Chapter 17 Reforming the System
Library | Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.) |
CHAPTER 17 Reforming the System
Joanne I. Moore
17.01 The Importance of Systemic Reform Work
Many parents' attorneys went to law school to acquire the tools to seek justice in the world. Our legal system promises "liberty and justice for all," yet the media is replete with stories about poor and minority individuals receiving less than fair treatment. In dependency courts, one can see hearings in child welfare cases brought by government entities against impoverished parents who are bewildered and have little capacity to defend their families. At stake in these hearings is one of parents' most fundamental rights: the ability to raise their own children. Although most states guarantee the right to counsel to these parents, this right alone falls far short of ensuring that the system provides justice for all.
Attorneys who represent parents in child welfare cases have myriad opportunities to initiate systemic changes to improve fairness for parents and families. Parents' lawyers have profound exposure to how the child welfare system operates and how it may help some families, yet go terribly wrong for many others. They are knowledgeable of advocacy techniques and how to move legal matters forward. Perhaps most importantly, parents' lawyers understand and appreciate the strengths and value of their parent clients, which are often overlooked by other stakeholders in the child welfare system.
Uniquely, parents' attorneys have frank, direct conversations with their clients, which allow them to better understand their clients' realities. Parents involved with the child welfare system face numerous obstacles: detrimental effects of inadequate visitation rights, biased expert evaluations of parents, long periods of time between court dates, deficient services, and debilitating poverty, among many others. As cases progress, attorneys for parents learn about the challenges their clients suffer, and they witness the tireless devotion that these parents have to their children nevertheless. Importantly, parents' lawyers aim to protect parents through the difficulties in bringing their children home, especially when judges and department social workers misunderstand or disregard these difficulties.
Parents' attorneys get a direct view of injustice, which provides them with knowledge of what needs to be changed in the system—and can fuel their passion to take it on. Attorneys can access a number of paths to effect significant change in the legal system. They should assess their own skills and environment in choosing which efforts to take on and how to pursue them. Through careful planning and action, they can bring about huge changes to benefit the lives of their clients.
To diligent parents' attorneys who give 110 percent to representing their clients, tackling system reform may seem daunting. However, systemic reform is achieved most often through careful planning and fidelity to strategy that do not require a vast number of hours. In fact, the time parents' attorneys dedicate to promoting systemic reform now can make their representation of clients much more efficient in the future. For example, if the process for obtaining a specific service is improved, attorneys do not have to argue the same motion for that service over and over.
The child welfare system already provides opportunities for parents' attorneys to initiate reform at every level—including the trial, appellate, and state levels—but parents' attorneys must come to recognize and seize these opportunities. This chapter discusses some potentially successful methods for changing the legal system and ways to implement them. These methods include the promotion of parents' and parents' attorneys' voices in policymaking, participation in local and statewide court reform committees, the creation of new laws through state legislatures and court rules, strategic litigation and appeals to create new case law, and the establishment of a new parents' representation program. First, several general themes and recommendations that commonly apply to systemic reform will be discussed.
17.02 Work with Other Parents' Attorneys if Possible
An army of peers can usually accomplish far more than a single attorney working alone. Parents' attorneys should look for other like-minded professionals by joining an organized effort in the jurisdiction or area, or by organizing collective action in their area from the beginning. On the local level, enlisting colleagues to brainstorm about issues and how they might be addressed—both case issues and systemic issues—enriches understanding and strategy. Attorneys can make plans to effect change together, with different attorneys fulfilling different roles in the joint effort. Part of the strategy might involve weighing the talents available in the group. For example, some attorneys may be best suited to focus on the trial or appellate courts, others may want to tackle the state legislature, and still others may decide to join a child welfare reform committee. On a broader level, inviting judges, politicians, and social workers, among others, to join the conversation would add necessary perspective and could lead to feasible ideas for collaboration.
Meeting with parents' attorneys from other courts across the state could likewise provide opportunities for enriching reform strategy. Statewide listservs multiply each attorney's resources for case strategies, pleadings, information about experts, and case law analysis, and broaden opportunities for finding out how other courts and child protection departments work and what constructive programs or services have been implemented elsewhere. The American Bar Association (ABA) National Project to Improve Representation for Parents' listserv serves the same purpose nationally. If no listserv exists in a particular state, implementing one would be an effective start to systemic change.
17.03 Be Knowledgeable, Do Homework, and Use Data
Whichever manner of system reform one considers, maintaining factual accuracy throughout the effort is critical. Obviously, any attorney who wishes to achieve change through litigation or appellate advocacy must keep abreast of changes in the law and systemic realities to argue for change effectively. It is important to have a strong basic understanding about the state or county department. A comprehensive familiarity with case law and the statutory regime strengthens an advocate's skill set and, undoubtedly, impacts his or her persuasiveness.
Once a parents' attorney becomes reliably knowledgeable about the relevant legal framework, he or she will be regarded as a leader, whether working in a court reform committee, a legislative environment, or a more informal, grassroots environment. The more one observes and learns about the legal and child welfare systems, the better. Due to the complexity and challenge of representing parents, parents' lawyers probably already have a solid foundation of knowledge to draw on. Continuously updating one's knowledge base is as important for effective reform as it is for excellent practice in court.
Parents' attorneys who successfully achieve systemic reform should ensure the reform stays effective and strong. For example, attorneys who have effected change through a court system reform committee should continue to support the committee by volunteering to take minutes, help draft agenda, make follow-up phone calls, and so forth. Notably, the individuals who participate in planning and writing the pamphlets and messages that committees produce gain critical influence over the final product. Parents' attorneys in a North Carolina program, for example, volunteered to participate in the child protection department's production of videos for parents to ensure that the videos had a supportive tone. In many other states, including California and Washington, parents' attorneys who participate in court reform committees volunteer to assist judges in preparing agenda or materials, or conduct research on behalf of the committee. Parents' attorneys' who carry out various committee-related tasks end up rewarded by a more positive impact on the system than if they left the tasks to others. See Section 17.09 for further discussion of how court systems change committees.
Time spent gathering statistics also is well spent. An advocate's ability to research and utilize data (and in appropriate areas, to generate it) is a powerful asset in pursuing any strategy for changing the legal system. The child welfare field is rich with data: the Children's Bureau reports on the states' practices and case outcomes, and creates periodic Child and Family Service Reviews (CFSRs) for each state, and, in innumerable states and counties, statistical reports of various sorts are compiled. The child welfare and court systems, like many fields, features a culture of conventional wisdom based on "facts" that may be exaggerated or imprecise. Therefore, an advocate's knowledge of real facts and their sources provides a powerful way to persuade stakeholders.
17.04 Pursue Incremental Changes
An important concept in system reform is to pick battles carefully. Although it may be too easy to list a myriad systemic child welfare problems, no advocate or group of advocates can take them all on. Occasionally, the sustained mission and passion of one or more attorneys can fuel prompt system-wide reform (especially through litigation or appellate representation). Frequently, however, immediate big changes are elusive; a more constructive method often is to implement incremental changes. This is especially true when working with judges and system-change committees.
Part of an attorney's analysis of which changes are worth pursuing should be to review painstakingly the political and funding realities of the problem and the system, and the attorney's time and financial resource limitations. Sometimes this requires self-discipline—for example, resisting the temptation to construct a new, ideal...
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