Thursday, December 28, 2017

Announcement of PDA Annual Conference Keynote Speakers

Hello Parental Defenders-

We are incredibly excited to announce that the keynote speakers for this year's Annual Conference will be Vivek Sankaran, J.D., and Christopher Church, J.D., M.S. The title of their presentation will be "Sparking a Revolution of Values: How Family Defense Lawyers Can Use Data, Stories, and Advocacy to Change the Child Welfare System's Approach to Families."

The work both Professor Sankaran and Mr. Church do to advance the cause of parental and family rights on a national scale is nothing short of inspiring. In order to give you an insight into the quality and tenor of their work, I'm attaching a link to an impressive article they recently co-authored, entitled "Easy Come, Easy Go: The Plight of Children who Spend Less Than 30 Days in Foster Care." You can find the article here. It explores the real and lasting harm inflicted on children who are removed from their parents for less than 30 days, while critically examining the data associated with these removals. The ultimate conclusion reached by Professor Sankaran and Mr. Church is that too many children are being subject to this extreme intervention, resulting in exposing those children to unnecessary harm.

Thoughtfully, Mr. Church has provided the following updated data demonstrating how Utah compares to national averages for short term foster care stays:

For children removed during 2016 FFY (Oct 1 2015 through Sept. 30, 2016),*
  • Just over 23K were discharged within 30 days of their removal, which is 9% of all children removed
    • In Utah, it was about 210 kids, which is 10% of all children removed in Utah (so slightly above the national rate)
  • Most of those kids (71.5%) were placed in an unfamiliar environment, with 19.3% placed in a congregate setting (shelter, group home, etc.)
    • In Utah, it was only 55% placed in an unfamiliar environment, with very little reliance on congregate settings
  • Nearly all (91%) of these children are discharged to a family member after their brief stay in care.  That is similarly true in Utah (81%).

There are a few counties that seem to have higher rates of short stayers (Cache at 18%, Uintah at 25%), but most are right in line with state rate (Salt Lake, e.g. at 11%). 

We strongly recommend you take an opportunity to review the full article. Having command of this data can help us all more clearly articulate arguments on our clients' behalves and be more effective advocates. 

Registration for the Annual Conference will open soon! Priority registration for those with current contracts will open on January 3, 2018, and General Registration will open on January 17, 2018. We look forward to seeing many of you in April!

*Data utilized in this article were made available by the National Data Archive on Child Abuse and Neglect (NDACAN), Cornell University, Ithaca NY; and have been used with permission. Data from the AFCARS dataset are originally collected by the state’s child welfare agency pursuant to federal reporting requirements. Staff at Fostering Court Improvement have analyzed the data and analyses are on file with them. Neither the collector of the original data, the funder, the Archive, Cornell University, or its agents or employees bear any responsibility for the analysis or interpretations.

Friday, November 3, 2017

ABA Center on Children and the Law: Case Summaries

Hello Parental Defenders-

For those of you who are not on the national parents' attorneys listserv that is sponsored by the ABA, it is fantastic resource. They recently sent out a document that contains summaries of 6 different cases from around the country that impact parental defense. I'm posting those summaries below for your convenience.

We appreciate the wonderful work you all do!

Kirstin Norman
Executive Director
Parental Defense Alliance of Utah
In re J.P., 223 Cal. Rptr. 3d 426 (Ct. App. 2017).

Juvenile court was required to appoint counsel for mother of dependent child in group home placement before hearing on petition for modification requesting reappointment of counsel, family reunification services, and extended and liberalized visits with child. Failure to ensure mother was represented deprived her of opportunities to challenge court’s orders and findings and created fundamental unfairness. Changed circumstances and benefit to child’s well-being strongly favored mother’s request, and counsel could have highlighted benefits to child.

In re Elijah C., 2017 WL 3431653 (Conn.).

Mother adequately briefed appellate claim challenging trial court’s finding she was unable to benefit from reunification services, because child welfare agency failed to provide services previously determined reasonable given mother’s cognitive deficits. However, evidence supported trial court’s determination she was unable to benefit from reunification efforts. While Americans with Disabilities Act (ADA) cannot be used as defense to termination of parental rights, ADA applies to reunification services and programs required to meet parents’ specialized needs.

