Chapter 3 First Steps in Representing a Parent Accused of Abuse or Neglect

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

CHAPTER 3 First Steps in Representing a Parent Accused of Abuse or Neglect

Matthew Fraidin

3.01 Building a Relationship with the Client

The challenges of representing parents in child welfare matters start right away. Because the vast majority of parents involved 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 that 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 have a significant impact on 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 above all else at this moment in her life is a respectful professional who avoids all prejudgment and shows proper respect for the parent by listening carefully to what she has to say and demonstrating a commitment to work on her behalf going forward.

3.02 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 twenty-four to seventy-two 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 that 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" (see Chapter 4) 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 almost immediately.

The Agency's knowledge of the family is almost always limited to a very 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 that 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.

As soon as the appointment is made, counsel should secure the Petition and all supporting papers. Counsel should specifically request all documents provided to the Court. Counsel should also ask for all other records in the Agency's possession regarding 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...

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