‘Just A Number’: Parents Who Face Losing Their Kids Say Court-Appointed Attorneys Don’t Do Enough

A Civil Beat review found that parents almost never win on appeal, and that the appellate court finds procedural flaws in half the cases.

Carlos Valdez of Hilo is still fighting for custody of his son. Photo: Cory Lum/Civil Beat/2022

One court-appointed lawyer representing a mother who faced the permanent loss of her children left it to her to file subpoenas for medical records. He said he was unable to obtain a police report that the mother, Sarah Coultas, later found by simply looking up her case on the court system’s online database.

Another attorney met his client, Nikki Alpichi, whose four children had been taken into foster custody, 10 minutes before a court hearing. He told her she had only one real option – agree to the state’s jurisdiction over her children, or the state would make it much harder on her. Now, almost a year later, her children are still in foster care and she wishes her lawyer had told her she could have opposed the state’s oversight.

“If I had hired someone willing to fight for me, I think my kids would be home,” Alpichi said.

Still another lawyer told his client he didn’t have an email address or phone number. The mother, Shana Logan, said she found his phone number on a court document anyway but it didn’t much matter – he rarely called back.

One father, Carlos Valdez, watched as his lawyer, standing before the judge, struggled to remember his name. After what seemed an eternity, but was probably more like 15 seconds, the judge came to the lawyer’s rescue by naming the client.

“Relying on these guys to talk for you is bullshit,” Valdez said. “You’re just a number.”

Kapolei Judiciary Complex.
Parents involved in the child welfare system are often appointed attorneys by the court. Cory Lum/Civil Beat/2022

Many parents, accused of abusing or neglecting their children, qualify for court-appointed attorneys, paid for by the state Judiciary, to protect their rights through the often long and arduous effort to regain custody. As individuals, court-appointed lawyers may be dedicated to their clients and skilled.

But a Civil Beat investigation found that the overall system often falls short of the rigorous defense that experts nationally consider the most effective in preserving those rights. In some jurisdictions, those principles form the basis for court-appointed defense in child welfare cases using a much different model than Hawaii’s.

Parents interviewed by Civil Beat told similar stories about their court-appointed attorneys. The lawyers were hard to reach and didn’t explain what was happening in court. They refused to take steps that the clients wanted, such as correcting what they believed to be inaccuracies in state child welfare reports, or raising points that might help exonerate them.

Instead, the parents say, the attorneys urged them to go along with whatever state Child Welfare Services wanted in the hopes that it would help them get back their children more quickly.

Many parents ended up in the system because of drug use, struggles with mental illness, homelessness, domestic violence or some combination. Many likely would have been deemed unfit parents with the most rigorous of defenses.

They are often not the most reliable of clients. And for obvious reasons, they are not happy about the state taking away their children, and may take it out on their attorneys.

The Judiciary declined a request for an interview for this story, but said in a prepared statement that it “ensures that all parents in these cases are provided with attorneys to protect their fundamental constitutional rights.”

Civil Beat reached out to more than a dozen court-appointed attorneys to get their side of the story. Four responded.

“All the attorneys that I come into contact with that are on contract, all do a very competent job,” said Jacob Delaplane, who’s worked as a court-appointed attorney since 2016. “You’re not just dealing with the bottom-of-the-barrel type of attorneys.”

Still, a Civil Beat analysis of 10 years of child welfare cases that reached the Hawaii Intermediate Court of Appeals buttressed some of the parents’ complaints and revealed several ways in which Hawaii’s system falls short of the tenets of a rigorous defense. Most of the cases got to the ICA when parents appealed a decision – most often termination of their rights – by a family court judge.

In half the appellate cases, the judges declined to consider an argument made by the parents’ attorney for one of two reasons, and sometimes both.

The parent’s attorney had failed to raise the point in family court by, for instance, making an objection or introducing evidence, which would have preserved the issue for an appeal.

Or the parent’s appellate attorney claimed an error had been made in the family court trial, but failed to make a coherent argument for why it was wrong by citing statutory authorities or other procedures required in appeals.

Almost all of these cases – more than 90% – resulted in the appeals court affirming the family court’s decision.

Told about these findings, Martin Guggenheim, a professor at NYU Law and a leading national expert on family defense, said it’s part of a depressing pattern that plays out in much, but not all, of the U.S.

