In the summer of 2015, Mary, 18, was living with her 1-year-old daughter and mother in DeSoto County, Mississippi, in suburbs just south of Memphis, Tennessee. A family friend had stolen money from them, and Mary and her mother could no longer make rent. With no available shelters in the area, they were soon homeless. Mary and her daughter bounced from place to place while the young mother sent out urgent requests for help on social media. “I would meet anyone who would help me, which was reckless, but…I would do damned near anything to help my daughter,” Mary told me.
Finally, Mary said, she felt she had no choice but to ask child welfare to take her daughter. (Mary’s name has been changed, because Mississippi law requires that information about child-welfare proceedings be kept confidential.)
Mary can’t remember how she got to the child-welfare office or much else about that day: “All I remember is my daughter in her car seat on the table, and saying, ‘Go ahead and take her. I will do whatever I’ve got to do to make sure she’s provided for, even if it’s not me.’”
After that, Mary was allowed to visit her daughter for just two hours every other week. Still, Mary told me, “I was led to believe it would be a pretty quick in-and-out process, a maximum of six months. My main fear—my massive, deep dark fear—was that my daughter would lose the realization that I was her mother.”
Instead of six months, her daughter stayed in the foster-care system for almost two years, even though Mary soon found a job and stable housing. Mary blamed her lack of legal representation for the delay. “If I would have had a lawyer from the beginning, this would have been a helluva lot shorter,” said Mary. “And if I had never gotten my lawyer, I would not have my daughter now.”
About 75 percent of poor parents in Mississippi walk into child-welfare proceedings without legal representation; it’s one of two states—Wisconsin is the other—where a majority of parents do not have a lawyer in these types of cases.
In court, parents face a lawyer for the state and a lawyer representing the interests of the child. But, with the future of their families on the line, parents are left to advocate for themselves in an adversarial system in which they have no training.
In a 1981 Supreme Court case, Lassiter v. Department of Social Services, a majority of justices ruled that a mother did not have a right to an attorney in court proceedings that would determine whether to terminate her legal standing as a parent. Since then, it has been largely left to the states to determine the rights of a parent in child-welfare cases. “It is beyond dispute that the state of parent representation remains in disarray over 35 years after the Supreme Court’s decision in Lassiter,” Vivek Sankaran, clinical professor of law at the University of Michigan Law School, wrote in a recently published paper in the Journal of Legislation.
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This lack of legal representation almost entirely affects poor parents. The federal government estimates that roughly 10 percent of all child-welfare removals are related to homelessness or inadequate housing. These numbers are almost certainly higher in Mississippi, the nation’s poorest state, where nearly one in three children and half of all black children live below the poverty line.
Families in Mississippi also have less access to government resources in times of crisis. In 2010, the Southern Poverty Law Center sued Mississippi for failing to provide community-based mental-health services for children. Joy Hogge, the executive director of Families as Allies, a Mississippi organization representing parents of children with mental illness, said she has seen poor parents try for years to find appropriate assistance for a child, only to be charged with neglect when something goes really wrong, like their child assaults another child.
Chris Gottlieb, professor at New York University’s Family Defense Clinic, told me, “It’s really a one-two punch. We blame parents for being poor, and then we don’t guarantee them a lawyer, even if they might lose their kids forever.”
Mississippi is by no means the only state where courts routinely fail to provide families with adequate due-process protection. More than 3 million parents in the US are subject to child-protective investigations annually, during which they have no right to an attorney. These probes, which can last as long as 90 days, lead to the removal of more than a quarter of a million children each year. Judges ostensibly determine whether removals are warranted, but they almost never decide against child-welfare agencies. One survey found that less than 4 percent of judges had ever ruled that a child-welfare agency had failed to make its legally mandated efforts to stabilize a family before taking away a child. As a result of these removals, an estimated one in nine black children and one in seven Native-American children will spend time in foster care by the time they turn 18, a situation Gottlieb calls the most overlooked civil-rights issue in our country today.
