Lawyers and Due Process

 “But he had a lawyer, right?” the appellate judge asked. As soon as the judge asked the question, I knew we’d lose the case. 

It didn’t matter that the father – who appeared via phone at a virtual hearing to determine whether his children should be removed based on allegations of abuse – stated that he had never spoken to his lawyer. It didn’t matter that the child welfare agency had never bothered to serve the father with a copy of his petition, thus precluding him from actually knowing the allegations against him. It didn’t matter that the lawyer – who had never communicated with his client – was waiving all sorts of rights on behalf of the father. 

These things didn’t matter because the father had a lawyer. And that’s all that mattered to the court. 

Few things matter more to us than our children, and our right to raise them. Nevertheless, in cases involving the state’s ability to strip us of that right, appellate courts all too frequently look for reasons to deny justice to families. Did the parent have a lawyer?  Did the lawyer properly raise the issue? Did the lawyer demonstrate that the error dramatically impacted the outcome of the case?  

While perhaps these questions would be justifiable in an ideal system of law, juvenile courts – in which due process is an illusory concept – are far from that. In courts across the country, parents still never get an attorney to represent them until far into a case, after key decisions have already been made about a child’s placement in foster care. 

Outside of major cities, even when parents get an attorney, the attorney is likely to be underpaid and overworked, and lack any specialty knowledge of the child welfare system. In many jurisdictions, a law student can graduate law school, pass the bar exam and get listed on roster of attorneys able to get appointments in foster care cases, without receiving any training whatsoever in child welfare law. As a result, the quality of lawyering in this field is abysmal, with key issues rarely being raised by attorneys who have spent little time with their clients. 

Given this reality, the fact that a parent had a lawyer tells us very little about whether he was able to access justice. And nobody knows this better than the appellate judges who see this play out in every child welfare appeal. 

Termination of parental rights appeals comprise a significant portion of any appellate docket, and thus, judges pore over transcripts in these cases. They see the inadequate lawyering taking places at hearings. They witness the injustice of parents navigating systems without real advocates. They discover important issues in appeals that weren’t raised or briefed by the lawyers. Yet, all too often, they still don’t care.

I suspect they don’t care because upending well-settled principles of appellate practice –  based on ideal systems of law – complicates their decision-making. When attorneys fail to do their jobs well, and issues aren’t raised or clients aren’t informed of their rights, it challenges the rules of their judicial practice. 

That is not an excuse. They must confront the harsh realities of broken systems. They must challenge trial courts, who have been blind to obvious violations of due process. They must ask tough questions about whether parents actually received the process they were due. And to do so, they might have to deviate from the principles that govern the ideal.

But instead, often these judges choose the easier path. They proceed by ignoring harsh realities. They incorrectly assume that a lawyer has spoken to their client and has prepared for a case. They delude themselves into believing that when a lawyer waives a right, they have carefully considered it with their client. They persuade themselves that if there was a valid issue to be raised, the lawyer would have raised it down below. They do these things, despite knowing that none are true in most child welfare appeals.

These judges do so knowing that they will face few consequences for the fiction they rely upon. Child welfare cases involve parents who have been marginalized and are politically powerless. They are the poor and the homeless. They have mental illnesses, or have addictions to drugs. They spent time in foster care themselves, or were victims of human trafficking. They are those discarded by society. They lack the power that systems respond to. They don’t have the strength to challenge the prevailing narrative that the presence of a lawyer automatically means that due process was served.

Our client lost his children without even knowing the allegations against him. But at least he had a lawyer.