To Have Impact Laws Must Be Enforced. Appellate Lawyers Do Just That


Each fall, students in the University of Michigan Law School’s Child Welfare Appellate Clinic represent parents in termination of parental (“TPR”) appeals. We don’t cherry pick our cases for ones we're likely to win.
Instead, at the end of July, we call up local courts and ask them to send us TPR cases in need of an appellate lawyer. We accept the first six we get. Then our students scrutinize the record, draft briefs and deliver oral arguments at the Michigan Court of Appeals.
            Despite the randomness of our case assignments, every semester we discover laws being unenforced, which we bring to the attention of our appellate courts. Because of this, since 2015, our clinic has won roughly a third of our cases. We’ve gotten appellate courts to strike down a TPR statute for being unconstitutional, find that the Americans with Disabilities Act requires agencies to design service plans to accommodate the disabilities of parents in child welfare cases, and hold that incarcerated parents can plan for their children by arranging for relatives to care for them. Again, our students have done this even though our cases are randomly assigned to us.
            Our experience is not unique. In 2018, attorneys working with the Colorado Office of Respondent Counsel, a governmental agency that has overseen parent representation in the state since 2016, has gotten appellate courts in the state to find procedural violations in nearly one of out three cases. Advocates in other states with high quality appellate representation have achieved similar results.
            These results deliver a straightforward conclusion – that child welfare systems need strong appellate advocates to enforce the law. In the past decade, both the federal government and states have passed an increasing numbers of laws to promote the interests of children involved with the foster care system. The federal government alone has passed four major pieces of legislation – the Fostering Connections to Success and Increasing Adoptions Act, the Child and Family Services Improvement and Innovation Act, the Preventing Sex Trafficking and Strengthening Families Act, and the Family First Prevention Services Act.
These laws, along with those enacted by states, have created a child welfare system governed by complicated procedures.
            Yet talk to advocates on the ground, and they will describe laws that routinely go unenforced. Child welfare agencies fail to make reasonable efforts to prevent kids from entering foster care or to place siblings together. Courts don’t ask children about what sort of relationship they want with their birth parents before terminating those parents’ rights. And far too often, relatives aren’t informed about ongoing child welfare cases until it is far too late for them to get placement of their kin.
The list goes on and on. But without strong appellate advocacy, these laws – key to promoting good outcomes for children in foster care – will continue to get unenforced.
            So how do we move forward?  The recent federal policy change to permit states to use Title IV-E money to support the representation of parents and children in child welfare proceedings allows states to immediately increase the amount of funds to support quality appellate advocacy. States should move to created specialized appellate practices, like those that exist in New Jersey, Maryland and North Carolina, among other jurisdictions.
Money alone, however, won’t solve the problem. Appellate advocacy is a nuanced skill – involving meticulous research, writing and editing skills – and states must ensure that advocates have the necessary training to do this. Just last year, the National Legal Aid and Defender’s Association – for the first time – created a family defense track for their annual training for appellate attorneys, which provided participants with intensive feedback on their writing skills.
Based on the success of that training, this week, the Michigan Court Improvement Project is piloting a similar one for appellate attorneys. Each state’s Court Improvement Project must prioritize appellate advocacy as an essential component of the infrastructure needed in any functioning child welfare system.
In about two months, my appellate clinic will start getting new case assignments. I suspect that we’ll continue to find laws that aren’t being enforced. Each time we win a reversal or a remand from the Court of Appeals, we will continue to strengthen the legal infrastructure that is so crucial in ensuring the well-being of children. And even when we lose, we increase the legitimacy of our child welfare system by ensuring the public that it is acting in a matter consistent with statutes and the Constitution.   

Comments

  1. I am always pleased to hear of child welfare decisions going to appeal. As you said, the laws aren't usually enforced, because families don't usually have access to counsel to appeal them.

    The other issue, which varies by state, is states having very little child welfare practice codified into law or published policy. Even if a family is able to appeal, there is often no statute or case law to even raise in terms of whether something is abuse/neglect or whether a family is entitled to certain attempts to address issues. I'm in Massachusetts, where comparatively speaking, there are clear statutes in terms of things like timelines and providing notice, but basically nothing addressing decision-making, ethics, not confusing poverty with neglect, etc. I see things like decisions that an adolescent walking to school is neglect, and we don't have even vague statutes stating the worker should have considered community norms and the child's abilities, or spoken with collaterals, or anything like that, so nothing can be brought up in appeal because the courts defer to the department as the experts on child welfare. Same thing with workers making factually untrue statements; I know of several cases where workers found abuse/neglect based on blatantly false narratives, but there was nothing that could be raised, because there are no statutes requiring the workers to even talk to anyone, obtain documentation, report it correctly, or anything like that.

    At least in my state, we need better laws on the books, but it's so politically unfavorable to suggest any changes to the department that are perceived as more work for them or giving them less power in "saving children." Granted most of the workers are ethical and do decent work, but it's so problematic that they're viewed as such saviors with a thankless job that no one could possibly understand.

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