Chapter 15 Representing Parents on Appeal

• Library: Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 15 Representing Parents on Appeal

Andrew Cohen

15.01 Introduction

Many attorneys reading this chapter have already handled one or more appeals. Others are trial-level lawyers who are considering adding appeals to their plate. Those who handle trial-level cases understand that parents' lawyers suffer more losses than victories. Sadly, the same is true for appellate work. Few cases raise appealable issues that are likely to change the outcome. This is particularly true in jurisdictions where parents exercise a statutory right to appeal. Finding errors at the trial level can be difficult. Even when errors did occur at trial, unless those errors were properly preserved for appeal, the appellate court will typically ignore them. And even when errors were properly preserved, the standard of review on appeal is heavily weighted in favor of affirming the judgment.

Nevertheless, appellate work is both personally rewarding and incredibly important. The parent's appellate lawyer is the last defense against the life-altering judgment calls of often-undertrained social workers. The parent's appellate attorney is the only person who can ensure that an overworked judiciary doesn't cut corners, ignore fundamental rights, or rubber-stamp decisions of child protective services ("CPS"). The appellate attorney is often in the challenging position of trying to find, pick up, and assemble the pieces to a sad, incomplete puzzle. Many parents have been treated unfairly by CPS or the judicial system. After meeting those parents and reviewing the record, counsel will commonly feel a very real indignation, if not fury, about how the client was treated at the trial level. Winning such appeals means more than just rectifying injustice for one client; it means educating the appellate court about problems in the child welfare system. In addition, every appellate victory is a not-too-subtle reminder to trial judges that they are not the final arbiter of rights and interests, and that the appellate review process is meaningful.

This chapter is intended to encourage lawyers to work on appeals in child protection cases and to inspire them to do great appellate work. But beyond inspiration, this chapter is written to help the appellate lawyer win. It is intended to teach appellate counsel to communicate effectively with parents, work cooperatively with trial counsel, identify potential winning issues, brief those issues effectively, and present a compelling oral argument.

15.02 Client Relations

Some appellate counsel in child protection cases were also counsel at the trial level. In those cases, of course, counsel already has a long-standing relationship with the client. In many cases, however, appellate counsel will be new to the case and will not have met the client before being assigned or retained to handle the appeal. For lawyers contemplating handling an appeal for a new client, the first step is to run a conflicts check to ensure that counsel does not represent, and has not previously represented, any other parties or witnesses in the case. The possibility of conflicts increases dramatically if counsel regularly accepts appeals from certain courts or counties. Many conflicts are waivable, but it is crucial that they be caught early in the process.

Assuming there is no conflict, the next step is to ascertain what the client is seeking. Counsel cannot take a position on appeal—indeed, cannot do much at all—until the client explains his or her goals. And counsel cannot expect the client to make an informed decision about appellate goals until counsel has discussed the appellate process and explained to the client all available options. An in-person meeting to start the representation works best because there is so much to discuss.

15.02(a) Locating the Client

Before discussing the case with the client, the first step is to arrange to meet with him or her. In some circumstances, the parent may contact appellate counsel; other times, counsel may meet the parent at the trial courthouse. But in many cases, appellate counsel will have to track the client down.

Depending on the jurisdiction, appellate counsel may receive contact information for the client when assigned the appeal. But if not, appellate counsel should get all contact information from trial counsel as soon as practicable. If trial counsel does not have it, or if the contact information from trial counsel (or the court or other appointing authority) is no longer accurate, appellate counsel will have to find the client him- or herself.

If appellate counsel cannot contact the client and get direction about the appeal, it is difficult to determine the next steps. It may be sufficient to rely on information from trial counsel, provided trial counsel can explain why the client appealed and what the client's last instructions were regarding the case. If those instructions were detailed and recent, appellate counsel can proceed with some comfort. But if the client "disappeared" well before trial and trial counsel filed the appeal based on stale instructions, appellate counsel is best advised to contact the appointing authority, bar counsel, or the state ethics agency for guidance. In the absence of meaningful direction from the client, or when the client's last instructions no longer make sense—for example, the client's last instructions before disappearing were to advocate for her aunt to adopt the child, but the client's aunt has passed away or no longer wants the child—appellate counsel has two options: withdraw from the appellate representation, or do nothing and wait for the client to reappear. If counsel chooses to do nothing, the case may be dismissed for failure to prosecute.

15.02(b) Communicating with the Appellate Client

15.02(b)(1) Relationship-Building

As noted above, appellate clients have the same issues as trial clients, but those issues may be worse or more deeply entrenched at the appellate stage. Some parents will have been mistreated by the system; some will believe that they have been mistreated even when they weren't. Most of them are very upset about losing at trial. Some will be angry at their trial lawyers for failing to prepare them adequately for trial or failing to present certain evidence or witness testimony, and some of those parents will be deservedly angry. Almost all of them will know relatively little about the appellate process.

Appellate counsel needs to address these matters and earn the parent's trust before beginning to try to gather the information needed to write the brief. The initial meeting with the parent is not the time to explain the rules of appellate procedure, the standards of review, or the roles of appellate judges. The initial meetings are for relationship-building. The best way to create trust is by listening closely to the parent and empathizing with him or her. The subject of meeting and getting to know the client is discussed in greater detail in Chapter 3. Empathetic listening is as important to the client as it is to counsel. Most parents at the appellate level have lived apart from their children for a significant period of time; many will never regain custody. They are often sad, angry, and scared. Appellate counsel may be their last hope. Even if counsel cannot change the outcome in the case, counsel can offer the client empathy, respect, and some answers to his or her questions.

It is also important to use an early meeting with the client to disabuse him or her of a common misconception. Many parents think of "winning" as getting their children back. Some appellate courts have, in fact, vacated trial court decisions and remanded with instructions for the trial court to dismiss the case and return children home, but that is rare. In fact, most of the time, "winning" an appeal simply means a remand for a new trial or consideration of additional evidence. This is a complicated concept for many parents, and it is important to clarify what is likely to be the best outcome in a successful appeal: the child will not be returned unless the parent wins the new trial, which is far from guaranteed. And if the parent loses again, there will be another appeal. During this time, the parent might have no visits with the child, and the child may be bonding with pre-adoptive foster parents.

This is grim news for most parents. When this news is coupled with information about how difficult it is to win an appeal, some parents decide that an appeal isn't worth the trouble. They don't want to endure a long appeal that promises little benefit, or they do not want to put their children through the process. Counsel's purpose, of course, is not to dissuade the parent from appealing; it is to avoid creating unrealistic expectations.

Parents may have other misconceptions about the appellate process. It is important to clarify that an appeal is very different from a trial. There will not be regular hearings at the appellate court; there may be none at all. Only counsel will present the case orally (if there is an oral argument); the parent will not have the chance to stand and speak his or her mind about witness credibility, fairness, parental fitness, or the child's best interests. And the parent's appeal is (in most circumstances) limited to the evidence heard by the trial court; new information about his or her progress in treatment, recently obtained restraining order, or concerns about the foster parents' alleged misdeeds are not part of the record that the appellate court will consider. It often helps to explain to the parent that counsel is merely serving as the messenger of disquieting news; counsel is not responsible for the rules.

15.02(b)(2) Ongoing Contact

Some jurisdictions or appointing authorities have rules regarding the amount and frequency of contact appellate counsel is expected to have with their clients. Regular contact with the client is important for both guidance and client relations. The client's goals may change over...