Even when lawyers are assigned during court proceedings, pay per client is often so low that lawyers may take on well over a hundred clients. In those instances, parents are lucky to have anything more than a cursory meeting with their attorney outside the courtroom. Making matters worse, lawyers assigned to represent parents frequently have no special training in child-welfare law.
As families wait for their cases to run their course, parents in many jurisdictions are guaranteed only one hour of visits with their child every two weeks, according to Mimi Laver, director of legal representation at the American Bar Association’s Center for Children and the Law. “It’s just a horrible thing what we do in our country to families living in poverty,” she said.
Still, the majority of states have determined that the integrity of the family deserves at least some kind of legal counsel, and a few states have invested in quality parent representation. In 2000, Washington State was spending three times more on lawyers representing its child-welfare system than on lawyers representing parents fighting that system. The state underwrote an additional $500,000 in parent representation, capping caseloads at 80 parents per lawyer. Afterward, reunifications increased—from 37 percent of cases to 56 percent.
Studies also suggest that when parents have a good lawyer, it reduces the amount of time children spend in foster care. The Center for Family Representation, which connects lawyers who specialize in child-welfare law with social workers and parent advocates in New York City, found that children whose parents they helped stayed in foster care a little over five months, compared to a citywide average of nearly a year.
Despite these potential benefits and the relatively low cost, Mississippi remains one of six states that has failed to enshrine in state law the right to an attorneyin any stage of child-welfare proceedings.
In 2012, a group of judges in Mississippi wanted to change the state’s youth-court landscape, and they approached Casey Family Programs, a private foundation based in Seattle that develops and finances child-welfare programs across the country. That year a court-ordered report found that Mississippi spent less per foster child than every state in the country but Nevada. At one point, DeSoto County, where Mary lived, was staffed with fewer than half the caseworkers for which they were slotted.
One of those who approached Casey Family Programs, Judge John Hudson, who now serves as Jurist in Residence for all youth courts in Mississippi, said his concerns had grown over the years as he’d learned more about the trauma inflicted on children by removing them from their homes. In 2007, a professor at MIT completed a largescale study that looked at “marginal” cases—cases in which an investigator might reasonably have left a child at home or taken a child into foster care—and found that later in life, children taken into foster care had significantly worse outcomes in areas of employment, homelessness, and teen pregnancy. Moreover, the longer children stay in foster care, the more likely they are to move from foster home to foster home, with worse and worse long-term outcomes. Hudson said he believed providing lawyers to parents was one way to guard against harmful removals and to keep foster stays as short as possible. “Science tells us that kids want to be at home with their parents, and we should do everything we can to make that a possibility,” he told me.
Even with guidance in the courtroom, Hudson said parents were almost never able to be effective advocates: “I would spend a great deal of time explaining to parents their rights in the case, like the right to call witnesses, the right to ask questions of those witnesses, the right to cross examine witnesses. I would go through a good deal of lecturing about the process so they could understand. But parents never really understood what questions to ask… I knew there had to be a better a way.”
Casey Family Programs was prepared to pay for a pilot parent-representation project, and in 2012, judges in four of Mississippi’s 82 counties agreed to give parent lawyers a try. Today, 12 counties provide lawyers to some poor parents in child-welfare proceedings, including Mississippi’s most populous counties.
From July 2015 through September 2016, Mary was one of those Mississippi parents without legal representation. When the judge told Mary she needed to find a job, she started cleaning a friend’s house twice a week for $800 a month. When the judge wanted Mary to have a more stable source of income, Mary found herself another job at Chik-fil-A. She met a man she later married and moved in with his parents across state lines in Memphis, because in DeSoto County, there’s little in the way of subsidized housing. But the judge wanted Mary to have a legal right to her home. So eventually, Mary and her husband moved into a place of their own.
