WA Among Minority of States that Don't Provide Attorneys in Parental Rights Cases
The Washington Supreme Court will determine whether foster children’s constitutional rights are violated when the State terminates parental rights without ensuring that the children are provided legal counsel. The majority of states provide children with attorneys. In the case before the Court, the State agreed the rights of the two plaintiffs in the case were violated when they were denied attorneys during the termination proceeding. However, the State denies children should have attorneys in all cases. The Supreme Court heard arguments in the case, In Re the Termination of D.R. & A.R., on Jan. 27.
Termination of parental rights proceedings are initiated when the State believes a parent cannot remedy his/her parental deficiencies. These proceedings can result in children being taken from their biological parents, as well as losing all contact with siblings, grandparents, and other extended family. A successful termination subjects a child to up to 18 years of foster care, putting the State in control of deciding where a child lives, what treatment he/she receives, and the majority of other decisions affecting that child's life. Alternatively, a failed termination might result in the child being returned to an unfit or unsafe home.
“This is perhaps the most invasive, life-altering proceeding a child can go through,” said Casey Trupin of Columbia Legal Services, the attorney for one of the children in the case. “Children have significant constitutional rights, and rights protected by state law. Children certainly have the most at stake in these proceedings. Only an attorney can ensure that those rights are protected and that courts keep children’s interests at the center of these proceedings.”
In Washington, children 12 and older are routinely provided attorneys in King County, and children 9 and older are provided attorneys in Benton-Franklin Counties. However, few other counties routinely appoint attorneys, which results in a pattern of inconsistent practices recently recognized by the Washington State Legislature. As many as 40 states provide attorneys to children of all ages in these proceedings, and a recent national report gave Washington State a grade of “D” for effective legal representation of children—ranking it the 8th worst in the nation.
While many children in Washington are provided a helpful lay guardian ad litem (GAL), or a volunteer Court Appointed Special Advocate (CASA), these guardians are not trained to protect the legal rights of a child and do not act as attorneys. In this case, the State agreed that the CASA was unable to protect the legal rights of either child. The State admitted the CASA could not protect D.R.’s interest in maintaining a relationship with her mother, and could not protect A.R.’s rights when he was involuntarily committed without a court order and given psychotropic medications.
“This case highlights what can go wrong when there is no attorney to represent the most powerless and voiceless party in the proceeding,” said Jim Theofelis, Executive Director of The Mockingbird Society, a leading advocacy organization for children and youth in foster care. Mockingbird filed an amicus brief to ensure that children in care get the same level of care, support, and resources as children from intact families.
In addition to the Mockingbird Society, the National Center for Youth Law and 14 other local and national advocacy groups filed amicus briefs in support of the children. The children’s appeal also is supported by their mother, T.R. No group filed a brief in support of the State’s position.
All four federal and state courts that have considered this issue in the past 30 years have found an absolute right to counsel for all children in termination cases. A 2008 study of the effectiveness of children’s attorneys found that children with attorneys achieved a significantly higher rate of permanency, without reducing the number of children who returned home. The study indicated that a state might be able to achieve overall cost savings if children are provided high quality legal representation.
Plaintiff child DR, 12, is represented by Columbia Legal Services attorneys Casey Trupin and Erin Shea McCann. Her brother, A.R., 11, is represented by Bonne Beavers of the Center for Justice in Spokane,m WA. Their mother, T.R., is represented by Jan Trasen of the Washington Appellate Project.
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