“One thing is quite clear,” he wrote in an email. “People who can’t buy legal services most of the time get inadequate representation … The trial lawyer does very little. The appellate lawyer identifies potential issues not raised in the trial court. The appellate court deems them waived or unpreserved. And so it goes.”

Sarah Coultas silhouetted portrait. Sarah does not want her face visible and agreed to a silhouette image.
Sarah Coultas said her court-appointed attorney left it to her to subpoena her medical records and find a police report. Cory Lum/Civil Beat/2022

One issue may be how the lawyers are paid. The rate for court-appointed attorneys with contracts is $150 per case per month, with an annual maximum per case of $1,800.

Paying attorneys a flat rate – as opposed to an hourly amount – creates an incentive to do as little as possible, said Janet Sherwood, a California attorney with decades of experience in child welfare as a trial and appellate counsel, an advocate and a judge.

“The minute they do any work on the case, they’re shooting themselves in the foot,” she said.

Of course, the attorneys are still bound by professional standards. “It shouldn’t matter how much you’re being paid,” Sherwood said.

But lawyers are only human and need to make a living. And low pay does reflect how much society, and the legal profession, value the work, said Guggenheim, the NYU law professor. Family defense is generally not taught in law schools, unlike parallel specialties like working as a public defender, and has no organized bar that can speak up on issues related to their work.

Many drift into working as a court-appointed lawyer for reasons other than having a passion for it, Guggenheim said.

They “are paid a pathetic hourly rate,” he said. “It’s reflected in their work. I’ve seen many contract lawyers that couldn’t pick their client out of a lineup.”

Matthew Mannisto said he takes child welfare cases on Kauai when the courts reach out to him. He doesn’t have a contract – instead, he gets paid $60 per hour to handle the cases. He said he does it because few others are willing to. It’s certainly not for the money.

“I make more than that making copies” in his private practice, he said. “It’s really just pro bono … If I didn’t have a busy private practice I wouldn’t be able to afford to take these cases.”

Mannisto, one of the few court-appointed attorneys who has won cases on appeal in the past decade, said he motivates himself by getting personally attached to the cases and focusing on the parents.

The Story Told By Appellate Decisions

Considering the stakes – possible loss of a child forever – parents deserve a rigorous defense, according to federal and state court decisions, statutes and legal scholars.

Several national organizations and advocates have detailed what this looks like.

“As a trial attorney, you must preserve the record on appeal,” according to a publication by the Family Justice Initiative, making sure to take actions during family court proceedings that can form the foundation of an appeal. The initiative is a national collaborative of parents’ and children’s attorneys and researchers led by the American Bar Association.

That includes asking for a hearing when facts are in dispute, making clear objections, filing written motions and offering proof on the record about testimony and exhibits.

Civil Beat’s analysis of 10 years of child welfare cases on appeal, however, found many cases in which arguments were rejected because they had not been raised in family court. In these cases, parents and children are identified only by their initials and so could not be identified or reached for further comment.

In one case this year, the appellate court found, a father “has not indicated how his contention was preserved for appeal, and where in the record he preserved it, as required by” the court’s rules. “Father did not object, and this point is waived.”

(In this and other cases cited in this story, the parent was represented on appeal by court-appointed counsel, normally the same attorney who appeared in family court. But the Judiciary said confidentiality prohibits it from releasing the names of attorneys in family court.)

Court document clippings where lawyers failed to preserve issues for appeal by parents in in court appearances.
Excerpts from cases on appeal show instances of lawyers failing to preserve issues for parents by raising them below, in family court. 

FJI says in particular, parents’ attorneys should be ready to object to a finding by the court that the child welfare agency made a “reasonable effort” to reunite parents with their children, as required by federal law.

Yet in several cases, the Hawaii appellate court found that parents, usually through their attorneys, had failed to register just such objections.

In a case this year, the ICA found that the mother “waived her challenges to DHS’s reasonable efforts by not making timely requests for services, objecting to the family court’s findings of reasonable efforts, or otherwise raising the issue of insufficient services.”

In some of the cases where it waived issues that hadn’t been raised earlier, the ICA said that it could tell from a review of the record that the argument would not have gotten anywhere anyway.

Sherwood, who has also worked as a family court judge, said such verbiage can be intended to head off a parent’s argument that they were ineffectively assisted by the attorney. Yes, the court is saying, counsel failed to raise this argument, but it wouldn’t have made a difference anyway.

Appellate courts don’t like to open the door to ineffective counsel claims, Sherwood said, because the same argument could be made in many cases, bogging down court dockets.

