Decoupling Seattle Family Law and Divorce Blog

In the first three parts of this five-part series, I discussed 1) The fight between DSHS and Poca’s foster family; 2) Some vital questions the media is mostly ignoring on this case; and 3) Why DSHS and the Courts usually prefer reunification with biological parents.

Today, in part four, I offer an attorney’s perspective on dealing with DSHS.

As attorneys,  my law partner Katy Banahan and I have represented numerous clients in their dealings with DSHS, including foster parents facing the loss of their license, biological parents facing termination of their parental rights, and family members of biological parents who seek custody. While each of these representations is obviously different (and each case is unique), there are some things that all these cases have in common.

What I have personally observed is an over-burdened bureaucracy mostly trying to do its best with limited resources.  While I have not found the agency to retaliate in my cases, I have seen the agency make bad decisions, usually in response to a fear of getting sued for doing nothing.

I also think that like all large bureaucracies, there is a persistent tendency to choose a one solution and then rubber stamp it repeatedly.  This means that once any agency has decided upon a course of action, it’s often difficult to convince it to reevaluate its decision based on new information – even when that information is compelling.  The fact that DSHS is likely to be criticized whether it supports reunification in a particular case or opposes it just makes things more difficult for the children in such highly fluid situations. Plus, determining how soon, if ever, damaged parents can (adequately) get their act together is about about as easy as predicting NFL pre-season game scores.

If you are fighting DSHS – either as a foster parent or biological parent -be careful not to focus too acutely on how you are being treated by the system, or particular people in the case. Doing this tends to be seen as diverting attention from a more fact-based inquiry, and thus avoiding taking responsibility for any mistakes you yourself might have made. The courts strongly encourage accepting responsibility for one’s actions, and not simply blaming other people for why you are in the dilemma you are in – even when they may be somewhat at fault.

It’s of course true that various individuals may be racist, sexist, classist and/or just judgmentmal as all get out. Everyone involved tends to feel judged – and often you are judged.  Furthermore, different professionals (health care professionals, therapists, treatment providers, social workers, educators) will sometimes give you conflicting advice, making you feel like you’re judged as inadequate no matter what you do. This is incredibly frustrating, and goes on for months and months.  My best advice is:

Get over it.

(Really.)

It’s about the children, not about you.

Once you are involved in a dependency situation (where the state prosecutor is intervening, in court, in the raising of a child), there are numerous reports made by numerous professionals.  All these people have power over you. They are not always nice. They are not always fair. In order to prevail and get a good result from this system, it’s vitally important to stay focused on what you can do to improve your position vis a vis both DSHS and the court. If your attorney believes that someone in the process is grossly biased or unfair, then let him or her make the complaint for you.  This makes you look much better than complaining yourself. If your attorney tells you it’s not worth raising a stink over a perceived bias, he or she is probably right – even though it’s not very easy for you to hear.

Above all you need to convey to all professionals involved in the process that you are committed to 1) following through with all court orders and treatment directives (if any), and 2) putting the child first, even ahead of your feelings about how you’re being treated.

You probably know that having a good attorney is important to getting through this process. But how do you choose the right attorney to help get you through this maze? First, I strongly advise you to beware of any attorney who makes a point of sharing your outrage at the agency, and at how you are being treated, for four reasons:

1. Some attorneys get personally involved in their cases.  This feels good at first to potential clients, but often ends up clouding the judgment of the attorney.  It is possible – and desirable – to be totally committed to a case without becoming emotionally involved.
   
2. The more emotionally allied an attorney is with you, the less likely that attorney will offer you blunt, practical advice even when you don’t want to hear it. People often end up spending tens of thousands of dollars based on questionable advice, in large part because they feel that their attorney really feels their pain. Remember, we’re here to be your advocate, not your friend.
3. Even in cases that are in litigation, a good attorney will often try to work with the DSHS caseworkers (and therapists, and treatment providers, and reunification counselors, etc.) and not simply fight them every step of the way.  We do this because it works. Clients often question why their attorney is cordial, even friendly, with professionals who clearly judge the client harshly. But as they say, you attract more bees with honey than with vinegar.  Attorneys who show you just how outraged they are will often project that same sense of outrage to the caseworkers, opposing attorneys, therapists, and the Judge. This usually backfires.
4. Foster parents have very few legal rights in respect of the kids they are caring for.  The Washington Court of Appeals has said so more than once.  There are a few options (filing for non-parental custody, for example), but they are tough cases to win, and winning or losing that kind of court challenge usually means no more fostering for you.  Foster parents should think long and hard before trying to start this kind of case, and beware of attorneys who  seem to want to push you into such action. A balanced approach, taking into account the strength of your legal position and your ability to afford prolonged litigation, is often more appropriate.

Remember that having your attorney work with DSHS on some things doesn’t mean that he or she won’t fight hard on important issues and, if necessary, work to undercut the credibility of DSHS social workers at trial. It just means that a lawyer who can talk to the caseworkers in a productive way has more weapons in his or her arsenal, and can often reach a desired outcome without having to risk going to court.

Make sure you choose an experienced attorney who has a balanced approach to these difficult matters, and does not simply tell you what you want to hear in order to get hired on the case. That said, you should also be able to communicate with your attorney, and the attorney should listen, even when telling you difficult truths.

These cases generally take a long long time, and it is important to have a good ongoing relationship with your attorney in order to get the result that you want and your kid deserves.

Tomorrow, in the fifth and final part of this story, I will explain why all the media outcry on this case may not in the end help little girl Poca.

Written by Christopher Rama Rao, with help from Katy Banahan.