A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution. The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children. If the state seeks to interfere with the parent-child relationship, the Constitution mandates: (I) that the state prove parental unfitness, a standard defined by state laws, and (2) that the state follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised upon the belief that the interests of children are best served when children are in their parents' custody. For that reason, the state's evidence of parental unfitness must satisfy a high burden before the state may interfere with or permanently sever the parent-child relationship.
Attorneys who represent parents in child protective proceedings play a crucial role in safeguarding these liberty interests. This role manifests itself in many ways. Similar to criminal defense attorneys, parents' attorneys protect their clients from unjust accusations, ensure that their clients receive due process protections, and ensure that the system gives their clients the chance to take advantage of its protections. In situations where temporary removal occurs, advocacy by parents' counsel can expedite the safe reunification of the family by ensuring the prompt delivery of appropriate services to the family and by counseling parents about the ramifications of the choices they must make. If the parent is unable to care for the child, a parent's lawyer can serve the client by arranging for another temporary or permanent legal placement, such as a guardianship or an adoption, which will advance the parent's interests. In these and other situations, strong advocacy on behalf of parents furthers the best interests of children and improves outcomes for both children and their families.
The challenges confronting parents' attorneys are daunting. Parents involved in child welfare cases often face a host of seemingly insurmountable issues, which transcend child welfare, including poverty, substance abuse, mental illness, and domestic violence. Those problems can make it difficult for an attorney to earn the client's trust and develop a successful litigation strategy. The attorney must master complex federal and state child welfare laws and become familiar with related laws in areas such as adoption, guardianship, and special education. The attorney must also engage in cooperative problem-solving with a number of stakeholders, which can include the child protection authorities, the child's attorney or guardian ad /item (GAL), tribal representatives, CASA, and the court. But the attorney must always hold the client's interests paramount, which may necessitate formal and assertive courtroom advocacy. Too often, parents' attorneys must do all of this while receiving low compensation, handling high caseloads, and enduring criticism that their advocacy somehow harms their clients' children. These and other challenges make representing parents among the most difficult and important areas in which to practice law.
Publication Information & Recommended Citation
Sankaran, Vivek. "Representing Parents in Child Welfare Cases." In Child Welfare Law and Practice: Representing Children, Parents, and State Agencies in Abuse, Neglect, and Dependency Cases, edited by Donald N. Duquette, Ann M. Haralambie, and Vivek S. Sankaran, 767-816. 3rd ed. Denver, CO: Bradford Publishing Co., 2016.