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.
In terms of land area, America is mostly rural. In terms where people live, America is mostly urban. Rural counties make up 72 percent of U.S. land area yet only 15 percent of the population lives in one of those rural counties.1 Given this demographic reality, it is not surprising that the experiences of rural parent attorneys are often overlooked in practice discussions.
However, thinking of rural communities as “fly-over country” overlooks the experiences of 46.2 million people who live, work, and sometimes struggle to keep their families together in these small and often isolated communities.2 In addition, this rural population includes many Indian children as defined by the Indian Child Welfare Act (ICWA),3 and an ever-growing population of immigrant families whose needs and challenges must be addressed by rural practitioners in child welfare proceedings.4 Rural practitioners often must communicate across distance and cultures as rural America’s African American, Hispanic, and Native American populations are large and growing.5
The availability of well-trained, effective family court judges and attorneys for parents, children, and child welfare agencies in rural communities impacts large, diverse, and often underserved populations. This article provides a parent attorney’s perspective about best practices and practical solutions for the rural practitioner.
Universal Best Practices—Avoiding a Two-Tiered Child Welfare System
Parent attorneys practicing in isolated areas may find that courts and government agencies respond to the difficulty of providing services in remote locations by lowering expectations. This takes the form of decreased visitation, phone-only court appearances, greatly expanded timelines for removal and adjudication findings, significantly limited discovery, denial of expert requests, lowering the bar for reasonable and/or active efforts, increased pro se representation, and so on.
Parent attorneys can address this danger by insisting minimum standards and best practices are universal. The ideal standards of practice apply from a remote Alaskan village all the way to the heart of the Bronx.6 The ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases (ABA Standards) are an excellent starting point, and serve as the guide for this article.7
Rural practitioners must push back against the notion that judges and agencies can address the difficulties posed by distance and isolation in rural areas by permitting lowered expectations. This article invites rural practitioners to establish a standard of practice that pushes back against this kind of “solution” and provides parents strategically minded advocacy focused on the best outcome at every stage of litigation, negotiations, and case planning.
Wide Open Spaces and the Time It Takes to Cross Them
Spread out and sparsely populated regions have less roads, less airports, less mass transit, and a lot more traveling and waiting. This is a reality for parent attorneys in rural locations. From communicating a court date to forming an attorney-client relationship, every aspect of practice is affected by time, distance, and limited resources.8 Even so, best-practices remain a guidepost.
Meet Your Client Face-to-Face
The ABA Standards require effective client communication and unwavering respect for the client’s goals.9 Unless impossible, this relationship requires at least some early face-to-face communication. Clients who meet their lawyers in person are more likely to develop a personal connection and trust that is not possible through other forms of communication.10 Moreover, in-person communication at the start of a case reduces miscommunication and ensures both lawyer and client understand each other’s objectives.11
Honest, open communication with a parent facing the shame and embarrassment of a child welfare case is always difficult, but it can be dramatically improved by simple nonverbal gestures: shaking hands, eye contact, a hand on the shoulder, a respectful demeanor, a nod of the head. While in some instances it can be extremely difficult to arrange in-person meetings (as in taking a small plane into the arctic wilderness), it is rarely impossible. The payoff is real and immediate, while a failure of effective communication will negatively impact every stage of litigation. For that reason, parent attorneys should:
- Request travel funds for client visitation (including as part of contract negotiations).
- Combine investigation with client visitation.
- Set a regular schedule for travel to visit clients.
- Educate relentlessly about the importance of in-person legal advice.
- Hold regular office and phone hours.
Parents Should Be Present in Court for Substantive Hearings Whenever Possible
Judges and witnesses in child welfare proceedings should face a living, breathing human in the courtroom if possible. Judges often stress the importance of parental participation, a position that dovetails nicely with an attorney’s request to make accommodations to ensure a parent client’s presence. As always, the decision to insist on in-person court attendance should be strategically weighed, but the standard should remain. Parent attorneys should:
- Ask the court to travel to the client when permitted in the jurisdiction.12 Even if the court denies the request, it highlights the difficulty the client faces participating in court.
- Request that travel be provided by the child welfare agency or the court.
- Combine court hearings with case-related travel, visitation, or other scheduled travel.
- Ensure hearings are scheduled at appropriate times for travelling clients.
- Request that the reasons a client cannot attend court be put on record.
- Constantly educate the court about the client’s situation: planes, buses, boats, trains, cars, cabs, working hours, etc.
