Flag on a stick

Flag on a stickOne of my law clinic colleagues did mental illness commitment hearings in her first job out of law school. She once told me how these hearings would start: the parties and lawyers went into a room in the hospital psychiatric ward, and the judge came in, put a little flag on a stick on the table, and that made it a courtroom. All it took was a flag on a stick.

In the courts where I practice, there’s a big flag on a stick. A couple of them, actually. And a state seal on the wall. The bench is usually elevated and imposing; there’s a podium at which to address the court; there are a couple of counsel tables; there’s a clerk and a jury box and a witness stand. Everything has the trappings of court. It all says, “This is serious business. This is where your case will be heard. This is where justice happens.” But you know what? It’s often an unruly mess, and the consequences are devastating.

In child protection law, the legal authorities we rely on are all written down. There are statutes, and court rules, and case law, a fair amount of which applies constitutional principles to this important area of law. Most of these authorities are readily decipherable. You read the stuff, and it looks like this is a law-driven, rule-driven business with a deep respect for the Constitution, as it should in a nation that has an alleged devotion to the rule of law. Yet the reality is a morass of lawlessness, hunches, ends justifying the means, poor advocacy, and questionable decision-making. As a teacher in a legal clinic, it’s frankly a bit awkward to teach students all about the law only to have them experience general lawlessness and chaos when they try to apply it. My students can make wonderful legal arguments, but too often they lose because various people – including those in charge – don’t like the result that the law demands. Too often, good legal arguments are met with head-scratching, puzzled looks, emotion-driven retorts, derision, or worse, but seldom are they met with anything that would pass for legal counter-argument.

If the system’s players believe that the law is insufficient to meet the purpose of protecting children while not needlessly destroying families, then they should work to get the law changed. Ignoring the law or coming up with tortured, illogical pseudo-legal analyses to avoid applying the law is not a permissible solution. And if you’re tempted to say that trial courts sometimes make mistakes, but that’s what appellate courts are there to catch, then you need to know that even the simplest appeal often takes a year to play out. During that year, a child might be bouncing around the foster care system and a parent may be burdened with complying with so-called “services” that have little to do with any actual problems the family might have.

The child protection system is a mess, including the legal side of it, and this is the system that decides the fates of children and parents every day of every week of every year. It makes decisions by the thousands, and I’m afraid that a lot of the decisions are wrong, and a lot of those that are right got that way by accident.

In its place, I’d gladly take a little makeshift courtroom with a table-top flag on a stick if the advocacy was good, the judge listened, everyone got heard, the law was followed, and a fair decision was rendered. You can keep your shiny trappings. I’ll take quality instead.

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A flea for justice

During an anti-slavery speech, Sojourner Truth was heckled by an old man, who yelled, “Old woman, do you think that your talk about slavery does any good? I don’t care any more for your talk than I do for the bite of a flea.”

“Perhaps not,” Truth replied, “But the Lord willing, I’ll keep you scratching.”

Keep them scratching.

I’d like to think that I’m a flea for justice, and that millions of others are, too. I know that each of us is rather small, really, while the degree of callous disregard for the people by the powerful is staggering. Injustice is a big dog. But I’ve had big dogs who’ve had flea problems, and they don’t appear to be all that happy about it. Those fleas keep them scratching.

I teach in a legal clinic devoted to child welfare law, and a huge injustice that’s on my mind is Michigan’s so-called “one parent doctrine.” It goes something like this: based on one parent being found by a court – either through a trial or by entering a plea – to have abused or neglected the child, the other parent faces severe burdens and legal sanctions. The non-adjudicated parent, even if they had nothing whatsoever to do with any abuse or neglect, and even if they stand ready, willing, and able to take custody of the child, can be forced to engage in a “treatment plan,” can have their child kept from their custody, and can have visits with the child limited to supervised visitation at the child welfare agency for one hour per week. This can happen even if the parent not only wasn’t ever proven to have been abusive or neglectful, but in cases where the parent wasn’t even accused of having done anything wrong. Once ordered to do a treatment plan, failure to adhere to it perfectly could eventually lead the child welfare agency to seek to terminate your parental rights. Forever. And they may well win that case in court.

So imagine that you’re a parent, and the child’s other parent has primary custody. Something happens when the child is with the other parent, and Children’s Protective Services (CPS) looks into it. Whatever happened is bad enough for them to remove the child from that parent. To your horror, your child isn’t placed with you. Why? Well, CPS doesn’t know much about you. True, you have no record with them or with the criminal justice system. But they tell the court that they don’t know much about you, whatever that means, and despite the fact that you demand custody, you’re not given the child. Instead, you’re given visits, and you’re given a treatment plan. No, there’s no evidence for why you even need treatment services, much less why you shouldn’t have custody of your child. Apparently, evidence doesn’t matter.

Is this unconstitutional? Absolutely. But that doesn’t make it easy to fix.

There’s a lot of ghastly stuff like this going on behind the scenes or in the shadows, and a lot also happens right in front of us. Yet if there’s one thing that we’re seeing more and more, it’s that with awareness, outrage, and persistence, we actually can change or fend off some pretty bad stuff. And with that, I’ll close and go back to biting that darn dog.