Misrepresenting Families

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Last July, Dettering “Kool D” Hamilton was accused of neglecting his three children by allegedly using cocaine. The city’s Administration for Children’s Services sent the children, including a newborn, to live with their mom’s sister. Hamilton wanted to be able to see them, and only a family court judge had the power to make that order.

Hamilton told the court he was planning to hire a lawyer. But like most parents who end up in family court, he really couldn’t afford one. Once an engineer for the city Housing Authority, Hamilton now supports himself on disability payments resulting from a work-related injury.

Even without a lawyer, Hamilton thought he had a fair chance to convince his judge to let him at least visit his children. He possessed documentation that he believed suggested his positive drug tests were actually based on other people’s samples. One of the tests had an identification number that did not match his Social Security number. (A representative from the program later testified that identification numbers were different from Social Security numbers.) The other test suggested the hair analyzed belonged to a female. Showing the judge these documents and pleading his case seemed like the best thing to do. The judge, however, wasn’t interested in evaluating his papers. “When I tried to shed light on the truth,” says Hamilton, “I was denied that right.”

Hamilton finally got a lawyer in late September, assigned from a panel of attorneys who are paid by the city of New York to represent parents in family court who cannot afford their own lawyers.

In theory, he would have been appointed one of these court-assigned lawyers, or “18bs,” from the first day he showed up in court. Until recently, when an unemployed or disabled parent like Hamilton showed up without a lawyer, judges commonly insisted on bringing in an 18b automatically, to make sure that a case could move forward without delay. But that didn’t happen here. Instead, each time Hamilton showed up for a hearing last summer, his case was adjourned because he didn’t have a lawyer.

Once he had a lawyer, Hamilton soon won visits with his kids. This March, the judge ruled that he had neglected his children. But later this spring, Hamilton was certified clean from drugs. The judge allowed the children to return to Hamilton and his wife, nearly a year after they were removed from their home.

It’s not unusual these days for parents to try to represent themselves in family court. Or for people with very low incomes to be told to pay for their own private attorneys even though they can’t realistically afford one.

For more than three years now, there’s been a crisis in family court in New York City. There just aren’t enough lawyers willing to represent indigent parents. In Manhattan, there are now about half as many lawyers on the assigned counsel panel–called “18b” after an article of New York’s County Law–as there were in 1999.

In other boroughs, the number of lawyers officially listed as panel members is approximately the same, or in some cases greater, than it was several years ago–for example, Brooklyn has 94 attorneys now listed as active, compared to 79 in 1995.

But the numbers don’t tell the whole story. Not all attorneys listed on the panel roster are actually taking work. Some are in family court every day, representing indigent litigants; others appear only occasionally. But in the meantime, the number of judges has nearly doubled, and case filings have increased by 23 percent–resulting in lawyers being spread so thin they can’t take on all the cases coming into court. In Brooklyn, there are now 14 judges, up from eight in 1991. On top of that, courts now use hearing examiners to conduct certain routine proceedings; in Brooklyn alone, there are 20. Harriet Weinberger, who oversees the assigned counsel in Brooklyn, Queens and Staten Island, says she hopes for a 50 percent increase in lawyers.

The lawyer shortage has hardly gone unnoticed. On the editorial pages of newspapers and in the halls of Albany, calls for raising lawyers’ pay above their current rates of $25 an hour for out-of-court work and $40 for in-court have been loud and frequent. For more than three years, Judith Kaye, chief judge of the New York State Court of Appeals, has campaigned to raise the rates, publicly proclaiming the situation dire.

The lawyer shortage is so bad that this winter, a New York State Supreme Court judge took the extreme step of declaring New York’s court-assigned representation system unconstitutional, and issued an injunction ordering pay raises to $90 an hour. New York City and State have both appealed that ruling.

But while the immediate effect of the attorney shortage is well-appreciated within the walls of family court, its impact on families in the foster care system is far less understood. One immediate consequence is obvious: Many parents whose children have been taken by ACS–it’s hard to say how many–have to wait weeks, even months, for a lawyer to be appointed. But what then? What happens to families when parents can’t obtain meaningful legal representation, even when the future of the family is at stake?

In the dingy halls of Manhattan family court, where parents, family members and caseworkers slump listlessly on plastic chairs waiting to see the judge, everyone waiting for a lawyer has a story to tell. Like Hamilton, parents just coming into the process often cannot see their children. Even if they have relatives who are willing to take in the children–an arrangement lawyers commonly request when a parent is charged with neglect–their children might be sent to a foster home instead. Parents, desperate to get their children back, try to represent themselves in court–almost always a strategic disaster.

