Children Are Stuck In the Middle -- What Happens When There Are Not Enough Lawyers to Represent Parents in Hearings with the Child Welfare Agency

In Massachusetts there is a chronic problem of court appointed attorneys not being paid enough to sustain a pool flush with lawyers. Until 2005, court appointed attorneys were paid as little as $30 an hour for representation in a district court case in MA. (These rates remained stagnant for 9 years.) In MA, parents are guaranteed lawyers in certain hearings -- especially those in which they might lose custody of their children. If the state cannot provide attorneys for indigent parents, then what happens to the children?

In her article "The Price of Justice: In Light of Lavallee, What Should Massachusetts Courts Do When Attorneys Are Not Available to Represent Indigent Parents In Care and Protection Matters?" (32 N.E. J. on Crim. & Civ. Con. 111 (2006)), Trisha M. Anklam argues:

Children should not be the victims of a tug-of-war between the courts and the Legislature; unfortunately, that is what is happening today. For obvious child safety reasons, the court cannot merely dismiss care and protection proceedings if an attorney cannot be appointed pursuant to [the MA case requiring appointment]. This situation means that a judge's hands are tied.

Anklam's article is an interesting account of the options that judges have when faced with these issues. Ultimately, however, it is the children that really suffer when their parents -- the parents who may have been abusing them -- can not get representation. These children will languish in an un-settled in-between while the process for either helping to "fix" their home or to move them onto another home is paused. These children will remain in foster care (or other temporary placements) awaiting some sort of procedure to begin.

Parents have a strong constitutional right to custody of their children. Understandably, the state should not be able to undo this right without a fair amount of procedure. It is unacceptable for the state to create procedure that it cannot support -- and then to put the burden of this onto the families. If the a state's legislature deems parental representation mandatory in child welfare cases, then the state legislature should ensure that such representation exists. In Massachusetts, there clearly is not a pool of lawyers who are willing/able to represent these parents at such a comparatively low fee.

Although I tend to only side with children, this injustice deeply impacts both children and their parents. It is possible that parents should have full custody of their children and in the time that the court cannot find an attorney, that parent is losing some of the precious little time when their child is still a child. Further, by guaranteeing representation at these hearings when that representation does not exists, the legislature is effectively removing the parent's access to the hearings altogether. If the state is not going to provide representation -- and will thus hold off on the hearings -- then the parent is worse off than if the state just had the hearings without any guarantee to counsel.

Neither children, nor parents are well-served by this misorganization.