Experts also have stressed the importance of parents’ attorneys advocating for them with the child welfare agency, making sure they are enrolled in the right programs or “service plans” to enable them to become better parents and not burdening them with those that are unnecessary.

Here again, the ICA cases cite examples where court-appointed attorneys fell short.

Janet Sherwood
Janet Sherwood said appeals courts don’t like to deal with claims of ineffective assistance of counsel and try to head them off. Courtesy: Janet Sherwood

In a 2014 case, for instance, the court found that, even though the state Department of Human Services had failed to set clear goals in service plans, the parents never raised the issue.

“Even assuming Mother and Father were somehow hampered in their ability to ask for assistance, they were represented by counsel who could have notified DHS on their behalf,” the court said.

The court several times rejected parents’ argument that they had not been effectively represented by their lawyers. But on two occasions, the judges agreed with parents that their lawyers failed them by not filing an appeal on time. In both cases, the court reviewed the case anyway to make sure the parent was not prejudiced by the attorney’s mistake and in essence affirmed the family court decision.

FJI and other experts stress the importance of attorneys being frank with parents about their likelihood of prevailing in an appeal.

Parents have a right to appeal. But those grounded on little more than a thin hope to head off the inevitable have consequences for all the parties. Children already traumatized by being taken from their parents are left in limbo for another nine or 10 months while the appeal is heard. Would-be adoptive parents also have to wait for a final resolution. And the biological parents keep hoping, with little reason, for a turnaround.

“The uncertainty for kids as to what their longterm life is going to be, for many kids and their caregivers is very anxiety-provoking,” Sherwood said.

Appeals also cost taxpayers money and take up court time.

And many of these cases seem doomed from the start.

Court document clippings where Attorneys made no discernible argument to back up a claim of error in in-court appearances.
Excerpts from appellate court cases show instances when judges found that attorneys had made no discernible argument on a point. 

The Intermediate Court of Appeals has repeatedly refused to consider points raised on appeal because, in essence, the lawyer has not made a coherent argument, citing points of authority and taking other steps required by appellate procedure.

In a 2013 case, the court even threatened a father’s attorney with sanctions for the failure. Although the father, through his attorney, said various factual and legal findings by the family court were wrong, “he provides no discernible argument with regard to them … Regardless, to the extent Father’s points can be discerned, they lack merit.”

But even though this father’s attorney was put on notice that she could be sanctioned for not complying with appellate rules, the ICA found essentially the same shortcoming in many later cases.

In September, for instance, the court wrote that “Father cites no evidence in the record supporting his factual assertion and no authority supporting his argument. We have found none.”

Overall, the appeals record of parents is dismal. Among 80 cases in the past 10 years, the appellate court vacated and remanded only seven family court decisions, a success rate of 9%.

Even this figure overstates a parents’ chances of winning on appeal with a court-appointed attorney. In one of the seven cases that was reversed, a father represented himself. In another, the mother had a private attorney.

And three of the seven cases involved the same narrow issue – parents whose court-appointed attorneys had been discharged for a time because the parents didn’t show up in court. The ICA was following the lead of a Hawaii Supreme Court decision finding that parents have the continuous right to an attorney from the time that state gets involved.

In only two of the 80 cases, in other words, did a court-appointed attorney win an appeal in a case not involving the issue of continuous representation by counsel.

Why Parents Rarely Prevail

Delaplane said court-appointed attorneys are obligated to file appeals if the parents want them.

“You have a lot of parents who are very angry,” he said. “They instruct you to file an appeal and argue that appeal.”

The problem, he said, is that by the time the state takes the drastic step of ending parental rights, the case against the parents is usually very strong.

The attorney comes up with an argument, but the results from those cases show “the appellate court just not buying it.”

Although some of these arguments are rejected by the appeals court because they weren’t raised at family court, Delaplane said, attorneys cannot be expected to foresee every possible grounds for an appeal.

“Hindsight is 20-20,” he said.

In California, Sherwood said, the child welfare system tries to avoid futile appeals by having the parent, after signing the notice of appeal, consult with a lawyer who specializes in them. This attorney might inform the parent that they have no appealable issues.

“It could get short-circuited,” Sherwood said.

On a national level, “Winning on appeal in these cases is uncommon and dramatically more so than in the criminal justice field,” said Guggenheim, the NYU law professor.