The lawyer shortage has settled in as a chronic condition, a painful fact of life in an already chaotic environment. “It’s no different from living under Orange Alert or some other horror that we deal with,” says Stephanie Nilva of Legal Information for Families Today, a group that operates advice tables in the lobbies of family court in the city. Her group sees one spillover effect: Most of the people coming to her table for help these days are parents seeking custody or child support. Since assigned counsel are such a scarce resource, judges tend to allocate the lawyers to cases initiated by the government–such as charges of neglect or juvenile delinquency.

But that doesn’t mean that parents charged with child neglect are getting the legal help they need. Parents who can’t afford counsel in neglect cases have a right to have a lawyer appointed. But judges have wide discretion to determine who is actually eligible for the free service. As the number of available lawyers has decreased, some judges have been telling any parents who work–no matter how little they earn–to hire their own lawyer.

In New York’s court-assigned attorney shortage, much more is at stake than individuals’ legal rights. When parents don’t have lawyers in neglect cases, the child protective system itself breaks down, maintains Doug Nelson, president of the Annie E. Casey Foundation. “Parental rights and roles are not able to be clarified,” says Nelson, who is intimately familiar with the workings of ACS from his experience chairing the Special Child Welfare Advisory Panel that oversaw agency reform in 1999 and 2000. Without parents’ counsel, says Nelson, “there is less ability to hold an agency like ACS accountable to the people affected–parents whose children are at risk of removal.”

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A handful of the 29 or so lawyers active on the assigned counsel panel in Manhattan can occasionally be found in a room barely bigger than a broom closet, on the fifth floor of the airless Manhattan Family Court.

When parents charged with neglect or juveniles charged with delinquency come to court needing counsel, court officers go to this room first to shop the case. “Anyone want to pick up a ‘D?'” an officer calls out, seeking a lawyer willing to pick up a juvenile delinquency case. “Kid’s out,” she adds. The court officer knows that it’s easier to find a lawyer for a youngster paroled home than one in custody, because kids taken into detention must have their first hearing within three days–wreaking havoc on lawyers’ schedules.

Juveniles are usually represented by Legal Aid lawyers. When there are multiple defendants in a case, though, Legal Aid can represent only one kid; to work with more than one would be a conflict of interest. Judges try to assign 18b panel attorneys for the other defendants. But nowadays it’s so hard to find an 18b in time for these hearings that judges often ask Legal Aid to take the cases anyway.

This particular Monday, a lawyer agrees to take the case. “It’s luck of the draw,” shrugs Gary Schultz, a 15-year veteran of the assigned counsel panel.

In Manhattan, where the lawyer shortage is the most severe, poor parents whose children have been taken to foster care are told to return to court every few days until an attorney can be found. For working people, this is a significant burden; they lose pay and are at risk of losing their jobs.

Parents are entitled to a hearing, within three days of coming to court, to determine if the children need to be in foster care. This proceeding, known as a “1028 hearing,” is the judge’s first chance to hear the details of the alleged child neglect, assess the caseworker’s investigation and reason for removing the children, and get the parent’s side of the story.

If parents can’t get lawyers immediately, they have two options. They can agree to adjourn their cases, which means leaving their children in foster care. Or they can attempt to represent themselves.

At these hearings, attorneys for parents can cross-examine the caseworkers, point out holes in their testimony that might not be apparent to laypeople and also help the parents prepare their own testimony. But when parents proceed without lawyers, they often end up making decisions that are strategically disastrous. Not understanding the law, they easily end up damning themselves, even inadvertently confessing to neglect.

“An extremely high number of people are going through the system without legal representation,” says Gene Fastook, a Manhattan 18b lawyer who has represented parents in family court since 1990. “In some of the other courts, it’s possible to go pro se.” Housing court and small claims court, for instance, are designed for litigants without attorneys. But family court, with its technical rules of procedure and specialized jargon, is distinctly user-unfriendly. “Without the help of an attorney,” says Fastook, “people’s rights are being abridged.” Parents don’t have training in cross-examination or rules of evidence. And parents don’t know a judge’s quirks the way lawyers do, nor do parents tend to know what will impress judges and what will alienate them.

Other parents simply accede to court adjournments, returning to court every few days, or weeks, until a lawyer is available. In doing that, they lose precious time in which they could be working to resolve whatever issues led ACS to remove the children in the first place. “There’s a lot of important stuff that goes on in those first couple of weeks,” says Caroline Kearney of Legal Services of New York, which occasionally represents parents in family court. “There’s nobody there to tell people, ‘These are your rights.'”

For instance, says Kearney, if ACS charges the parents with using drugs and the parents deny it, a lawyer might advise the parents to delay the 1028 hearing for several weeks for random drug testing. This tactic gives parents a chance to prove their children would be safe at home. But it also relies on a completely counterintuitive idea: that delaying the hearing may in fact bring their kids home sooner. A lawyerless parent, anxious to get her children out of foster care quickly, isn’t likely to think that seeking postponement of a hearing is a smart thing.