When in-person court participation is not possible, the advocate should push for video participation. A televised version of your client is not ideal, but it is better than a few seconds of a distant voice. If possible, the lawyer should travel to the client and assist with video technology. Judges will often be unfamiliar with options for video participation and may not realize that a laptop or cellphone may be all that is necessary.
Skype and Facetime are available as apps on most phones and as programs for computers. Many courts will have monitors and/or projectors to allow everyone in court to view a screen or projection. In addition, many laptops and phones have built-in cameras. Some courts, like those in Alaska, have video technology built into the courtroom to facilitate video appearance. Often these options remain unexplored because nobody in the courtroom understands how to use them or courts are wary of the time and effort it might take to implement unfamiliar technology. Often, such solutions require nothing more than a $10 cable, the advice of a teen, and a willing judge. This is especially true as Internet and wireless technology become more common even in rural areas. The court should be under pressure all the time to provide the maximum possible meaningful court participation.
Beware the Pitfalls of Technology
Technology can be wonderful to cut across distances and permit communication. Phones, fax machines, computers, video equipment, social media, and ever-improving Internet access can help. However, the increasing use of technology also has the potential to create psychological distance for judges and a sense of disconnection for clients.
It is important for parent attorneys in rural areas to have a working knowledge of available technology and how to use it to their clients’ advantage. It may be easier for clients to communicate by text if their job or location limits phone access. It may facilitate valuable client testimony if the client has access to video or telephonic technology. Telephone translation services may be more convenient for non-English speakers in rural areas and are often offered through state court systems or private providers.13 In many jurisdictions depositions can be conducted by phone, a common practice in some rural locations. In Alaska, the witness can even be sworn in telephonically, though many jurisdictions will require that a court reporter or notary be present with the witness to swear them in.14
The point is not to avoid technology per se, but to ensure decisions about whether and how to use that technology align with best practices. Such decisions should be driven by the “theory and strategy”15 of the case and by the “duty of loyalty owed the client”16 rather than mere convenience or cost savings for courts, agencies, and lawyers.
Demand Reasonable/Active Efforts and Access to Services—A Knowledge Based Approach
Federal law demands state agencies provide “reasonable efforts”17 to prevent the breakup of families. In the case of “Indian” children, state agencies must provide “active efforts”18 to keep families together and reunify them when they have been separated. In simple terms, caseworkers and administrators must put time and resources towards keeping children with their families. In many child welfare systems, reasonable or active efforts become cookie cutter case plans with the same referrals for the same “services” provided to every parent regardless of circumstances or geographic location. For example, every parent is required to take parenting classes, substance abuse treatment, anger management, and participate in supervised visitation.
Most parent attorneys know that participating in “services” is meaningless without a plan to support access. People in rural or isolated places require different kinds of help accessing services. These needs may range from bus passes, rides with friends, housing assistance, help with job applications, connections to regional services, and basic encouragement to leave one’s small community to attend treatment or counseling in a distant city. True effort by any child-welfare agency operating in a rural location requires resources and creative thinking to get parents to treatment programs, visitation, and other agencies that provide resources.
Government agencies may not always step up to provide required efforts without prodding from an advocate. The ABA Standards call on lawyers representing parents to “engage in case planning and advocate for appropriate social services.”19 Parent attorneys can meet this standard by asking agencies to provide resources as part of the legal duty to provide reasonable and/or active efforts. An effective parent lawyer constantly identifies tangible needs and frames those needs as an opportunity to make reasonable efforts. Because attorneys practicing in small communities often know what services are available in the community, they can be specific about available resources, and resist a one-size-fits-all approach.
This knowledge-based approach, in which a parent attorney relies on her knowledge of the community, translates into every stage of representation. For instance, one benefit of rural practice is that lawyers are on a first-name basis with social workers, clinicians, probation officers, special education teachers, benefits workers, guardians ad litem, treatment providers, and foster caregivers.
Lawyers can put their relationships to work for clients by providing specific recommendations during case planning and early negotiations. A specific recommendation made to a familiar group by an advocate known to be persistent and knowledgeable almost always has an impact. That same lawyer becomes a strong litigator when she confronts an agency about specific services that were suggested but not provided. It boosts credibility when the parent attorney is the most knowledgeable person in the courtroom about local services and the people who provide them.
