Preface

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

This book is written primarily for "family defenders"—lawyers and other advocates working with parents in court or administrative proceedings brought against them by the local child protection services agency. These proceedings are variously known as "dependency," "child neglect," "child abuse," or child protection," depending on the locality. In some of these cases, the local agency may be seeking nothing more than a protective order of some kind, directing that a caregiver do or refrain from doing something. In other cases, the agency may be seeking a child's removal from his or her family or the child's continued placement in foster care. In still other proceedings, the agency may be seeking permanent termination of parental rights. In all these proceedings, the state, through the exercise of its parens patriae or police powers, charges parents or other caretakers with being inadequate in the rearing of children.

It would be difficult to find a more important type of legal proceeding implicating an individual's rights. Many forms of state intervention potentially impact an individual's basic rights, interfering with someone's property or liberty. For many people, criminal proceedings are regarded as the form of state intervention that most threatens our most basic right: the right to remain free in society and avoid imprisonment. But child protection cases implicate rights that others would regard as even more fundamental. Many parents certainly agree with Justice Stevens's observation more than thirty years ago that depriving a parent of rights to raise one's child—"a deprivation of both liberty and property"—is "often . . . the more grievous" compared to sentencing someone to prison ("a pure deprivation of liberty"). Lassiter v. Department of Social Services, 452 U.S. 18, 59 (1981) (Stevens, J., dissenting).

All of this suggests that "family defense"—working on behalf of adults threatened by state intervention with the temporary and permanent loss of the custody and rights to their children—would be a well-known, highly prized legal field, at least comparable in status to criminal defense, and arguably, even more esteemed because of the importance of the threatened substantive rights. Sadly, this is anything but the case. Family defense is an outlier field, barely known to most lawyers and law school professors, let alone among Americans more broadly.

Why this is so is complicated. One reason has to do with its relative youth. Criminal prosecutions brought to punish law violators—well-known and feared by the Founding Fathers—are the focus of three specific Bill of Rights Amendments enacted when the country began. But the modern regime of state-initiated legal proceedings carrying the potential power to remove children from their families and to cut permanently children's ties with families only began in 1974 when Congress enacted the Child Protection and Treatment Act, federalizing much of the child welfare field. By that time, the Supreme Court had already interpreted the Sixth Amendment to require a lawyer for criminal defendants. See Gideon v. Wainwright, 372 U.S. 335 (1963); see also Argersinger v. Hamlin, 407 U.S. 25 (1972). But in 1981, when it was first asked whether parents in family defense cases also have a right to counsel, the Supreme Court held that there is no such automatic right. See Lassiter v. Department of Social Services, 452 U.S. 18 (1981).

No less important a difference between criminal prosecutions and child protection cases is their relative impact on society as a whole. Though criminal proceedings are disproportionately brought against poor people, many prosecutions are brought against rich and powerful people each year. Most Americans know somebody who has been a defendant in a criminal case. Film and television regularly tell stories involving criminal...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT