Thursday, October 15, 2009

Defense-less in Michigan

Here's what happens if you're poor and a child protective services worker decides your child should be taken away from you.

The worker can make that decision on the spot. Either she can take the child herself, or she can call law enforcement to do it for her. In theory, that's only supposed to be done in an emergency – but guess who defines "emergency."

Your child, often feeling terrified – if she's young enough it can feel like a kidnapping – is trapped in foster care, not knowing if she'll ever see you again, at least until the first court hearing. That might be in "only" 24 hours - a long time in itself for a very young child - or it might be up to two weeks.

Lawyers working with CPS have used that time to prepare a case. The standard of proof they have to meet is not "beyond a reasonable doubt" – the standard used before a child murderer can be convicted in criminal court, or even the middle standard, "clear and convincing." Instead, in most states, it's merely "preponderance of the evidence," the same standard used to determine which insurance company pays for a fender-bender.

But as a practical matter, there is no standard. Because the judge knows that if he rubber-stamps hundreds of such removals the child may suffer terribly - bouncing from foster home to foster home, probably facing at least a one-in-three chance of abuse in foster care - but nothing will ever happen to the judge. Send one child home and have something go wrong and the judge knows his career may be over.

And to top it off, if the judge or CPS cut a few corners, in most states no one will ever know – because all the court hearings are secret.

And who does the parent have in her corner, standing up for her child's right to be free of foster care and back with her own family? If she's very, very lucky, she has a dedicated, hardworking lawyer with expertise in the field who has a reasonable caseload and the support staff necessary to make sure the judge knows "the other side of the story." Far more likely, she'll have someone who really may want to help, but is so overloaded with cases that he can provide no real defense. Or worse, it will be someone who hates her as much – or more – than CPS, works out of his briefcase and piles on the cases because it's the only way he can make a living.

In almost every case, the lawyer only met the parent outside the courtroom moments before that first hearing – which, as NCCPR Board Member Prof. Paul Chill of the University of Connecticut School of Law has written, is, in fact, the most important in the case and sets the stage for everything to come. (In child welfare, possession of the child is nine-tenths of the law, and this is the hearing that rubber-stamps CPS possession of the child.) In many cases, the lawyer isn't even appointed until after that hearing.

The latest glimpse into the dismal state of representation for parents – and the terrible consequences for their children - comes from a report of the American Bar Association Center on Children and the Law on parent representation in Michigan.

I'll get to the dismal findings in a moment. First, let's deal with the reason things are so dismal. It's something everyone knows but almost no one will say out loud. There is nothing to gain politically by funding high-quality legal representation for "child abusers."

But all parents whose children are torn from them are no more "child abusers" than everyone arrested is a criminal. That's supposed to be what courts are there to determine. If anything, high- quality defense counsel is even more important in child welfare cases, because in these cases it's the alleged victim – not the accused - who winds up sentenced: to foster care.

While there are times when that is, indeed, the least detrimental alternative for a child, the report itself recognizes how often that simply isn't true. (For anyone who needs still another reminder, see the comprehensive comparison of outcomes for children left in their own homes vs. children placed in foster care in typical cases, described on our website here, as well as our summary of other studies.)

Indeed, the ABA Center for Children and the Law gets it. After reciting the familiar litany of failings in the foster care system, the report notes that

Research shows improved legal representation for parents can reverse these negative trends. Better representation for parents can decrease unnecessary removals of children from their families, increase the amount and quality of services parents receive, increase the frequency and quality of visitation between children and their parents, foster the use of kinship placements, and decrease the amount of time until a child is safely returned to her parent. Parents in Michigan should have access to the kind of high quality representation that will ensure their voices are heard when decisions are made about their children. Children in Michigan will then have the best possible chance at growing up as part of the family that loves them the most. [Emphasis added]

Later, the authors add:

the constitutional rights of parents and the best interests of the child are often not in conflict. There is a growing recognition in the child welfare and legal communities that quality parent representation can protect parents' constitutional rights and improve outcomes for children. … Studies in Washington State have shown that better parent representation improves reunification rates. Washington also found quality parent representation improved outcomes where safe return was not possible

There is more on Washington State's success on page 70 of NCCPR's first Michigan report available at

And examples of how high quality defense counsel for parents helps children can be found in recent stories in The
Detroit News
, Michigan Lawyers Weekly, and the Detroit Free Press about the Detroit Center for Family Advocacy, one of the rare programs providing such help in Michigan.

