Being Client-Centered When Your Client’s Children Are in Foster Care

Your client’s liberty is threatened by a criminal charge. You want to suppress that search. You want to pressure the prosecutor so you can get that good deal. You want to beat that case. You do it by aggressively litigating, filing motions and writs, and seeking strategic continuances. The case languishes, to your client’s advantage. The investigating officer could quit the force. The complaining witness might get tired of being involved. The appellate court could throw out that confession. Your client’s life can get back to the way it was.

Meanwhile, your client’s children are being raised by strangers in foster care. They are getting older. Your client is missing out on their toddler years, or he is missing their childhood, or the children are reaching the fraught and delicate adolescent years when they will need more support than the foster care system is equipped to give them. Your client needs her children and is lost without them. The children need her and feel like she has abandoned them. While you were celebrating your strategic successes, your client’s children were slipping away. The time lost cannot be recovered. The damage cannot be undone.

One of the collateral consequences of involvement in the criminal justice system is parallel involvement in the often murky and slippery child welfare system. A parent gets arrested, and the Department gets a call. No one is available to care for the children because the parent is going to jail and no relative is close by or suitable. Now the clock is ticking. It can be extremely difficult to get children out of foster care, especially with a pending criminal charge. If the child stays out of the home for 15 months, the Department will likely file a motion to terminate parental rights and permanently separate your client from her child. If the children stay for only a short time, their connections to family, community, and culture are weakened. If they stay for only a single night, the trauma can have lifelong effect. 

Moreover, your standard advice to your client for the criminal case can unwittingly make things worse in her dependency case. Your client may not be able to refuse to take the witness stand, though she can refuse to give testimony that might implicate her in her criminal case, but it is perfectly legal for the court to hold her 5th Amendment invocation against her in the “civil” dependency case. There are as many ways in which a criminal case can interfere with a dependency case as there are unsorted papers on my desk as I type this. 

So there you are, a criminal defense attorney by training and profession. You are good at it. No one knows procedure better than you do; no one is better in front of a jury than you are; you are a whiz at cross-examining police officers and sympathetic victims alike. Your talent is dazzling, but if you put all that skill to use, your client suffers because her other case, the one you don’t talk much about, the one you only marginally understand, languishes to her detriment.
When a parent has lost children to foster care, he or she probably considers favorable resolution of that case to be more important than favorable resolution of the parallel criminal case. The potential prison sentence is measured not as time away from the world but as time away from the children. This is where it is vital to be client-centered. There are many definitions of client-centeredness. One that I like comes from the Knox County Public Defender website:
“Client-centered” representation means that the lawyer gives the client the power, ability, and the right to decide what direction he wants his case to take, after being given the information and counsel he needs. The lawyer attempts to understand her client’s situation from the client’s point of view, and respects that client’s right to choose the ultimate course of his case.

Another good definition is found in Rule 1.2 of the Rules of Professional Conduct, “A lawyer shall abide by a client’s decisions concerning the objectives of the representation….”

It is tempting for a defense attorney to think of a criminal case in terms of absolutes. A misdemeanor plea is better than a felony conviction. Probation is better than a jail sentence. Unsupervised probation is better than supervised probation. Dismissals are better than unsupervised probation. “If we put it off just a little longer, we may get a better result,” the lawyer tells his client. The clock ticks, the children get older, and the criminal lawyer is satisfied because his litigation skills are working.

He’s winning.

For the client who is trying to recover her children, it may be far more important to resolve a case quickly and in a way that helps her in her dependency case than to work harder and longer on the criminal case to get a “better” deal. As Knox County says, the lawyer should attempt to understand the situation from the client’s point of view and respect the client’s right to choose the ultimate course of her case. The client may not know that the criminal case is hindering her dependency case, and neither may the client’s criminal defense attorney. In situations like this, it is indispensable that the criminal defense attorney work together with the dependency defense attorney and the client to develop a parallel strategy, to make sure that all parties are working towards the client’s ultimate goal. The criminal defense attorney should attend the dependency hearings, and the dependency defense attorney should attend the criminal hearings. Each should consult with the other on key developments in the case. There should be no roadblocks to communication in the case, and no egos in the way of collaboration. The criminal defense attorney should know what the client needs in order to regain custody of her children, and the dependency defense attorney should know how he needs to adjust his strategy to avoid exposing the client to criminal penalties. Both need to work together under the direction of the client to resolve opposing interests.

If we are not in it to improve our clients’ lives on the clients’ terms, then we are simply in it for our own egos. These cases are too important to let those considerations get in the way of quality lawyering. It is natural for a person to see his or her chosen area of concentration as more important than other areas, for the criminal defense attorney to consider criminal defense to be the pinnacle of public interest law, and to consider winning that criminal case to be the brass ring. The client may not care so much about that brass ring, if striving for it gets in the way of rebuilding her family.