It’s partly the quality of the lawyers, he said. But he pointed to another reason – many appellate judges believe that the overriding goal is the best interests of the child. That leads to the conclusion that “if an illegality occurred but it’s not in the child’s best interest to consider it, then we’ll overlook it.”

While the child’s best interest is a laudable goal, it ignores the fact that parents have constitutional rights. If the same reasoning were applied in the criminal context, Guggenheim said – that the proper result is to send someone to prison even if rules were broken – “that’s lawlessness.”

Standards by organizations such as FJI stress that attorneys should communicate with parents, and not just in the chaotic atmosphere of the courthouse a few minutes before hearings.

Attorneys should ask for their clients’ opinions on strategy and case-planning. When possible, they should speed things up and not agree to unnecessary continuances to avoid the trauma of prolonged time in foster care. And they should take independent action, such as issuing subpoenas and making motions, instead of only reacting to the child welfare agency’s actions.

Parents who spoke to Civil Beat said their attorney’s actions often fell short.

Sarah Coultas, accused of physically abusing her teenage daughter, said she wanted a hearing right away, expecting that she could talk to the judge and clear everything up. She believed that her daughter had made up the story because she was unhappy about moving back to the mainland.

Instead, she said, her court-appointed attorney, Martin Bento, agreed to a continuance, saying he needed a few weeks for discovery.

Eight months later, Coultas still has not had an adjudication hearing in which a judge will decide whether the state should have custody of her teenager and a 4-year-old daughter. Meanwhile, her two daughters have been in the temporary foster custody of another adult daughter.

Sarah Coultas holds her phone with a photograph her daughter.
Sarah Coultas’ 4-year-old daughter has been in foster custody for eight months now. Cory Lum/Civil Beat/2022

Coultas said the attorney did not use information she sent him to rebut the state’s petition for foster custody, urging her instead to make a deal and stipulate to what Child Welfare Services wanted.

She said he declined to issue a subpoena for medical records, so she tried unsuccessfully to do it on her own. After he said he couldn’t get the police report from her case, she said she found it on the court system’s public online case management system, eCourt Kokua.

“He didn’t explain anything about anything,” she said.

Bento did not respond to an email seeking comment.

Ten Minutes To Make A Fateful Choice

Nikki Alpichi ended up at family court on Oahu when her daughter accused Alpichi’s partner of seven years of molesting her. Reasoning that she had failed to protect the girl from the abuse, CWS put her and three of Alpichi’s other children in the foster custody of her mother.

At a hearing two weeks later, Alpichi said she met her court-appointed attorney, Tae Chin Kim. He looked at her paperwork for a few minutes, she said. Without asking her any questions – like what she knew, if anything, about the alleged molestation – he advised her to go along with the state’s jurisdiction over her children. If she didn’t, CWS might not let her see her kids, she recalls him saying.

She had about 10 minutes to decide. “You have no time, you’re already going through so much anxiety and stress, you don’t know what’s to come at this hearing,” she said. “Now I look back at it as the dumbest thing I ever did.”

Several months later, she dipped into savings for a house to pay a private lawyer, who told her she should have fought the state taking custody. She now has unsupervised visits with the kids. But after doing all the required services, and testing negative for drugs and alcohol, she said, she’s still fighting to get them back.

“For any parent, my advice would be, find your own lawyer,” she said. The ones provided by the court “work hand-in-hand with CWS. They don’t give you options.”

Kim did not respond to an email seeking comment.

Carlos Valdez, accused of sexually abusing his son on overnight visits, said he couldn’t get his lawyer to raise points in court he believed would have undermined the case against him.

He said he discovered that the mother of his son had a social relationship with the CWS caseworker. He also found a medical report in which his son seemed to say that a mysterious “other dad” was the one who molested him.

But the court-appointed attorney, Aaron Chung, refused to file motions or take other steps to introduce that evidence into the record, Valdez said. (It was a different court-appointed lawyer who he said couldn’t remember Valdez’s name in court.)

“It just didn’t seem like he wanted to,” Valdez said.

Neither of his attorneys, he said, would correct what he believed to be erroneous statements made by the CWS caseworker.

Valdez waived attorney-client confidentiality to allow Chung to speak to Civil Beat about the case. Chung said he always believed strongly in Valdez’s innocence, but wanted to avoid an evidentiary hearing in family court because the standard of proof is the lowest possible, preponderance of evidence. Although they differed on strategy, Chung said that the resolution of Valdez’s CWS case is what he aimed for from the start. (Valdez is still fighting for custody in a separate proceeding.)