In re A.D.L., 402 P.3d 1280 (Nev. 2017).

Trial court violated mother’s Fifth Amendment right against self-incrimination by terminating her parental rights because she refused to admit, as part of court-ordered case plan, that she intentionally, rather than accidentally, caused hot iron injury to child. Parent cannot be forced to admit to criminal act under threat of loss of parental rights.

In re Gabriella D., 2017 WL 4324959 (Tenn.).

Foster parents filed petition to terminate mother’s parental rights to three children and adopt them. Supreme court upheld juvenile court’s finding that although mother’s neglect resulted in one child’s severe abuse through malnourishment, mother cooperated with child welfare agency, completed all required tasks, reconnected with children, and children wished to remain with her. Terminating mother’s parental rights was therefore not in best interests of children.

In re E.R.W., 2017 WL 3879019 (Tex. Ct. App.).

As issue of first impression, state statute governing mandatory appointment of attorney ad litem for parent provides nonindigent parent with statutory right to representation by counsel in termination of parental rights proceeding. Nonindigent parent may challenge trial court’s termination of parental rights based on ineffective assistance of parent’s retained counsel.

In re P.F., 2017 WL 3668103 (Utah Ct. App.).

Child who was eligible for enrollment with Cherokee Nation but did not meet definition of “Indian child” at that time was properly placed with non-Indian foster family. When initial placement with foster family complies with Indian Child Welfare Act (ICWA), juvenile court can rely on child’s bond with foster family and potential trauma to child to find good cause necessary to deviate from ICWA’s placement preferences.

Wednesday, September 6, 2017

Please Update Your Membership Records!

Hello PDA Members-

It has come to our attention that some of you may not be receiving all of our email updates. These emails contain registration links to our training opportunities, those sponsored by the CIP, and all the other resources to which we want to make sure you have access. Please take a moment to update your membership records by going to our website,, and clicking the "Membership Login" button at the upper right hand side of the screen. While you are updating those records, please also take a moment to renew your membership. This does not cost you anything, as we do not presently charge any membership fees, and it should not impact whether or not you are receiving our emails. However, we would prefer to err on the side of caution to ensure our updates are reaching you in a timely fashion. As always, thank you for you're tireless and excellent work!

Wednesday, January 11, 2017

The Hidden Cost of Empathy: How to Address Secondary Trauma Stress in a Child Law Office | Section of Litigation / Children's Rights Litigation | Section of Litigation

Hello Parental Defenders:

Below is a link to an article recently published on the American Bar Association website regarding compassion fatigue, particularly in the realm of Child Welfare Law. We are aware of the great burden that your case loads can take on your well being. This article looks into the issue of Secondary Trauma Stress and proposes some useful tools for dealing with that stress.

The Hidden Cost of Empathy: How to Address Secondary Trauma Stress in a Child Law Office | Section of Litigation / Children's Rights Litigation | Section of Litigation

Friday, January 6, 2017

The Impact of 2 Recent Utah Supreme Court Cases on Parental Defenders

Hello Parental Defenders-
We are fortunate to have a guest post today by Board Member and PDA Treasurer Mark Tanner, and Chandler Tanner, his son. Together, Mark and Chandler form the firm Tanner & Tanner. For a more complete account of both of their extensive legal expertise, you can look here.

As many of you may be aware, the Supreme Court of Utah recently handed down opinions in two different cases regarding the right to representation in termination actions that bear a direct impact on the work you do every day. Mark and Chandler put together a summary of the decisions and their impact below.

 By: Mark Tanner and Chandler Tanner

Recently, the Utah Supreme Court ruled on two cases addressing the right to state-appointed counsel of an indigent parent in a parental rights termination proceeding. These cases were In re E.K.S., 2016 UT 15 (Utah 2016), and In re K.A.S., 2016 UT 55 (Utah 2016).


In re E.K.S. dealt with the appeal by a mother whose parental rights had been terminated by a Utah juvenile court as part of an adoption proceeding initiated by a private party. In re K.A.S. similarly dealt with the appeal of a father whose parental rights were being terminated as part of an adoption proceeding initiated by a private party, though the action was brought in Utah district court. In both cases, the parent whose rights were at jeopardy was denied state-appointed counsel at the trial level.

