequivocal. State this directly. Build a strong relationship with the client by listening to her actively and nonjudgmentally. One easy way to distinguish oneself from the many others who may have interviewed the client in connection with the case is to make statements and ask questions reflecting favorable assumptions about the client’s parenting and her contributions to the community.
Explaining the Initial Hearing
Be sure to explain the decisions the court will make at the preliminary hearing. Depending on the jurisdiction, it may decide whether to authorize the petition, a finding there is probable cause to believe there are grounds for the petition. Second, if the court authorizes the petition, the court will then decide where the child will live while the case proceeds.
Eliciting Information about the Case
Explaining the decisions to be made at the initial hearing will provide a useful frame for the lawyer’s efforts to gather factual information about the case. Counsel should acquire basic factual information about the case and advise the client on the decisions the client must make immediately. Counsel will want to know how to contact the client between court appearances.
Gathering essential facts
Some information about the case can be postponed to a second meeting with the client. Depending on the allegations in the petition, counsel may want to know immediately how the family became involved with Children’s Protective Services, any previous family involvement with the courts or the agency, whether the family currently receives services, and whether the child has special needs. Other times, some of these inquiries can be postponed, with the predominant focus placed on avoiding the child’s placement in a nonrelative foster home.
Gathering information based on the allegations
In preparing for the aspect of the hearing relating to the sufficiency of the petition, the contours of the interview will be determined largely by the allegations. Carefully review the charging document and other paperwork setting forth the agency’s concerns. There may be no grounds on which to challenge the petition on its face, in which event a detailed “retrospective” inquiry into the merits of the petition should ordinarily be postponed, especially when there is limited time for the interview.
In that circumstance, the main focus of the interview will be on the “prospective” issue of the child’s safety going forward. If the agency is seeking the child’s removal or continued placement, it must prove the child cannot be maintained safely in the parent’s home. Counsel should interview the parent about information supporting the claim the child can be safely kept at home.
Exploring parental placement conditions
Assuming the parent wants the child home, counsel should explore whether the parent will accept conditions for the placement, such as random drug testing or in-home reunification assistance. If the parent is not alleged to be the active wrongdoer, will she help enforce a court order requiring the other parent to leave the home? Is the parent willing to take the children to services such as counseling and medical appointments? Counsel should explain that the court may be more willing to return the child with such conditions in place and that accepting them does not require admitting to any wrongdoing. The question of whether the petition can be sustained is saved for later.
Exploring placement alternatives
Counsel should also discuss the parent’s options if the court does not immediately return the child to the parent’s custody, especially other placement possibilities that the parent considers more acceptable than foster care. There is a federal mandate to place children in the “least restrictive (most family-like) and most appropriate setting available and in close proximity to the parents’ home. . . .” 42 U.S.C. § 675 (2014). Placing children with an adult caregiver suggested by the parent falls solidly within this mandate, the purpose of which is to impose a placement least likely to disrupt the child’s life. In light of this federal mandate, and likely counterparts in counsel’s state statute, regulations, and case law, counsel should prepare to argue that the burden lies heavily on the party opposing the parent’s recommended resource to show why the placement is too dangerous to allow.
Giving priority to relative/kin placements
There is also a federal mandate to prefer placing children with relatives over others when children enter foster care. See 42 U.S.C. § 671(a)(19) (2014). Identify relatives, friends, and others who could care for the child temporarily. When considering them, counsel should tell the parent that the court will want to know such things as the proposed caregiver’s prior criminal or child protective history, the family’s resources, and the proposed caregiver’s previous involvement in this child’s life.
Addressing parenting time
Counsel should also address parenting time with the client. What type of parenting time would the client like? Where should the visits take place? How frequently should they occur? If parenting time must be supervised, does the client know someone willing to supervise the visits and can pass the agency’s background checks? When evaluating all these things, counsel should help the client develop creative solutions and assess the pros and cons of the available options.
Advising Parent Who is Not the Subject of a Court Proceeding
Counsel may be contacted by a parent who is under investigation by the local child welfare agency, but who is not the subject of a court proceeding. The parent may seek to retain counsel for help navigating the investigation process hoping to avoid the child’s removal and the filing of a court case. This section discusses factors to address when helping the client decide how to respond to the investigation.
Typical issues parents face in these circumstances include a request by the investigating agency to:
- inspect the home,
- interview the parent or a child or the child’s siblings,
- authorize the release to the agency of confidential educational or medical records,
- agree to a “safety plan,” and
- grant a relative or friend temporary custody of the child.
Although the parent cannot be compelled to do any of these things without a court order, the parent may believe she has no choice but to comply.
The lawyer’s role at this stage is to counsel the client about whether and to what extent to cooperate with the agency’s investigation. Because child services agencies typically have unchecked power to remove a child in emergency circumstances, without judicial review for 24 hours or more, a lawyer counseling a parent considering the most effective response to a child welfare investigation must help the client navigate a hazardous passage.
