Representation of Indigent Parents

The Bencher—May/June 2020

By Judge Felice Glennon Kerr

Representing indigent parents in child welfare cases is both challenging and rewarding. Child welfare cases for purposes of this article include dependency, abuse, and neglect custody cases brought by the State Division of Family Services or guardianship proceedings filed by a non-parent. Several members of Delaware’s Melson-Arsht American Inn of Court represent this population on a regular basis and also mentor attorneys who do not regularly practice family law but accept appointments to represent indigent parents.

The rights of parents in dependency, neglect proceedings have evolved over the years. In Lassiter v. Dep’t. of Social Services, 452 U.S. 18, 68 L.Ed. 2d 640, 101 S. Ct. 2153 (1981), the Supreme Court of the United States determined that indigent parents have the right to counsel in termination of parental rights proceedings brought by the state and acknowledge that the best practice is to appoint counsel for indigent parents at the earliest stage of dependency and neglect proceedings to protect their interests.

In 1997, the Delaware Family Court released the findings of a study, dubbed the Delaware Court Improvement Project, that recommended that the court appoint for indigent parents and children at the inception of child welfare proceedings. That same year, the U.S. Congress passed the Adoption and Safe Families Act of 1997 (ASFA), which mandated that state courts conduct a permanency hearing for any child in foster care for 12 months. One result of the implementation of the AFSA’s mandates was that parents had considerably less time to successfully complete case plans in child welfare proceedings, which increased the likelihood that their parental rights would be terminated.

In 2002, the Delaware Supreme Court in Brown v. Division of Family Services (DFS) and Watson v. Division of Family Services held that a notice of the right to counsel, at state expense, must accompany a Petition for Termination of Parental Rights initiated by DFS to protect the parents’ constitutional rights, 803 A.2d 948 (Del. 2002); 813 A.2d 1101 (Del. 2002). Prior to Brown, indigent parents were not required to be advised of their right to appointment of state-funded counsel until the termination hearing. If the parents failed to attend the hearing, they were not advised of their right to counsel and, more often than not, a petition to terminate their parental rights was granted.

Less than a year later, in Watson, the opportunity arose for the Delaware Supreme Court to decide whether indigent parents have a constitutional right to state-funded counsel in all dependency and neglect proceedings, 813 A.2d at 956-57. The Delaware Supreme Court answered the question in the affirmative. In doing so, the court recognized that if indigent parents are appointed counsel after the termination petition is filed, rather than at the start of the dependency and neglect proceedings, it is often too late and their rights are terminated. Id. at 1106. The Watson and Brown decisions increased the need for attorneys funded by the state to represent the impoverished parents in dependency and neglect proceedings brought by the state.

The Delaware Supreme Court took the right to counsel a step further in Walker v. Walker, 892 A.2d 1053 (Del. 2006), wherein the court addressed an indigent parent’s right to have counsel appointed in a termination of parental rights proceeding initiated by a private party without state involvement. In Walker, the child’s father was incarcerated, and the mother was unable to provide adequate care. The Family Court awarded guardianship of the child to an aunt over the parents’ objection. Subsequently, at the aunt’s request, the Family Court terminated the parents’ parental rights despite their objections and without representation. On appeal, the Delaware Supreme Court held that the Family Court must advise indigent parents of their right to request court-appointed counsel and must determine whether such counsel will be appointed in all termination proceedings whether initiated by the state or a private party. Id. at 1055.

While not actually deciding the issue, the Walker court expressed its view that indigent parents’ right to the appointment of counsel should be extended to privately initiated dependency and neglect proceedings at the outset. The court noted, “Father’s appeal did not raise the issue of right to counsel in a privately initiated dependency and neglect proceeding. Thus, the fact that our holding does not address that question should not be read as an indication that this court takes a different view of the right to counsel at that stage.” Id.

Consistent with Brown, Watson, and Walker, the Family Court appoints counsel to indigent parents at the early stages of most dependency and neglect proceedings and all termination proceedings. That practice, however, places a significant burden on the state. With only a few state-funded attorneys available and no funding available to hire more, the state must look to the Delaware Bar to fill the gap. Indigent parents are provided contract counsel only in dependency and neglect proceedings and termination proceedings initiated by DFS. The court relies on other Delaware attorneys to provide pro bono or low-cost legal representation in proceedings initiated by private parties.

As a specialty Inn, members of the Melson-Arsht Inn generally focus on family court cases. Some members of the Inn contract with the state to provide legal representation in dependency, neglect proceedings brought by the state. These attorneys dedicate a significant portion of their practice to representing indigent parents. According to one Inn member, Timothy Hitchings, Esquire, “When I began working on the indigent parents’ attorney contract, I was astonished by the number of children who are in the custody of the Division of Family Services at any given time. My previous experience had not prepared me for the volume of suffering that I would see.”

Representing impoverished parents can be challenging as many are homeless and unemployed. The transient nature of many of their clients leaves the contract attorneys with an inability to contact their clients to adequately prepare them and notify them of hearings. As noted by Hitchings, “Sadly, I am dismayed by many parents who have their children taken into DFS custody who did not keep in touch with their attorneys. It makes our role much less significant than it might otherwise be.” Other challenges include clients who have an inherent hostility toward the “system,” which can carry over to the state-provided contract attorney, and litigants suffering from serious mental illness, such as depression, who may not be able to comprehend the severity of their situation or obtain the motivation to overcome it.

In describing the clientele, Hitchings said, “Some are in the grip of addiction. Some suffer from mental illness. Some are unaware of how to care for children (often because they were not cared for themselves); some are victims of domestic violence. Most are poorly educated. All are impoverished, sometimes in spite of working full time.”

Despite these challenges, representing indigent parents can also be extremely rewarding. The legal system can be overwhelming, and attorneys who assist indigent parents gain satisfaction from educating their clients and guiding them through the process. Also, due to the significant obstacles these parents face, when there is a successful reunification with their children, the result proves exhilarating for both parent and attorney.

In addition to serving as contract attorneys, members of the Melson-Arsht Inn are readily available to serve as court-appointed counsel to parents in guardianship cases and to assist attorneys who do not practice family law. Inn members assist these attorneys with answers to questions, forms, and other advice in the course of representing their pro bono clients.

Delaware Family Court is always seeking to improve the quality of legal presentation of underprivileged groups and is currently working with the American Bar Association on parent attorney standards. A number of members of the Committee on Parent Attorney Standards, which is tasked with improving representation of impoverished parents, are also members and officers of the Melson-Arsht Inn.

Representation of indigent parents is an important service, and thankfully members of the Melson Arsht Inn, along with many other dedicated attorneys, take on the task of diligently assisting this vulnerable population.

Judge Felice Glennon Kerr is a judge on the Family Court for the State of Delaware. She is president of the Melson-Arsht American Inn of Court in Wilmington, Delaware.

© 2020 Judge Felice Glennon Kerr. This article was originally published in the May/June 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.