06 March 2008

Pro Se Parties In Parental Rights Cases

The Colorado Court of Appeals ruled today in a rather unexceptional case in which a Denver mother's parental rights were terminated after her live in boyfriend was arrested on an outstanding warrant and a welfare check suggested by his probation officer revealed drug paraphenalia and a substance which might have been methamphetamines but was never tested. Her choice of boyfriend also seriously hurt her case, as the Court upheld the ruling in part because "a man arrested in mother’s home at the time of the welfare check later pled guilty to possession of drug paraphernalia, and that mother’s boyfriend tested positive for drugs at least three times in early 2007."

Within a month, after some haggling and court action by the Department of Social Services, her two children had been placed in the temporary custody of their respective fathers. She lost her case in hearingings before a magistrate and a judge, a jury trial and on appeal. The entire process from the welfare check to the resolution of the appeal took about a year (due to an admirable Colorado procedural reform that puts termination of parental rights cases on a fast track).

There were also problems with the children showing up late to school and not having proper immunization records.

By itself, none of this is exceptional.

The Life Of A Marginal Pro Se Party

Patchy Legal Representation

What I find notable is that it appears that the mother was not represented by an attorney for the entire proceeding, had difficultly obtaining what representation she received from the court despite a low income, and that at some point "counsel had filed a motion to withdraw based on a conflict of interest, and there was some confusion whether counsel continued to represent mother." According to the Colorado Court of Appeals, we know the following about why this happened (citations omitted):

Mother did not ask for the appointment of counsel before the adjudicatory hearing, but only sought funds for the payment for transcripts and for an expert witness to testify at the hearing. She was not entitled to an expert at the adjudicatory stage of the proceeding.

The determination of indigency is within the trial court’s discretion, and before making its decision, the court may order the production of any documents or evidence it deems necessary. We conclude the court’s denial of mother’s first motion, filed April 24, 2007, is supported by the information that she submitted. It showed that she had a monthly income of $2000, which exceeded the eligibility guidelines for costs for indigent persons in civil actions.

Mother filed another motion for leave to proceed in forma pauperis on June 1, 2007, asserting that her monthly income had decreased to $1025. However, the court was unwilling to rely on her affidavit or testimony because she had filed several motions alleging her indigent status within a short period of time. The court therefore reserved ruling on mother’s motion and required her to submit documentation of the name, address, telephone number, and tax identification number of her employer, or a certified affidavit of her income for the last six months and tax returns for the last two years.

Mother filed a supplemental motion on June 15, 2007, asserting that she became unemployed after she requested the required documentation from her employer, and that she had missed work to attend the detention and adjudicatory hearings. But she provided copies of her 2005 and 2006 tax returns and her affidavit verifying that she was unemployed. On June 27, 2007, the court again denied mother’s motion to proceed in forma pauperis.

The record shows that mother obtained employment by August 2007, that the court conditionally granted her request for transcripts at state expense, and that on July 2, 2007, the chief judge of this court ordered the preparation of transcripts at state expense. However, mother was required to include the issue of reimbursement in her petition.

We also know that part of the evidence admitted at trial included eviction notices delivered to the Mother.

Suffice it to say, that affording an attorney to vigorously represent you in a high stakes case with short deadlines, that can take your children away from you forever, when you make $24,000 a year, or less, interrupted by period of unemployment, is dreadfully difficult.

Bumbling Through The Court System

The portions of the record recited by the Court of Appeals leave the question of when this woman had representation of counsel, and when she did not, less than clear, and the stylistic standards of legal writing intentionally make the distinction between what a party to a legal case does, and what that party's lawyer does ambiguous, because usually the distinction isn't relevant under the law. The matters raised on appeal, however, do show that her case, whoever was handling it, was handled rather poorly.

For example, the department expanded the scope of its complaint two days before the "adjudicatory hearing" to include the concerns that "the children were excessively late to school, that they had many unexcused absences, and that they were not up to date on their immunizations. The Mother objected, but the Court allowed the expansion of the case, and the appellate court affirmed that decision in part because "she did not request a continuance of the adjudicatory hearing."

Similarly, the court rejected her appeal on the grounds that "she did not receive all the discovery to which she was entitled" despite a court order that
"required the parties to complete discovery by a certain date and to share
information with each other" because "Mother admitted she never requested
documents from the People." She also attempted to use a discovery rule, Colorado Rule of Civil Procedure 16.2 that did not apply to her case.

In the same vein, her concerns about a dispositional report were not found to be a ground for an appeal because "mother did not file specific objections to the treatment plan, but only filed proposed questions for cross-examination of the preparer of the dispositional report."

Her request to delay a dispositional hearing was also denied.

On appeal, the Mother sought and was granted "leave to supplement her petition and the record on appeal." But, she didn't end up doing so.

No one can know for sure if the case would have come out differently if it was handled more competently by the Mother and/or her counsel.


Not Even Wrong

In all likelihood, this woman would have lost her children no matter what happened. Living with a convicted drug dealer and having drug paraphenalia around the house, while your children are patchy in their school attendance, and you yourself are economically marginal is not the sort of thing that judges and juries tolerate well. It is probably to her benefit that the powdery substance found in her home was not tested, as this may have protected her from going to prison for possession of illegal drugs, and even possession of counterfeit drugs can be criminal in some circumstances.

Also, believe it or not, the Department of Social Services does not make it a routine practice to take children away from parents simply out of spite.