A Pattern Of Complaints

In 10 years of advocating for Hawaii parents, Marilyn Yamamoto says she’s heard the same complaints over and over, including from a survey she did of 50 Hawaii parents who had court-appointed attorneys.

Parents are told to stipulate to what CWS wants to get their children back faster and are not told that they can challenge the state’s intervention into their lives. They can’t get lawyers to return their calls. They get copies of court reports five minutes before a hearing, and are not informed that they can challenge the CWS caseworker’s allegations.

Lawyers also fail to help parents communicate with CWS caseworkers when the parents can’t get a response, she said.

Court-appointed attorneys should act independently of the child welfare agencies, national experts say, bringing on experts, investigators, social workers and the like.

“Regularly use experts when their opinion can help achieve the clients’ goals,” FJI states in one publication. “In many jurisdictions, failure to use experts is ineffective assistance of counsel.”

In late September, Civil Beat asked the Judiciary to provide figures on how much it spent on experts, investigators, social workers, paralegals and interpreters for parents in child welfare cases. The Judiciary said it was unable to determine those amounts in time for this story.

Delaplane, the court-appointed attorney, estimated that he would need an outside expert in fewer than 1% of his cases. After all, he said, the cases are investigated by police and CWS social workers. Relatives and neighbors of the accused provide information, and a guardian ad litem meets with the child every month.

“I could count on one hand from 2016 where I even thought that would be something useful or appropriate,” he said.

Kai Lawrence, who sometimes gets appointed by the courts to handle parents’ appeals, and also does private appeals, agrees that it’s rare to bring in an outside party like an expert or investigator.

“Either you foot the bill and hope to get reimbursed or file a motion asking for prior approval,” he said. “It’s time-consuming and takes money to do that motion. It’s just hard to justify doing the extra steps when you have (private) clients who are paying you.”

But, he added, “it does make a difference to have them.”

A Different Way Of Doing It

Other jurisdictions have moved to a different model for representing parents, including New York City, Philadelphia and Minnesota.

New York, starting in 2007, entered into contracts with three nonprofits for “interdisciplinary” parental defense. By 2019, nonprofit interdisciplinary law offices provided most of the legal representation for parents.

They include staff attorneys who appear in court, but also social workers, parent advocates, supervisors and, in some cases, experts on housing, immigration, education, public assistance and the other issues that parents must deal with.

Martin Guggenheim
NYU Law professor Martin Guggenheim says New York City’s move to a different kind of advocacy for parents led to children returned faster and safely. Courtesy: Martin Guggenheim

In a 2019 study comparing outcomes for parents represented by the interdisciplinary law firms versus the traditional court-appointed solo practitioner, “We found children get to go home much, much sooner, with absolutely no safety risk to them at all,” Guggenheim said. It also saved the city billions of dollars, he said.

A 2020 followup study looked into the reasons why.

It found that the lawyers were more aggressive than the traditional court-appointed counsel, known as “panel attorneys” – filing motions challenging foster placement, for instance, or pushing for more frequent and less restrictive visits with children. Panel attorneys may have done this verbally in court, but filing motions sped up and formalized the process, the study found.

The interdisciplinary law firms were able to develop institutional knowledge that a solo panel attorney could not hope for, and took steps such as making templates for court filings and the like.

In the old system, panel lawyers could ask for a social worker, but it was a cumbersome, time-consuming process that was rarely used. Social workers and parent workers on staff at the interdisciplinary law firms, by contrast, accompany parents to meetings with the child welfare agency.

Rather than relying on the child welfare agency’s service plans, the interdisciplinary firms challenged them to avoid unnecessary or duplicative services.

All in all, the new model was more adversarial, with attorneys acting independently in defending their clients’ rights – more like what would happen in criminal proceedings. Some in the child welfare system said it slowed down cases compared to the informal talks and settlements between parents’ counsel and government attorneys.

But Guggenheim points to the results. Before the city overhauled its legal representation, he said, 50,000 children were in foster care. Now it’s 7,000. The more assertive parents’ bar can’t take credit for all of that, he said – but it contributed.

Elsewhere, however, family courts continue to see themselves as problem solvers seeking buy-in from all parties rather than a battleground.

“They don’t see this as it is,” he said, “which is the potential for the destruction of a family and making sure rule of law is followed.”

This project is supported by the Fund for Investigative Journalism.

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