Mary complied with other court mandates, including going to therapy, drug screenings, and parenting classes. When her first caseworker failed to return her calls, Mary called her every day. When the caseworker went to court and testified that Mary had failed to keep in touch, Mary asked for a replacement. Still, it seemed every time Mary went to court, the judge had new concerns.
In April 2016, Mary had transportation problems, and missed several visits with her daughter and several drug screenings. After that, the judge ruled that before Mary could bring her daughter home, she needed to purchase a car, an expense she couldn’t yet afford.
Mary wondered if the judge wouldn’t give her daughter back because the same judge had seen Mary brought to court a few years prior, when she was an angry adolescent struggling to cope with her father’s incarceration. Back then, she would get in fights with her sister, and family members would call the cops. She wondered, too, if it was because, at 14, she’d been diagnosed with bipolar disorder, or because, during the time that her daughter was in foster care, she’d become pregnant unintentionally, and when the pregnancy turned high risk, she’d no longer been able to work. After Mary gave birth to her second child, she had her tubes tied. Nonetheless, she worried that the judge held her pregnancy against her.
Mary told me it was “heart-wrenching” that the judge only seemed to see what she’d done wrong. In the courtroom, she said, “I’d have sweaty palms. My heart was racing. I’d feel nauseous. I’d listen to the judge talk, and the room would start spinning.” Mary tried to keep up hope, but when the judge changed the case goal from reunification to termination of parental rights, Mary said she was “past depression.” Sometimes after that, it was hard for her to get up in the morning.
During that time, Mary continued to visit her daughter for two hours, every other week, at a McDonald’s, supervised by her caseworker. When asked why she needed to have supervised visits, since supervision is required only if a parent is deemed a safety risk, Mary said she had no idea.
In 2016, Jennifer Morgan was the first lawyer hired by DeSoto County to represent poor parents in child-welfare proceedings. Half her salary was paid by Casey Family Programs, half by the county. Her work largely consists of problem solving around issues of poverty. She’ll help parents figure out how to pay for court-mandated therapy when they don’t have health insurance or find a drug-testing facility open late, so they don’t have to choose between their jobs and compulsory screenings. Often, Morgan is the only ally that parents have. “Most [parents] feel like everyone in that courtroom hates them or looks down on them,” she said. “Even if I don’t win any of my arguments, at least they were made.”
Shortly after Morgan took the job, she received a call from a child-protective supervisor who’d been involved in Mary’s case and felt that something had gone awry—and now the court was one month away from filing to take away Mary’s parental rights. “I always applauded that worker for reaching out and saying, ‘This is one you need to talk to immediately,’” said Morgan.
Morgan thought the biggest problems in Mary’s case were not whether Mary had a mental-health diagnosis or that she’d gotten pregnant but were bureaucratic. Mary had just been assigned a third caseworker. Her second worker, Morgan discovered, had done little to collect documentation to show the court Mary’s progress. Morgan helped gather and submit those documents. The fact that Mary had moved across state lines was another bureaucratic impediment. Even with legal assistance, the requirements of an interstate compact can often stall reunification by many months. Still, within a month, Morgan helped bring that drawn-out process to a close, and by Christmas, Mary was able to have weekend visits with her daughter in her own home.
Morgan also helped to clear up a failed drug test by showing that the test had come back positive because of the drugs Mary took to treat her bipolar disorder, not illegal substances. These were mundane tasks, but they added up to something critical: a more positive impression of Mary. “When all judges ever hear are the bad things,” said Morgan, “that is all they can see.” In April 2017, almost two years after Mary first brought her daughter to the child welfare office, she and her daughter were reunited. Mary’s daughter was one month shy of 3 years old.
Mary’s case is typical. Having a lawyer representing the parents’ interests increases the chances of keeping a family together and also enables children to find permanent homes more quickly, even when they don’t reunite with their parents. Advocates working to expand parent representation in Mississippi say they’ve found support across the political spectrum—including politicians on the religious right, who believe in the sanctity of the family, and those in the Tea Party, who distrust the government.