Or, if ACS has placed the children in foster care with strangers, lawyers for the parents can propose relatives’ homes instead. Although parents can theoretically do this without attorneys, caseworkers don’t always take a parent’s suggestion seriously. Lawyers can ask the judge to order caseworkers to look into relatives, which holds more weight than parents asking on their own.

Kearney also says a number of parents aren’t getting visits with their children, at least not early on. For parents with newborns, the visits are a chance to start the bonding process. Older children, who know their parents, often want to visit because they miss them. Visits are also necessary for reunification, because parents and children who haven’t kept in contact are likely to find it difficult to once again live together as a family. Without lawyers, “there’s a gap before visiting gets set up,” explains Kearney.

In many cases, whether or not visits happen depends entirely on whether a child asks to see the parent. “If our client is dying to visit with their parent, then we are obviously going to assert that,” says Legal Aid attorney Ron Richter, who represents children in family court. “If the child’s on the fence, the parent’s at a significant disadvantage.”

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The lawyer shortage doesn’t only affect families when a case first comes into the system. Finding lawyers for parents whose children are already in foster care is difficult, too. Children have to wait much longer than they should to move into a lasting home, whether it’s back with their families or by undergoing adoption.

Even if a parent had lawyers at one time, an attorney doesn’t stay with a case indefinitely. Instead, lawyers assigned to represent parents on a neglect case typically work with them when the case goes to trial and then, if a judge finds a parent guilty of neglect, at the hearing to decide whether to place the children in foster care. If the judge opts for foster care, the length of placement is usually for up to 12 months. The lawyer’s job, however, ends the date the judge’s order is made.

At the end of 12 months, if ACS wants to keep the children in foster care–and it almost always does–the agency has to file a new petition asking for an “extension of placement.” Parents are also entitled to a lawyer for these petitions, but they are only rarely assigned one.

Take Lasalle (not her real name). She agreed to extensions of placement three years in a row–each time without a lawyer. Each year, ACS said it planned to return the children; each year, the agency never got around to it. Finally, Lasalle obtained a lawyer through Legal Services. That attorney demanded a court hearing and got the children home to her.

Or look at Alice’s two children, now 10 and 20, who entered foster care five years ago. (Alice–not her real name–died in April, shortly after being interviewed by City Limits.) Her older child lived at home with her, but her 10-year-old daughter, on medication for ADHD, was just moved to her fourth foster home in five years. Alice, who suffered from mental illness, said she was assigned a lawyer in 1998, when ACS first charged her with medical neglect for failing to seek treatment for an accidental burn her daughter suffered.

Alice didn’t remember exactly when her lawyer stopped representing her, but she knew she had no attorney when her daughter was moved from foster home number three, where the foster mother was teaching her how to read and how to tie her shoes, to foster home number four. The reason for the move was that other foster children entered the home, making it too crowded for Alice’s daughter to remain.

If Alice had had a lawyer during this time, that attorney could have intervened with the agency to keep her daughter in the third foster home, since she was doing well there.

Alice believed a lawyer during this period might have also worked behind the scenes to get the family reunited–an option she says the child’s lawyer opposed. “I would have asked if he could try to talk to the law guardian, to persuade her to give me a chance,” she said. At the time of her death, Alice was facing proceedings to terminate her parental rights and free her daughter for adoption.

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The last time assigned counsel got a raise was 1986. Still, for 10 years, the family court panel had more than enough lawyers to represent parents accused of neglect or children accused of delinquency.

But at some point in the late 1990s, lawyers simply no longer wanted to work in family court. “We were losing three people for every person that came in,” says Fastook. Some of the defectors were no longer content to make a maximum of $40 an hour during the boom years of the late 1990s, when 25-year-old attorneys fresh from law school were earning $125,000 a year at large firms. Fastook estimates that the pay was a “large factor” for one-third to one-half of the lawyers who left.

But low pay may be the least of it. In family court, ACS lawyers cast parents as the enemy, and children’s lawyers and even judges tend to pile on. Some judges live in constant fear of the tabloids calling for their heads should they return a child to a neglectful home. Meanwhile, ACS caseworkers have already made up their minds that the parents were neglectful–otherwise, they would not have brought charges. Overall, the mentality is to err on the side of safety, which means that close calls go against the parents.

“It’s you against the world,” says Brian Zimmerman, on the assigned counsel panel in Brooklyn where, he says, the lawyers are hindered by the anti-parent culture.