On one hand, a parent who provides information to the state inadvertently may provide sufficient grounds for concern about the child that causes the removal. On the other hand, the agency may believe a parent who refuses to participate in the investigation, or who limits her participation, may be hiding evidence of maltreatment and demonstrating a consciousness of guilt; in response, the agency may remove the child. Just as the parent must avoid providing the state evidence that gives cause for the child’s removal, the parent needs to know the agency may remove a child because the parent refuses to provide information. In either event, the first opportunity to persuade a court to order the child’s return home may not occur until the “removal hearing” several days later. In the interim, the parent and child may experience fear, disorientation, shame, and trauma. Moreover, when judicial review does take place, the parent’s likelihood of success is unpredictable and may be poor in jurisdictions in which judges are known to “rubber-stamp” removals.
Considering agency’s knowledge of abuse
The client’s decision about how much to cooperate should take into account what the agency already knows or likely knows. Often, the agency has little evidence of abuse or neglect. When that is the case, it may be wisest for the client to remain relatively unforthcoming, to avoid assisting the state in building the case against her. For example, many investigations are undertaken in response to a report conveying an anonymous source’s concern or suspicion about the parent’s treatment of her child.
The agency’s contact with the parent may well be the first step in the agency’s investigation. Under these circumstances, the agency has little evidence that the parent maltreated her child or that the child is at risk of maltreatment. A parent who cooperates unreservedly with the investigation may provide the agency with information that it otherwise would not have acquired but may be construed in a worse light than the parent anticipated. Many practitioners report that facts alleged in petitions commonly were obtained through statements made by parents during the early investigation—without which there would have been no basis to file a petition.
Nature of allegations
The client’s decision may be influenced by the gravity of the agency’s concern. When parents do not know why they are being investigated, it may be appropriate for the parent to cooperate, at least enough to learn the nature of the allegations. Counsel may then advise whether the client should cooperate further, weighing the inconvenience and indignity of compliance against the risk that the agency worker will file a petition.
When the allegations against the client are very serious, or supported by substantial evidence already possessed by the agency, it may be damaging for the parent to provide additional information and support for its concerns, such as by admitting to actions or omissions alleged by the agency. When grave or inflammatory allegations have been made, such as sexual abuse, a client’s admission to involvement or culpability may limit her ability to have the child returned home, to have visits during placement, or to defeat the charges at trial. The agency is likely to ignore or find unpersuasive explanations of her conduct, even when bolstered by mitigating or contextualizing information. When the agency seems likely to remove a child and the chances of defeating that effort seem poor, counsel should shift the focus to finding a trusted relative or friend to take temporary custody of the child. This may assure the agency of the child’s safety and encourage it not to file a petition in court.
Advising Parent Whether to Exercise Privilege against Self-Incrimination
The Fifth Amendment to the Constitution protects against self-incrimination. See U.S. Const. amend. V. (“No person . . . shall be compelled in any criminal case to be a witness against himself.”). A witness in any case, including a civil child protection case, may decline to testify to avoid providing information that might incriminate him- or herself. The court can make an adverse inference against a parent who declines to testify, even when the reason for declining to testify is to avoid self-incrimination. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
Risks/rewards of testimony
In counseling a client about whether to testify in a child welfare proceeding, a lawyer must help the client balance the potential risks and rewards associated with the options available to the client. On one hand, the client may testify to important factual information about the child welfare case that could exonerate her, or explain or provide context for her actions. In addition, she may feel unjustly maligned by the child welfare proceeding and want an opportunity to tell her side of the story.
Testifying may provide the client with a sense of control or influence over the proceedings. However, the lawyer must inform a client that self-incriminating testimony can harm not only the client’s interests in the immediate proceedings but can also expose her to collateral criminal charges where abuse or neglect has been alleged. In helping the client balance all of these important concerns, the lawyer should seek to understand the client’s motivations, one or more of which may be in tension with others.
Court’s perception of truth
Finally, it is counsel’s duty to help a client understand that a judge may not believe the client (no matter how truthful her testimony may be) even where other considerations mitigate in favor of the client giving testimony. Where necessary, the lawyer should explain to the client that this is so regardless of the merits of the choices she has made as a parent, and that a fact-finder’s perception of the truthfulness of the witness may be informed by personal or subjective biases, even where the testimony is true. There may be other ways—apart and aside from adducing the client’s in-court testimony—for counsel to empower the involuntary party to child welfare litigation.
Matthew Fraidin is a Professor of Law at the University of the District of Columbia David A. Clarke School of Law.
Adapted and reprinted from Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders, edited by Martin Guggenheim & Vivek Sankaran, 2015. © Copyright 2015, American Bar Association.