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

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.
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 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).

Background

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.

Ruling

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]

Implications

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.)

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^[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.

Selling a Theme- Follow-up from Professor Gerdy's PDA presentation

Hello All-

Greetings once again from your Executive Director! For those of you who were able to attend the Appellate Practice Workshop in October, you may remember Professor Gerdy touching on the subject of selling a theme to increase the persuasiveness of the narrative in appellate briefs. An interesting and spirited discussion ensued about whether judges (particularly in Utah, but higher court judges in general) appreciate that kind of emotional appeal or cleverness in a written brief. I recently came across something I thought many of you would find informative and interesting on this same topic.

Since teaching legal writing at the J, Reuban Clark Law School at BYU a few years ago, I've stayed plugged in to the world of legal academia, and developments in legal writing in particular. It is, not so secretly, a passion of mine. One of the ways I stay connected is by following the Facebook page of the Journal of the Association of Legal Writing Directors (JALWD). For those unfamiliar with this group, ALWD is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. Professor Gerdy is a past president of ALWD. Their Facebook page is a great way to get a condensed amount of information on a potentially verbose subject. Forcing members to tweet does limit them to 140 characters, after all!

Recently, the JALWD admin posted Justice Sotomayor's dissent on a denial of certiorari for a death penalty case as a stellar example of using emotional framing to strengthen the persuasiveness of the narrative. Contributors noted that the framing was more important than any use of particular words or phrasing, and didn't rely on hyperbole or overblown verbiage to sell an emotional point. For those interested in reading the opinion, it can be found here. It's basically a master class on how to successfully sell an emotional theme within the potentially stilted confines of a legal document. The first two pages is sufficient to get a feel for how Justice Sotomayor accomplishes setting the proper tone, so don't be put off by the page length!

We plan on having Professor Gerdy do a voice-over of the slides she presented and make it available as an online CLE opportunity for those unable to attend, so stay posted for that development. If anyone is interested in the slides without the voice-over, let me know and I will be happy to send them to you.

Best,

Kirstin Norman

PDA of Utah Annual Report Available

Our contract with the State requires that every year, the PDA compile an Annual Report and deliver it to the members of our Oversight Committee. For those of you interested in reading this year's report, you can find it here.

Greetings, PDA Members-

I wanted to provide you with a behind-the-scenes look at what your tireless board has been working on for the last few months. The blog has basically been radio silent since my appointment as the new Executive Director of the PDA, but that doesn't mean we haven't been busy! Actually, quite the opposite is true, and the blog meanwhile fell a bit by the wayside, for which I offer sincere apologies.

Firstly, I want thank our exiting Executive Director, Kate Hansen, for making this as seamless a transition as possible. Kate graciously stayed on to train me as her replacement, despite being much in demand in her private practice, and still provides guidance to the PDA as needed. She has been an incredible asset to the PDA for the last three years, and will be very much missed moving forward.

One of the last projects Kate was working on before handing the reins over to me was the Parent Video, a collaborative effort between the PDA and the Court Improvement Program. About a year ago, the Table of Six approved a budget of $10,000 for the production of a parent video project, to be spearheaded by Gabriella Archuleta of the Court Improvement Program and the PDA. After viewing similar videos produced in other jurisdictions, the PDA and the CIP determined that the videos with the most impact were the ones that featured parents telling their own stories and experiences, while offering suggestions on how to navigate the unfamiliar landscape of juvenile court.

After vetting several local production companies, the PDA and CIP hired Storyline Films to produce the parent video project. A basic script was drafted, with input from various members of the PDA, which was then circulated through the juvenile court judges for their input. The video was shot in July, with participants from every agency in the child welfare community providing cast members and support.

Judge Bazzelle was selected by the juvenile court judges to participate in the video. Her background in broadcast journalism quickly became evident, and made for some great sound bites.

Andy Weibe and his crew were incredible to work with. The quality of the footage they were able to capture was extraordinary.

Grant Dickinson represented parental defense attorneys in the video. He did a fantastic job, even if his demands for a personal trailer were a little high-handed.

