Child Law Practice Vol. 28 No. 6 August 2009 Helping Lawyers Help Kids ENGAGING FATHERS Addressing Ethical Issues in the Representation of Nonresident Fathers Jennifer L. Renne s a lawyer representing nonresi- appointed to represent nonresident 3. The putative father is named on Adent fathers in child welfare fathers by referencing the ABA the petition, but paternity has not cases, you deal with challenging Model Rules of Professional Con- been established. 1 ethical issues. For example: duct (MRs). 4. The father’s identity is unknown. When does your ethical and legal Appointment 5. There are multiple fathers for a obligation to your client begin sibling group (may a lawyer be Many courts around the country still and end? appointed to represent all the struggle with appointing qualified How should you represent a fathers?) counsel for all parents, and the rate father you haven’t heard from in of appointment for nonresident Under the first two circum- months? fathers is dramatically low. One stances, when the father’s identity Can you represent two fathers in study cites that nonresident parents and contact information is known, the same case? are appointed counsel approxi- or identity is known, but where- This article will focus on these mately half as often as other clients.2 abouts are not, you can be ap- and other ethical issues for lawyers Yet federally-supported research pointed. However, unless and until reveals that the participation and (Continued on page 86) involvement of nonresident fathers What’s Inside: About this Series improves outcomes. Even beyond 82 CASE LAW UPDATE This series gives attorneys and outcomes, children deserve the judges tools to better engage opportunity to form relationships 90 SUPREME COURT NEWS nonresident fathers in child welfare with their fathers. 91 LEGISLATIVE UPDATE A threshold ethical issue is cases. Article topics include: On the Benefits of a National whether mere appointment to a case 9 Putative Father Registry o Nonresident Fathers’ establishes a lawyer/client relation- Constitutional Rights (Nov. 08) ship. Sometimes the court will ap- 92 CONFERENCE CLIPS o9 Representing Nonresident point a lawyer to represent the Extending Foster Care to Age Fathers (Dec. 08) parent(s) at the preliminary hearing.3 21: Benefits, Costs, and Opportunities for States o9 Understanding Male Help- What are the ethical considerations Seeking Behavior (Jan. 08) for a lawyer in the following 94 IN PRACTICE circumstances: Racial Disparities in the Child o9 Involving Nonresident Fathers: Welfare System: Reversing Tips for Judges (Mar./Apr. 09) 1. The father’s identity and contact information, including address is Trends o9 Representing Incarcerated known, but the father is not 96 TECH TRENDS Fathers (June 09) present. Florida Turns to Handheld o9 Child Support (July 09) 2. The father’s identity is known, but Devices to Streamline Child o9 Ethical Considerations his whereabouts are unknown. Welfare Casework (this issue) Vol. 28 No. 6 ecuring ABA ChildE-mail: Law [email protected] Practice —www.childlawpractice.org u Internet: http://www.childlawpractice.org 81 ABA Child Law PRACTICE CASE LAW UPDATE www.childlawpractice.org West Virginia Statute Does Not Favor Traditional Families in ABA Child Law Practice (CLP) pro- Adoption Cases vides lawyers, judges and other profes- State v. Blake, No. 34618 (W. Va. Ct. App. 2009). sionals current information to enhance An infant was born with cocaine in efforts to place the child in a tradi- their knowledge and skills, and im- her system, prompting child abuse tional home. The court also consid- prove the decisions they make on be- half of children and families. Topics and neglect proceedings against the ered new evidence by the agency include: abuse and neglect, adoption, mother. After receiving custody of supporting the child’s removal be- foster care, termination of parental the child, the child welfare agency cause the foster parents’ home was rights, juvenile justice, and tort ac- placed her in the foster home of a over the capacity limit. tions involving children and families. same-sex couple that was approved The court therefore ordered the CLP is published monthly by the ABA to foster and adopt. removal of the child from the same- Center on Children and the Law, a The child’s guardian ad litem sex couple’s home and placement in program of the ABA’s Young Lawyers (GAL) moved to remove the child the home of a married couple for Division, 740 15th St., NW, 9th Fl., from the foster home, arguing it was possible adoption. The court ex- Washington, DC 20005-1022. harmful to the child to be raised in a plained that while the foster parents’ Director: Howard Davidson homosexual environment. The home may be the most appropriate Associate Director: Robert Horowitz agency and the foster parents ob- adoptive placement, “. it is unfair jected. Following a preliminary not to allow the child the option to CLP Staff: hearing, the trial court chose not to be adopted by a traditional family.” Editor & Designer: interfere