“This is the most demoralizing work I’ve ever done,” laments Jill Zuccardy, who represents battered women in family court. “These cases are brutal. You don’t win. You never win. The deck is stacked too heavily against the client.”

An unpleasant job became even rougher in the late 1990s, when ACS made a big push to move thousands of kids who had lingered in limbo for years out of foster care and into adoption. The number of petitions to terminate parental rights, thus freeing children for adoption, spiked from 3,925 in 1996 to 9,799 in 1997. The number remained similarly high through the end of the decade.

ACS or private foster care agencies typically file petitions to terminate parental rights when children have been in foster care for at least one year–sometimes significantly longer–and parents haven’t completed their drug programs, visited or worked toward getting the children back home. Unlike new neglect cases, where parents still have hope of ultimately reuniting with their children, parents facing termination of their rights are at a desperate juncture.

Children on the verge of being adopted are also in a bind, since no adoption can go through until their parents’ rights have been terminated. Until the adoption is finalized, youngsters have little normalcy, if only because they and their foster parents must continue to routinely meet with caseworkers.

But if lawyers are disinclined to take foster care cases in general, TPRs, as termination of parental rights cases are called, are anathema. It’s no exaggeration to say that no lawyer will represent them. “People became disgusted with the terminations,” says Fastook. “There’s nothing you can really do for these people in terminations,” he says, and lawyers were tired of feeling like they were leading “people to the slaughter.”

And so these cases can linger indefinitely. In one case currently pending in Manhattan, a 3-year-old boy has lived with his aunt for most of his life. His father, mentally ill and incarcerated for the foreseeable future, wants to contest the termination but no lawyer will take the case. The case has been adjourned for months in hopes that an attorney will agree to represent the father, while the toddler remains in a legal limbo.

There are signs that compensation might soon increase. This year, Governor George Pataki’s proposed budget included a pay hike for assigned counsel to $75 an hour.

But that’s easy for the governor to propose: As it stands now, the state foots the bill only for lawyers for juveniles. It’s cities and counties that pay for lawyers for adults, including parents in family court–localities that are already being crushed under obligations to help fund Medicaid and other costly state-run programs. New York City accounts for approximately two-thirds of all 18b expenditures in the state, says State Assemblywoman Helene Weinstein, who chairs the judiciary committee.

For the Pataki proposal to work, she says, the legislature will have to commit to funding it. “I’m optimistic that if we end up with a two-way budget agreement with the Senate, that there will be an 18b solution,” says Weinstein. The Assembly proposal, which includes creating a fund to reimburse localities for the cost of assigned counsel, will cost at least $60 million. On April 30, as City Limits went to press, the Senate and Assembly agreed to include the fund in their 2004 budget. It remains to be seen, now, whether the fund will survive Goveror Pataki’s promised veto of the budget deal.

Others who have studied family court say representation of parents won’t improve as long as the courts rely on solo practitioners who lack the resources of an organized group, such as Legal Services or Legal Aid. The Appellate Division First Department Committee on Representation of the Poor released a report in March 2001 “strongly” recommending that the government create an institutional provider such as Legal Aid to represent parents in family court.

The report also recommended improving the resources and support available to panel attorneys. That suggestion was implemented in May 2002, when the privately funded Center for Family Representation opened its doors. Lawyers “can call us and get assistance on a thorny problem,” says center executive director Sue Jacobs.

“We came into being as a consortium of family law professionals concerned with representation of parents,” says Jacobs. The center has started out by offering 18bs training on ACS policies. For example, ACS’ most recent guidelines for visits between parents and children recommend visits as frequently as once a week if appropriate. Many practitioners, however, still don’t know about the new rules. So judges keep ordering biweekly visits, with the lawyers’ consent.

Soon, the center itself will begin representing a handful of parents, in an effort to be a model for other lawyers. The plan, says Jacobs, is to provide parents with intensive social work support, including referrals to drug programs, counseling or whatever else is needed to get the children home as quickly as possible.

If this succeeds, Jacobs hopes Albany will be persuaded to allocate enough funds so that all parents can receive this type of social work through their lawyers. Another hope, says Legal Services’ Caroline Kearney, who is also a center board member, is that the organization will function as a spokesperson for parents in the media and legislature. Another, perhaps more modest aim, says Kearney, is that “parents will be able to work better with their lawyers” as a result `of the Center’s training of lawyers and outreach to parents.

They’re not out on a limb with their aspirations. The center has attracted a powerful constellation of allies, including the Casey Foundation–which gave a grant of $200,000–top officials from ACS and numerous jurists, including Chief Judge Judith Kaye. “They can add some momentum to the recognition that there’s something wrong with the representation of parents in family court,” says the Casey Foundation’s Nelson. “The existence of CFR,” he says, “will accelerate the reform of parental representation in New York.”