Visitation, More Visitation, and Better Visitation
Visitation is the single most important factor in family reunification.20 It motivates the client to work towards reunification and gives the judge and child welfare agency concrete evidence of the parent’s engagement and progress. Yet in rural places, it is common for children to be placed far from their parents and for visitation to be limited as a result. Effective lawyers must “aggressively advocate for regular visitation in a family-friendly setting”21 from the start of an out-of-home case. This means child welfare agencies must devote resources in rural and isolated areas to provide meaningful visitation. Lawyers in these locations must dedicate efforts, both informal and on-record, ensuring adequate and frequent visitation.
This is one area where lawyers should be especially concerned about improper use of technology. Visitation by phone or video may supplement in-person visitation, but it cannot substitute for time spent together in the same physical space. The temptation by overworked social workers and staff in geographically spread out regions is to permit unsupervised “distance visitation” rather than provide supervised in-person visitation. Steps parent attorneys can take include:
- Request in-person visitation at every hearing and meeting.
- Focus case planning towards visitation.
- Develop and use relationships with local resources for visitation:
- foster families
- Insist on less restrictive and more homelike visitation at every opportunity.
- Use discovery and investigation to document successful visitation.
- Litigate failure to provide visitation as quickly as possible.
- Combine travel for treatment and case planning with visitation.
- When possible, recruit guardians ad litem, tribes, and other parties to push for visitation.
- Remind the client at every opportunity that visitation is all-important.
The goal is always to achieve more and less-restrictive visitation. It is also important to ensure that failure to provide visitation is well-documented and inexcusable. Again, the effective advocate in court will have the credibility and knowledge to “present and cross-examine witnesses” and “prepare and present exhibits” as part of an overall strategy to put the client in the best possible position.22 Over time, the court and other parties will expect that not providing regular visitation will be met with effective litigation.
Litigation, Discovery and Investigation
Lawyers in rural locations often practice in less formal environments and appear before the same few judges surrounded by the same few lawyers and professionals. This can be a benefit in negotiations and allows for informal resolution of matters that might otherwise require significant litigation. The danger is that the pressure to keep the peace and settle cases will result in less strenuous advocacy. Put simply, the need to “cooperate and communicate with other profesionals in the case”23 can overshadow the requirement to “act in accordance with the duty of loyalty owed to the client”24 as long-standing relationships and practices become the norm.
For example, it may be rare in a jurisdiction to challenge probable cause at the beginning of a dependency case. As a result agency lawyers are taken aback by any such challenge, viewing it as aggressive or hostile. Inevitably parent lawyers will see some cases where agency overreach or inexperience leads to petitions where parents are simply poor or the facts are too weak to support a petition. In this situation, a parent attorney may feel pressure to avoid angering long-time colleagues or judges. This tension is resolved by the essential nature of lawyering, which requires a “case theory and strategy”25 advanced by an unequivocal advocate during negotiations and all stages of proceedings. The most effective strategy in a case may require conflict with respected colleagues or breaking from long-held traditions. Any effective strategy on behalf of a client will naturally leverage well-maintained professional relationships while allowing strenuous advocacy.
Discovery with a Purpose
The tendency in places where all players know one another is to rely heavily on informal discovery and conduct limited investigation. In rural locations, where supervisors can be far away and documents held in distant locations, formal discovery can be even more vital. The same is true of investigation, where witnesses and events are often far from the courthouse. Without formal discovery and investigation, the natural tendency of child welfare agencies is to provide only information that supports the agency’s position. It is the responsibility of the parent’s attorney to “conduct a thorough and independent investigation”26 and to “use formal discovery”27 when the informal approach is not sufficient. A rural parent’s attorney should be prepared to use:
- Informal discovery:
- Careful note-taking and questioning at all agency meetings.
- Questioning and note-taking at all case-planning meetings.
- Requesting documents and records from opposing counsel.
- Acquiring releases from a client to obtain records.
- Focusing on admissible discovery (documents, recorded statements, etc.).
- Formal discovery:
- Enforcement of initial and ongoing disclosure requirements
- Requests for production
- Requests for admission
- Personal depositions – especially of experts and agency staff
- Records depositions
- Written depositions
- Institutional depositions (e.g., Fed. C.R. 30(b)(6))
- Subpoenas duces tecum
Using these tools need not be extensive to be effective. A short deposition may uncover information to settle an issue before a hearing. A few interrogatories might put an allegation to rest. For the rural practitioner, the opportunity to gather information that sets the record straight or advances the litigation process can be invaluable.