“A lot of people on the left are all about helping parents and helping kids, and they think that the people on the other side only care about money,” said André de Gruy, head of Mississippi’s Office of State Public Defender. “But the folks on the other side of the aisle are willing to spend money on something they think is good, and they think helping parents fight the government is good.”
De Gruy quoted Mississippi’s governor, Phil Bryant, who said, “If some government agent were coming to my house to take my kids, I’d want a lawyer there.” De Gruy added that in Mississippi, “Most parents might say, “I’d want a gun there,’ but it’s progress to have a lawyer.”
Still, Mississippi is a cash-strapped and deeply conservative state. So when Judge Hudson lobbies his colleagues, he said he focuses on the potential savings: “We present how having lawyers on the front end can help move children more quickly from foster care to a permanent placement.”
A preliminary study of Rankin County, one of the first Mississippi counties to provide some parents with lawyers, found that the average number of days from petition filing to case closure was shorter in cases with parent attorneys. This reduces the length of time children spend in foster homes. In Mississippi, this is especially important because the state has fewer than 1,500 licensed foster homes for the 5,000 children in custody.
Foster care is a very expensive government program, said Carlyn Hicks, the first parent attorney hired in Rankin County and now the director of the Mission First Legal Aid Office. “If we [reduce] that, then we can create an opportunity to focus on prevention, because these systems are not designed to raise children.”
But while arguments about future cost reductions can get politicians to the table, de Gruy said, it may not convince them to immediately invest the $2–3 million it would take to provide a lawyer to all poor parents in the state, when they have to balance budgets each year.
Nonetheless, additional funds are beginning to come in. In 2016, the Sun Herald, a newspaper on Mississippi’s Gulf Coast, published a six-part investigation uncovering instances in which the child-welfare system had ignored parents’ rights. The series included stories of a caseworker who had forged documents, families separated without clear cause, and two babies who were sexually abused and contracted gonorrhea while in foster care—wrongdoing that was never properly investigated. The next year state legislators passed a budget that included $200,000 for court-appointed lawyers for poor parents—the first time the state had ever paid for parent representation. The money was secured in a year that saw deep budget cuts across other state programs.
Right now, advocates are working to convince state legislators to increase their overall investment in parent representation to $500,000 in fiscal year 2018. A growing number of counties have also budgeted funds for parent representation, and the Kellogg Foundation has joined Casey Family Programs in investing in parent representation in the state. In 2018, there will be a parent lawyer working in counties that account for 47 percent of all child removals in the state—though even in these areas, there is still not enough lawyers for one to be appointed to every parent in need.
Mary is now 21, and trying to create the domestic stability that she wasn’t able to provide her daughter in the past. While we talk, Mary sets her 3-year-old daughter up on YouTube Kids, and makes sure to tell me that YouTube Kids is carefully monitored for appropriateness of content. When her pit bull wanders in, she says, “He’s an old man. He loves little kids and babies.” Mary has also maintained the bond between her daughter and her daughter’s foster parents. “I will not rip them from her because…that’s her second family. She still loves them very much, and I would not put her in a position to hurt her.”
Still Mary has also had to contend with the likelihood that her daughter’s time in foster care has affected her sense of security. Sometimes, Mary said, her daughter can be so good, but when she’s frustrated, “She has this thing that me and her foster parents call ‘autopilot mad.’ She gets so mad that she can’t calm herself down, even about the smallest thing.” At those times, she’ll curse like an adult and throw whatever is around her, Mary said. When Mary’s daughter was 2, she was put on medication for ADHD after her foster parents received a report from day care that she’d slammed a boy’s face into the ground.
Mary said, “Children do things different from us adults, and I wonder if my daughter’s behavioral issues are a direct result of the time she spent in foster care.”