Report findings

The report's findings concerning representation for most parents are no less appalling for the fact that they come as no surprise:

All over the country, lawyers who do the job well say that they do the overwhelming majority of their work, and their most important work, outside the courtroom. That's when they get to know the family, do their own independent investigation – since the case files prepared by child welfare agencies so often are flat wrong - and come up with alternatives to the cookie-cutter "service plans" from CPS agencies that often only worsen a family's plight.

But in Michigan, most lawyers never do any of that – because they don't have time to do it and/or are not paid to do it.

Only 15 percent of parents indicated they had any face to face meetings with their lawyers other than at the courthouse just before their hearings.

Report authors saw instances in which lawyers clearly did not even recognize their own clients as they sought them out in court waiting rooms.

Even some caseworkers are appalled. "I would like attorneys to be involved between court hearings," said one caseworker. "The attorney usually comes to the courthouse and says 'Who is my client?' then goes to talk to them in the hall … They only know what's in the court report. I doubt if they know what's going on with their clients, or care."

Another worker said attorneys sometimes don't even read the court reports. Said one caseworker: "…attorneys are chatting in the attorney conference rooms, rather than talking to their clients." Said another: "I hear parents' attorneys making lots of negative comments about their clients … they use their clients' names in casual conversation; they shouldn't stand around joking with social workers, especially when the parent is there."

Jackson County is particularly dismal. Four fifths of parents have no lawyer at that first, most important hearing, 31 percent have no lawyer at subsequent hearings and even at the hearing where children may lose their parents forever – the termination of parental rights hearing – 28 percent have no lawyer. Genesee, Ottawa, Kalamazoo, Lapeer and Midland Counties also do particularly poorly at providing representation at the first hearing.

In one county (the report doesn't say which) judges are so appalled that they report trying to take over the job themselves, asking of witnesses from the bench the kinds of questions parents' lawyers should be asking.

45 percent of judges surveyed said parents attorneys rarely called expert witnesses, and 60 percent said they only sometimes filed written motions and cited legal authority. But in a focus group one lawyer had an explanation for that: "Judges don't want to hear legal arguments," he said.

Where the report falls short is in its recommendations – mostly tepid half-measures. In fact, what children in Michigan and everywhere else need is for their parents to have top notch representation along the lines of the Detroit Center for Family Advocacy and similar efforts around the country; an institutional provider employing salaried lawyers with their own support staff.

Most parents who lose their children to the system are nothing like the sadists and brutes whose cases make headlines. And that's why it is so urgent for their children that these parents have someone making a competent case on their behalf.

Money is no excuse for failing to provide this assistance, or at least implement the recommendations in the report – because these recommendations also are money savers. Foster care is expensive – group homes and institutions more so. By reducing needless foster care, high-quality legal representation for birth parents is likely to pay for itself.

That means the recommendations in this report are more important than anything in the pathetic consent decree between the Michigan Department of Human Services and the group that so arrogantly calls itself "Children's Rights." The decree is, of course, silent on this issue. And initially, before the savings start to accrue, the recommendations could be paid for by diverting some of that money Michigan Department of Human Services Director Ismael Ahmed is throwing at residential treatment providers in the form of rate increases.

The most fundamental right of any child is that all sides be able to make the best possible case so a judge can make the best possible decision. But that is impossible if that child's parents are, literally, defense-less.

To the extent that there is any good news in Michigan courts at all it is simply this: in Michigan, unlike most states, court hearings in these kinds of cases are open. So no reporter needs to wait for a report to see the parade of injustice pass by. She or he can just walk in and watch.