In In re K.A.S., which was filed in district court by the adoptive parents in September 2013, the indigent father was initially appointed counsel but later was denied counsel based on a county attorney’s opinion that state-appointed counsel was not available to the father because the termination case was brought in district court, rather than juvenile court.

In In re E.K.S., the adoptive parents initiated proceedings in October 2014 in juvenile court to terminate mother’s parental rights. The juvenile court judge denied court-appointed counsel to the mother. The judge based his ruling on Utah Code section 78A-6-1111(2), which earlier in 2014 had been amended by the Utah Legislature to state: “Counsel appointed by the court may not provide representation as court appointed counsel for a parent or legal guardian in any action initiated by, or in any proceeding to modify court orders in proceeding initiated by, a private party.”[i]

Both parents were represented by the same appellate attorney in their appeals, and the arguments presented in both appeals were similar, namely, that denying counsel to the parent had violated the parent’s federal constitutional right to due process and equal protection. (Other arguments presented in one or both cases included ineffective assistance of counsel and violation of state due process.) Finding that federal due process provided the necessary redress for the parent in both cases, the Court did not reach the other arguments.


The Utah Supreme Court reversed and remanded both cases, finding that in both cases the parent’s federal constitutional right to due process was violated by the denial of counsel. The Court’s rulings relied on the United States Supreme Court’s ruling in Lassiter v. Department of Social Services, 452 U.S. 18 (1981). In Lassiter v. Department of Social Services, a state social services department brought a parental rights’ termination action against a mother. Mother was denied counsel at the lower court proceedings and argued on appeal that the denial was a violation of her federal constitutional rights to due process because she was indigent. In addressing her argument, the Court declined to find that due process always required appointment of counsel in indigent parental rights’ termination cases. Instead, the Court set forth the following standard, now enshrined as the Lassiter analysis (which builds upon the familiar Mathews v. Eldridge test).[ii] To decide what is required by due process, a court must consider the private interests at stake, the state’s interest, and “the the risk that the procedures used will lead to erroneous decisions.”[iii] After weighing these three factors against each other, a court must “set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.”[iv]

While the Court held, after conducting its analysis, that Ms. Lassiter’s due process rights were not violated by denying her counsel, the Court also stated that “[i]f, in a given case, the parent's interests were at their strongest, the State's interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel.”[v]

After conducting the Lassiter analysis in In re K.A.S., the Utah Supreme Court determined that federal due process required appointment of counsel for the father, and those rights were in fact violated when counsel was denied. In reaching this conclusion, the Court observed that the state had a weak pecuniary interest in avoiding the cost of appointed counsel, as well as a shared interest with the father “in the welfare of the child” and arriving at an “accurate and just decision.”[vi] The Court found that the father’s interest was very strong, constituting a “fundamental liberty interest” protected by the United States Constitution and Utah public policy.[vii] The Court found it important that, contrary to Ms. Lassiter, who had demonstrated “few sparks of . . . interest” in her child,[viii] K.A.S.’s father had sought “for years ‘to contact or have contact with [K.A.S.] . . . .’”[ix]

In assessing the risk of error, the Utah Supreme Court found it to be significant, citing the facts that the father had initially been appointed counsel only to have counsel subsequently removed and that the father was incarcerated, which “led to significant communication difficulties and at times even [the father’s] inability to attend proceedings, either in person or telephonically.”[x]

Having completed its analysis, the Court concluded that the father’s right to due process had been violated by denying him counsel. “When balancing these interests in favor of appointing counsel against the State’s relatively weak, albeit legitimate, pecuniary interest in not appointing counsel, the equation clearly comes out in favor of appointing counsel. And when we add the significant risks of error to this balance, it becomes abundantly clear that the Eldridge factors favor a right to counsel in this case.”[xi]

The Utah Supreme Court only conducted the Lassiter analysis in In re K.A.S., instructing the lower court in In re E.K.S. to review the Court’s analysis for guidance on remand.[xii]