Investigating with a Focus on Accuracy and Fairness
Relationships in rural communities are often marked by rumor and speculation as well as long-standing tensions between individuals and families. When everybody knows everybody and families have been in the same place for generations, it is common for people to hold strong opinions about their neighbors and to repeat rumor and speculation as fact. This information often makes it into agency petitions in the form of “concerns” and sometimes even as falsely observed facts provided to child welfare agency investigators from outside the community. At minimum, parent attorneys in rural locations should engage in the following investigation:
- Thorough initial interviews with clients
- Interviews with all initial fact witnesses
- Interviews with witnesses about past positive parenting by client
- Interviews with adverse witnesses
- Collection of police reports, incident reports, medical records, prior reports of harm, educational records, psychological records, etc.
- Timely service of subpoenas for contested hearings and depositions to ensure availability
While not all cases require the same approach to discovery and investigation, remember that even a short deposition or a key document can dispel exaggeration and misinformation. A corrected and supplemented record may forestall removal, expedite reunification, spur the court to action on visitation and reasonable/active efforts, and occasionally result in the dismissal of a petition for failure of proof. Simply put, lawyers defending the rights of parents should be every bit as prepared to litigate and advocate on all fronts as any other lawyer in any other area of law. This is no small order, but the best first step is to be familiar with the methods and means of discovery and investigation available.
Parent attorneys in every corner of America are working daily to provide their clients with legal advocacy and support to level the playing field in court and navigate the child welfare process. In isolated and rural places parent attorneys face unique challenges representing clients across great distances with limited resources. Yet all parent attorneys, from the largest urban centers to the most isolated rural communities, should be able to agree on common values that support a parent’s right to due process in the courtroom and dignity and respect when working with child welfare agencies.
The ABA Standards are a good place to start because they remind parent attorneys, first and foremost, that they are professionals and advocates. Standing beside and providing a client unwavering support and steady advice gets the best parent attorneys into the office day after day. The desire to improve practice and meet the ideals of the profession makes it possible for parent attorneys to continue advocating tirelessly for their clients despite constant challenges and limited resources.
Terrence P. Haas, JD, is a supervising attorney for the Alaska Public Defender Agency in Bethel, AK.
1. Cromartie, John (U.S. Department of Agriculture). How is Rural America Changing?, May 24, 2013, 3.
2. Ibid., 2.
3. 25 U.S.C. § 1901 et seq.
4. U.S. Department of Agriculture. Immigration and the Rural Workforce, 2017. (“In rural areas in particular, much of the increase in the foreign-born population has been driven by inflows of Hispanic immigrants.”).
5. Housing Assistance Council. Rural Research Brief, April 2012, 2.
6. The importance of best practices is not new. See generally Latham, Robert & Robin Rosenberg. “The Potential of Florida’s Effective Assistance of Counsel Doctrine to Increase Parent Engagement and Promote the Well-Being of Children.” Florida Coastal Law Review 17, 2015, 109, 160.
7. ABA Center on Children and the Law. “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”; See also Reiniger, Anne & Cindi Wood. “Guidelines for Representing Parents in Child Welfare Proceedings.” Wyoming Law, December 2013, 20.
8. For a discussion of one rural court system’s challenges, see generally McKeon, Hon. John C. & Hon. David G. Rice. “Administering Justice in Montana’s Rural Courts.” Montana Law Review 70, 2009, 201, 202.
9. See generally ABA Standards 7-10.
10. J. Jiang et al. “Neural Synchronization during Face-to-Face Communication.” Journal of Neuroscience 32, 2012, 16064–16069.
11. Meyer, Christian. “Face-To-Face Communication.” The International Encyclopedia of Communication Theory and Philosophy, 2016.
12. See e.g., Alaska Civil Rule 3(d) which permits hearings to be conducted “at a location which would best serve the convenience of the parties and witnesses” upon filing of a motion under Alaska Statute 22.10.040(2) and as incorporated by Alaska Child in Need of Aid Rule 1(e).
13. National Association of Judiciary Interpreters & Translators. NAJIT Position Paper: Telephone Interpreting in Legal Settings, February 27, 2009.
14. The National Court Reporters Association. Telephone Deposition, 2017.
15. ABA Standards 24.
16. ABA Standards 12.
17. Bean, Kathleen S. “Reasonable Efforts: What State Courts Think.” University of Toledo Law Review 36, 2005, 321, 355–58.
18. “Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C.A. § 1912 (West).
19. ABA Standards 26.
20. Bean, 2005, 321, 355–58.
21. ABA Standards 27.
22. ABA Standards 34.
23. ABA Standards 6.
24. ABA Standards 8.
25. ABA Standards 24.
26. ABA Standards 19.
27. ABA Standards 23.