"Code Talk"
“CODE TALK”
After
practicing for five years as a parent attorney, I have become well versed in
the language of child welfare. What is this language? It is basically an incomprehensible
set of acronyms or phrases that have the effect of being both exclusionary and
sterilizing in the courtroom. It is language that everyone in the courtroom
understands, except the parents and the children, the people for whom the
language is most relevant. There is no better way to have a parent zone out than
to use language that would require a law degree to understand. For example, we
routinely refer or allude to ASFA, CAPTA,
reasonable efforts, MNR, PPH, probable cause, dependency, contrary to the
welfare, APPLA, WTLP, permanency plan, action plan, diligent search, individual
level outcomes, family level outcomes, EPAC, and lastly and most notably, TPR.
This is
language that disrespects parents and promotes disengagement from their cases.
If they don’t understand what everyone is talking about, what is the point in
engaging? Further, the routine use of incomprehensible language sends parents
the message that the system does not really want to engage them or solicit
their meaningful input.
In
a historical context, “code talking” most commonly refers to the use of tribal
languages to transmit secret messages during World War II. It is ironically this language, intended to
exclude the enemy, that actually belonged to groups of people who had
experienced routine exclusion by the Federal Government. In the context of
child welfare, this exclusion involved removing and separating native children
from their families and tribes of origin, a practice that had devastating and
genocidal effects.
While
codes have the effect of being exclusionary, they can also sanitize the subject
being discussed. And by sanitizing, I don’t mean clean, I mean as Merriam-Webster
defines it—to make it more acceptable by
removing unpleasant or undesired features. There is nowhere this action is
more troubling than the TPR acronym. TPR, termination of parental rights, is
for parents a death case. For parent attorneys it is what a capital case is for
criminal defense attorneys. It is the end of the road. It is literally the
death of family. There is nothing less unpleasant or undesirable than a
termination of parental rights for our families, and yet our reliance on a
three-letter acronym seems to remove this gut punch. It makes the action appear
innocuous, minor, and inoffensive, when in reality it is the exact
opposite. It has the effect of removing
the severity of the action and perhaps sanitizing (and by sanitizing in this
case, I mean to make clean) the hands
of the individuals pursuing this option.
The
problem with this is that every single stakeholder involved in child welfare
should be acutely aware at every hearing and stage of the case of the severity
of this option. “TPR” should not be thrown around with such a cavalier attitude
as “LOL” or “OMG.” It should be spoken out loud and in full, not only so
everyone can understand it, but because the power to pursue and impose this
lethal option on families must be practiced with due respect for its life-changing
consequences.
I agree entirely with Emma's perspective. Glib use of "TPR" is exclusionary and demeaning, particularly in the presence of a client. I also agree that the effect of a termination of parental rights is the equivalent of the death penalty for a family. But don't listen to me: that is what a New Jersey family court judge declared in 2004, calling termination of parental rights "the equivalent of civil capital punishment" because “termination of parental rights results in a complete loss of a parent-child relationship,” N.J. Div. of Youth & Fam. Servs. v. V.J., 386 N.J.Super. 71, 81 (Ch. Div. 2004). That judge recognized that language frames what matters. A maxim from V.J. also offered a guiding principle for such cases: “Recognition that in such legal proceedings the result is of such great magnitude to the parents and children requires courts to maximize judicial protection at least as much as in any pending criminal matter.” Despite much ridicule when parent defense lawyers made such claims, this perspective finally was echoed in 2015 in a decision by a New Jersey intermediate appellate court, and later affirmed by the New Jersey Supreme Court. In re J.E.V., 442 N.J.Super. 472, 481 (App. Div. 2015), aff’d 226 N.J. 90 (2016). But perhaps worse than the use of "TPR" is an even more offensive practice that uses other words or phrases to name these cases, such as calling them "guardianship" cases, or “children in court” cases or even “abuse and neglect” cases. In 2013, our Supreme Court in New Jersey added another naming device to these "child protection" cases that precede termination cases, calling them "civil prosecutions by the State." We need to say clearly that the State is not providing "guardianship," that children are rarely in court and that these cases mostly arise from poverty and crisis, not serious neglect or abuse. So changing court culture matters, particularly in the closed courtrooms that also often isolate our largely indigent clients. Our practice is still largely aspirational. But we move forward in providing our clients with respect and dignity -- sometimes a word at a time.
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