DIFFICULT DECISIONS — GIVING ADVICE WE WOULDN’T WANT

Most of my writing here has focused on criminal law. Criminal defense however, is just part of my actual law practice. A lot of my work is in juvenile law, both delinquency (juveniles charged with criminal offenses) and child protection (cases wherein the state seeks to interference with parent-child relationships).

The most important and difficult part of practicing law in my opinion is counseling clients. Few cases go to trial. A lot of our work is counseling clients–educating and advising them on making choices. Some clients hire us because they’ve already decided that they want their day in court and want us to try a case. Most though hire us becuase they rightfully do not know the best thing to do. In civil cases the choice is often whether to offer or accept a settlement. In a criminal case the choices include whether to bond out or stay in jail, whether to accept a plea offer or go to trial and whether to maintain the right to silence or testify (or talk to police). In child protection cases there are choices at every level: to sustain or contest an order of temporary custody, to admit or try a petition (neglect/uncared for, abuse), to accept or refuse services and, most difficult, what to do when facing termination of parental rights.

The hardest part in advising clients is that I’m often tasked with giving advice that I myself have never needed and hopefully will never need for situations that I have not been in. I’ve never been charged with a crime and thus never had to decide whether to go to jail (I’ve written before why someone would choose to plead to a crime and go to jail rather than fight a case). Yet for nearly every criminal client we have to weigh a decision of giving up liberty and adding a criminal conviction. My advice is based on the evidence against my client, the possible defenses and the risk worse consequences if the offer is rejected. Although I can make a recommendation, the choice is always the clients

The thing about jail is that although it is a place few want to go, a sentence (other than a life sentence or death sentence) is finite. At the end of it you will get out. Child protection cases are different. Although DCF is in most circumstances required to work with a parent toward reunification after a child is removed from his or her care, there isn’t a set timeline. There are still processes available to address issues while a case is still pending. A termination of parental rights (TPR) case is different. A TPR is the complete severance of the parental relationship. A parent has no more choices over his or her child in that situation. Judicial determinations following a trial can be appealed but once the judgment is final, that’s it. Rarely can the parent legally regain parental rights (that does not necessarily mean the actual parent-child relationship is over, just the legal relationship, but for many cases it is). In a consent case–the parent willingly gives up his or her rights through an affidavit and approval by a judge–the decision is irrevocable. Upon termination the child may become legally adopted. In my experience no client discussion is more difficult–from a legal as well as an emotional standpoint–than the one in which we discuss giving up parental rights.

Why would someone agree to give up his parental rights rather than force the state to prove its ase at trial? In some cases it is because the parent simply does not have a relationship with the child or is not interested in continuing one. In others it’s because the parent enters an open adoption agreement. In such an agreement (which can be written or oral) the biological parent promises to willingly consent and the adoptive parents agree to allow the biological parent continuing contact with the child (parents have the right to make such decisions regarding children). These agreements are not through the court or even with DCF. The parties are the biological parents and the pre-adoptive parents. Adoptive parents are not parties in TPR cases (only the the parents, child, state and possibly other intervening relatives are). Such an agreement is enforceable not in juvenile court but in civil court as a common law contract action.

Last month I was scheduled for a two-day TPR trial. The pre-adoptive parents had offered an open adoption. My client at first was not open to the idea and we went to work to prepare for trial. As we prepared and reviewed the evidence and testimony that would likely come in, my client thought more about her case and importantly, more about the child, asking me about the open adoption and the TPR consent process. The meeting was long and difficult. The client had done well in addressing the issues that led to the case but more work had to be done. All I could do was explain the difficulty of the trial and the possible consequences either way and leave the choice to the client. A few days before the trial the client accepted the open adoption agreement and the other parent and counsel negotiated one with the adoptive parents as well. On what would have been the first day of evidence at trial, both parents consented. They said they decided it was no longer about them anymore–that they reached the decision because they thought it was best for their child. I can’t say they were “happy” with the decision because no one could be happy with something like that. But I think they knew they made the right decision for their family. I wish them the best of luck and think they will do well.

I can’t put myself in a client’s position. What I can do is put that client in a position to make a knowing, voluntary an intelligent decision to do what he or she thinks is right. It isn’t easy. It isn’t fun. Yet it is what my clients need me to do and why I’m here.