with the foster placement The foster parents petitioned the Claire Sandt Chiamulera but reserved the right rule on the re- Supreme Court of Appeals of West 202/662-1724 moval motion and the GAL’s re- Virginia for a writ of prohibition and [email protected] quest after a full hearing. moved for an emergency stay of the Publications/Marketing Director: After the mother’s parental trial court’s removal order. The fos- Sally Small Inada rights were terminated, a ter parents claimed the trial court ex- 202/662-1739 [email protected] multidisciplinary team met to con- ceeded its authority when it re- sider the child’s future. The team moved the child from their home for Case Law Summaries: prepared a report recommending placement in a traditional home. Claire Sandt Chiamulera Scott Trowbridge that the case be transferred to the The appellate court granted the agency’s adoption unit and that the writ of prohibition. The agency Subscription Prices: child stay in the foster home during countered that removal was legally • $184 individual rate (payable by the adoption process. The report required because (1) the foster par- personal check only) also noted that it would be reluctant ents were not allowed to adopt as a • $219 institutional, agency, library, to remove the child from the only couple under the adoption statute, and law firm subscribers home she had known. The GAL was and (2) the number of children liv- Subscribe online: www.childlawpractice.org the only team member who objected ing in the foster parents’ home ex- Send check or money order, made payable to the: American Bar Association, 740 15th to the recommendations. ceeded the statutory limit. The Street, NW, Washington, DC 20005-1022 The agency’s permanency plan agency also said that a legislative stated that adoption was in the preference in the adoption statute Subscription Inquiries & child’s best interests and that the for adoption by married couples Address Changes: foster parents desired to adopt. At supported the removal. Call: Charles Teague, 202/662-1513 the permanency hearing, the GAL Regarding the first issue, the ap- E-mail: [email protected] again moved to remove the child pellate court explained that joint Copyright © 2009 American Bar from the foster home. After the par- adoption by unmarried parents was Association, ISSN 0887-896X ties presented their positions, the not at issue before the trial court in trial court held that it is in children’s the permanency hearings. The pur- The views expressed herein have not been best interests, when possible, to be pose of the permanency hearing was approved by the House of Delegates or the Board of Governors of the American Bar As- raised in traditional family setting to identify a placement that was in sociation, and accordingly, should not be consisting of a mother and a father. the child’s best interests and outline construed as representing the policy of the Nontraditional families, such as the a general course of action. It was American Bar Association. foster parents in this case, may only premature for the agency to recom- be considered appropriate to adopt mend a specific adoptive home at after the agency makes unsuccessful the permanency hearing and to 82 ABA Child Law Practice —www.childlawpractice.org Vol. 28 No. 6 move forward with selection and ents and the impact of removal. The appellate court concluded placement before the agency’s Regarding the agency’s claim that the child’s removal was not sup- adoption unit became involved. Fur- that moving the child to a more tra- ported by any evidence of improper ther, the propriety of joint adoption ditional home furthered a legislative care or management of the foster was not under consideration at the preference, the appellate court home. There was never any evi- permanency hearing. found no statutory support for this dence presented regarding the qual- Regarding the overcapacity is- claim. West Virginia’s adoption stat- ity of the child’s relationship with sue as a ground for removal, this is- ute lists three types of people who the foster parents and the adoption sue was moot because the foster may adopt: an unmarried person, a statute could not be read to create a parents reduced the number of chil- married couple jointly, and an indi- preference for adoption by a tradi- dren living in their home. However, vidual in marriage whose spouse tional family. The foster parents, the appellate court criticized the consents. It gives no priority to ei- who had care for the child for her agency for raising this issue at the ther type of person who seeks to first 11 months of life and formed a last minute, without first considering adopt and offers no preference for close bond with her, deserved the if the child’s best interests would be placements into “traditional homes.” opportunity to be considered, if not met through removal, that the child The appellate court stressed that the favored, as the prospective adoptive had been placed with the foster par- primary concern of courts in adop- home.