The rulings in In re K.A.S. and In re E.K.S. instruct courts, both district and juvenile, to conduct a Lassiter analysis in parental rights termination cases to determine whether federal due process requires the appointment of counsel for an indigent parent.[xiii]

The opinions are most remarkable, however, for this reason: while one might assume, as Associate Chief Justice Lee argued in his dissent in In re K.A.S., that the Lassiter presumption against the appointment of counsel means appointment of counsel should not be the regular outcome of a Lassiter analysis,[xiv] the majority in In re K.A.S. disagreed. They ruled that a court’s responsibility is to conduct the Lassiter analysis faithfully, and if the analysis supported appointing counsel, counsel should be appointed, no matter how frequently this outcome occurs.[xv] As the majority stated, “Lassiter nowhere implies that the effect of this presumption is that if courts regularly find a right to appointed counsel in parental-rights termination proceedings they are doing it wrong.”[xvi]

Furthermore, the majority seems to believe that a Lassiter analysis will generally lead to the conclusion that counsel does need to be appointed in parental rights termination cases to satisfy due process. While Associate Chief Justice Lee thought that the facts in In re K.A.S. amounted to a “garden-variety parental termination case,”[xvii] the majority determined appointed counsel was required by due process. The majority went on to state, “[I]t would not surprise us if the presumption against the right to appointed counsel in civil cases were overcome with greater frequency in parental-rights termination proceedings than in other contexts where the stakes are lower and the core issue in the proceedings is less complicated than whether to sever the parent-child relationship . . . .”[xviii]

In short, the anticipated impact of these recent rulings is that courts will conclude in most, if not all, parental rights termination cases, that an indigent parent should be appointed counsel to meet his or her rights to federal due process. This outcome is required by statute in state-initiated proceedings[xix] and seems to be the Utah Supreme Court’s anticipated outcome in privately-initiated proceedings, post-In re K.A.S.[xx]

Prior to the case coming down, members of the Utah Parental Defense Alliance had been meeting with Utah state legislators exploring the best resolution for the state’s parental defenders. These rulings from the Utah Supreme Court, however, negate the impact of those efforts. Obviously, the concern for the practitioner is a potential avalanche of new cases being assigned to represent indigent parents in private termination proceedings. The concern for counties will be the extra expense of increased contracts with practitioners.

In a follow-up article, we will explore the situation in which a district court or juvenile court were to conduct a Lassiter analysis and determine due process did not require the appointment of counsel. For now, we’ll simply state that such an outcome would likely lead to an appeal by the parent under federal equal protection or state equal protection and/or due process.

(Mark and Chandler are attorneys with Tanner & Tanner Law, LLC and represented the prospective adoptive parents in In re E.K.S.)

[i] This statute was amended earlier this year to permit a court to conduct the analysis required by federal due process.
[ii] 424 U. S. 319, 335 (1976).
[iii] 452 U.S. at 27.
[iv] Id.
[v] Id. at 31.
[vi] 2016 UT 55 at ¶ 27 (quoting Lassiter, 452 U.S. at 27).
[vii] 2016 UT 55 at ¶ 25 (quoting Utah Code § 62A-4a-201(1)(c)).
[viii] Lassiter, 452 U.S. at 32-33.
[ix] 2016 UT 55 at n. 10.
[x] 2016 UT 55 at ¶¶ 31 - 32. In Lassiter, the United States Supreme Court also identified the use of expert medical and psychiatric testimony as additional factors that may increase the risk of error. 452 U.S. at 30.
[xi] 2016 UT 55 at ¶ 35.
[xii] 2016 UT 56 at ¶ 24.
[xiii] 2016 UT 55 at ¶ 40; 2016 UT 56 at ¶ 25.
[xiv] Associate Chief Justice Lee argued that the majority’s opinion “turns . . . [the Lassiter] presumption on its head.” 2016 UT 55 at ¶ 48 (Lee, A.C.J. dissenting)
[xv] Id. at ¶ 36.
[xvi] Id. at ¶ 37.
[xvii] Id. at ¶ 71 (Lee, A.C.J. dissenting).
[xviii] Id. at ¶ 37.
[xix] Id. at n. 11; Utah Code section 78A-6-1111(1)(c).
[xx] Id. at n. 11.