Right For the Wrong Reasons

But, the actual reason that she lost the case as it actually played out also has a lot to do with a serious of gross procedural bumbles either by her representing herself, or by her attorney or attorneys, or by inconstant representation. Part of that inconstancy comes from setting a quite dire standard of indigency for obtaining financial assistance in her defense, despite the fact that her circumstances placed her among the working poor at best, and indicated through periods of unemployment and eviction, that her economic well being was marginal at best. There is also every reason to believe that financial pressure impaired her ability to be a good parent, and that the court case made her economic circumstances worse.

Thus, the Court of Appeals was probably right on the law in this case, and one understands the reluctance of the courts to be as aggressive in protecting parental rights of purportedly bad parents as they are in protecting the the rights of purported criminals. A bad parent is an ongoing serious threat to their child, and stands in the way of establishing permanency and a better environment for the child in the future. Aside from domestic relations cases, criminal defendants are unlikely to revictimize the same person in the future, the incident is done and over with and the issue is how to punish what has already been done.

Still Troubling

Still, reading between lines, I am troubled by the existing system, which tolerates decision making about the future of parent-child relationships based in part upon the incompetent bumbling around in the court systems of economically marginal pro se parents or partially represented prents who are ill equipped to reprsent themselves.

Poverty itself, standing alone, should be a qualification for welfare, rather than a ground upon which to terminate a parental rights. The kind of functioning in the court system that the Court of Appeals in today's decision expects of a pro se or only partially represented party to exhibit to avoid procedural defaults and penalties in the system is unrealistically high. The court system is simply not designed to provide meaningful justice in the absence of competent legal representation at every step of the process for all parties.

Likewise, guilt by association is troublingly important in a great many termination cases. Courts routinely penalize parents for failing to remove a significant other who is a bad influence from their life. This may be the right rule, but is a rule that deserves more legislative style deliberation than it has received, and should be the subject of more explicit warnings to parents at large if it is to be a rule that influences their lives.

When Should There Be A Right To Counsel

I do not believe that it is terribly important to have a right to counsel in every case, although in an ideal world this might be the better course. When only money is at stake, a party may be economically justified in not securing legal representation in a losing battle or a case with stakes too small to justify hiring a lawyer. Likewise, when a party is incompetently represented in a case involving only money, a legal malpractice action provides some recourse to a client who is hurt, without imposing conflicting duties upon an opposing private party to exercise restraint in pursuing their case. I also have not a great deal of sympathy in the rare high stakes cases where a big money dispute where someone who can easily afford a lawyer loses because they don't take the case seriously.

But, there is a constitutional right to representation in termination of parental rights cases such as this one (a large share of which involve economically marginal parents), just as there is in criminal defense cases where one cannot afford a lawyer, which can be squeezed in a suspect way, when it is hard in practice to obtain representation. Expecting someone who makes just $2,000 a year and has an unstable economic life to be able to afford to obtain paid counsel to represent them competently in a parental rights termination case is unrealistic.

Also, there is currently no constitutional right to representation in parental rights and parenting time cases, for example in the context of a divorce, where the parents are too indigent to easily afford counsel, despite the fact that the legal system is ill suited to handling these cases in the absence of counsel and despite the fact that difficult custody issues often fail to coincide with the resources to litigate them properly in the current system, something that is very expensive even for affluent parents.

The American Bar Association agrees with me on this point, and also identifies several other categories (e.g. eligibility for income support benefits) that are similarly problematic.

Other Problems In Custody Cases

Lack of counsel in contested custody cases isn't the only problem with the court system in custody and parental rights/termination cases, although the analysis above explains why so many divorces (upon which the courts have a monopoly) involve pro se parties despite the high stakes involved for the children and parents involved. While Colorado handles pro se parties in custody matters better than many states, as a result of a heavily in person court facilitation process early in divorce cases and a focus on alternative dispute resolution, it is still fundamentally not designed to be user friendly for people without lawyers.

The lack of guidance provided to those in the system by a vague "best interests of the child" standard plagues the system with uncertainty that provokes litigation. Even if there is complete agreement on the facts in a case, which are often awkward to present to a judge because almost everything is potentially relevant, the law does not provide an answer or even much practical guidance about what a court should do in a case.

The court system's usual rules are designed to do justice between parties at a leisurely pace based on something in the past that is done and over with based upon relatively clear legal rules, something that works fine in a personal injury case, a criminal case, or a breach of contract case between parties who no longer do business with each other. But, these rules are ill suited to forward looking custody determinations in which the needs of the children are constantly evolving making a once and for all resolution of the matter inpracticable. Courts are bad at making quick decisions and bad at predicting the future.

The Future

Sooner or later, I suspect, we are going to come to the conclusion that we need to start over from scratch in the area of custody and parental rights procedure.

While an adverarial process works for most areas of the law, I see the law moving towards a basically inquisitorial process, in which someone like a child and family investigator evalutes the parties and issues in context in the field, rather than a court room, at public expense in addition to advocates for both parents at state expense for the indigent.

Likewise, I see the process moving away from the decree model, where a decree has a measure of finality and post-decree modifications are seen as an exception to be limited, to the probate court guardianship and conservatorship model, in which continuing regular court supervision of the parties is the norm to be applied, with the reviews being basically pro forma in the mill run of cases.

And, I think that ultimately, the vacuous "best interests of the child" standard will be fleshed out with standards serving children's best interests that provide greater guidance in particular cases, such as interstate moves. For example, one such meta-rule that is evolving is what amounts to a presumption in favor of preserving the pre-separation status quo to the extent feasible, and a whole host of standards of conduct, such as an expectation that a parent not bad mouth the other parent in the presence of a child, is also evolving.

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