The first day of filming was done at the Matheson Court House, and the second day was completed at the new DCFS building in Sandy. We had three parent volunteers share their stories of perseverance and ultimate success for the video: Christianna Dees, Dusty Pyper, and Stephanie Garff. These women were incredible. Their stories were vulnerable, eloquent, and uplifting by turns, and they truly provided the heart and soul of the video.

A near-final draft of the video was debuted at the recent Court Improvement Summit, which many of you attended. It was incredibly frustrating, but the video was not able to be shown in its entirety due to internet issues with the venue. However, the final video will be completed by the end of September. At that point, the PDA will host it on its YouTube chanel, and provide a link to all of you. You will be able to share that link with your clients, who will be able to watch and re-watch the video whenever they wish to do so. We hope it will be a useful tool for all of you in your practice of parental defense.

As those of you who attended the CIP Summit may have noticed, PDA members presented on multiple topics, and were very well-received by their peers in the child welfare community. Neil Skousen and Brent Hall yet again presented on application of the ADA in child welfare cases, and they were by far one of the most popular break-out sessions of the Summit. Also, PDA members Erin Hill, Jason Richards, Ron Wilkinson and Josh Wilkinson presented on a panel concerning post-adoption agreements. Their expertise in a sensitive area of child welfare practice was much appreciated by attendees. 

As a final note, I also wanted to take this opportunity to encourage as many of you as possible to register for our upcoming multi-hour CLE event: the PDA's Appellate Practice Workshop. You can register for the workshop here. 

As you are all aware, the obstacles parental defenders face on appeal are daunting, and can seem insurmountable at times. At this event, participants will have the unique opportunity to pick the brain of Judge Christiansen of Utah Court of Appeals, as well as that of the Clerk of Court, Lisa Collins, for insight as to how we can be more effective, and ultimately, successful in our appellate attempts. There are also still plenty of spots open for anyone wishing to field a couple of moot type questions from Judge Christiansen to sharpen their oral appellate skills. Please email me if you're interested in that opportunity.  Further, Professor Kristin Gerdy, Director of the Rex E. Lee Advocacy Program at BYU, and mentor to BYU's traveling moot court team, will also be providing insight on how to make appellate briefs more persuasive on multiple levels. We have received so much support and enthusiasm from the staff of the Court of Appeals for this event; I truly believe they want to help us be more successful in our appellate practice. In fact, they have mentioned an interest in potentially making this a yearly-opportunity if sufficient interest is garnered at this event. Imagine what kind of useful tactical information we could accrue with that kind of ongoing input from the Court of Appeals! I'm certain that all of us could glean something useful from this CLE event. I look forward to seeing those of you who are already registered, and hope to see many more of you still. 

As always, don't hesitate to reach out to me or any of the other board members if you have any questions, concerns, or updates of which the PDA should be aware.  

Regards,

Kirstin Norman

Executive Director of the Parental Defense Alliance of Utah

The PDA has a new Executive Director!

The Parental Defense Alliance of Utah is pleased to announce that it has hired a new Executive Director.  Kirstin Norman received a J.D. from the J. Reuben Clark Law School at BYU in 2009 and following law school clerked for Commissioner Patton in the 4th District.  She has also practiced in family law and juvenile court in Utah County.

You might recognize Kirstin as she has assisted the PDA with its annual conferences and other projects.  We are delighted that she has joined us in our mission to provide support and assistance to the parental defense attorneys of Utah.  Welcome Kirstin!

Kirstin can be reached at kirstin@parentaldefense.org and 801-610-9127.

Congratulations to this year's award winners!

We are pleased to announce this years PDA award recipients.  These individuals represent what is best in parental defense and we are proud to recognize them.

Liza Jones
New Parental Defender

Jason Richards
Trial Attorney of the Year

Jacqueline Jensen
Appellate Advocate of the Year

Don Redd
Lifetime Achievement, Attorney of the Year

Loreli Riley
Special Service