Wednesday, November 21, 2007

More on Malachi: A Child Advocate Attorney Speaks

From an attorney who has represented both children and parents in the Child Protective System. He was initially not too happy with me for blaming the attorneys and social workers and the whole "due process" process.
I represented one father about 6 years ago, who was on his way to prison, and whose nine children (yes, nine) were in the child-protective system as a result. He was very bitter and wanted to fight the system. I met with him the night before the court hearing, and I asked him to consider whether fighting for his kids was in the best interest of his children, or whether he just wanted to fight for fighting’s sake. When he paused, I told him that I would meet with him the next morning before court, and if he could look me in the eye and give me one reason why fighting was in the best interest of his children, then I would fight all the way. But if he couldn’t, then I asked him to consider voluntarily relinquishing his parental rights. The next day, he did so.

I believe that attorneys should discuss relinquishing rights with their clients, and should not always assume that fighting is the correct approach. Perhaps that is one small area where the system could improve, through training for those involved. Many of the attorneys in the system are inexperienced or barely competent attorneys who either don’t understand the system, or don’t care about the cases very much. And there is a cultural problem among attorneys, where most assume that you must accept your client’s goals without question in order to fulfill your duty of representation. Law schools and bar associations should encourage attorneys to “counsel” with their clients to help them choose the most appropriate goal, rather than simply accept the client’s goal unhesitatingly.

But aside from better training for the participants in the system (including much needed training for social workers regarding the constitution and the integrity of the family unit), I’m not sure what the solution is on a system-wide level. In Michigan, under reform legislation in the 1990s (that I believe many states adopted), the parent has one year from the date a child was removed to get their act together, before the state will file a petition to terminate parental rights. And where there are serious allegations of abuse, the state may petition to terminate parental rights at the first dispositional hearing (after the court takes jurisdiction). Perhaps in the case you wrote about, given the history of that mother, the state should have sought termination sooner. But the laws already allow for that option in some circumstances. Is there some reform to the system or the legal framework that you are advocating? I am interested in considering any possible solutions (or improvements). I sometimes find these court hearings so depressing that I skip the rest of the day and go home to enjoy my wonderfully intact family and young kids!

I think I agree with you more than I first thought. Your article was strongly worded, and I still think blaming the attorney for the mother (and others) for the murder perpetrated by the foster family is incorrect. Balancing the needs for permanency and protection of children with preserving the integrity of parent-child relationships is very difficult. I’m not ready to say that we should abandon the procedural requirements before terminating parental rights. But I think that your comments about the broader cultural issues (i.e., on adoption) are dead on.

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