Regaining children unlikely Parents whose lawyers failed to file paperwork face a tough task, experienced attorneys say

Regaining children unlikely
Parents whose lawyers failed to file paperwork face a tough task, experienced attorneys say.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter

WILKES-BARRE – The 15 Luzerne County parents who lost appeals of the termination of their parental rights after their attorneys failed to file court papers will face a nearly insurmountable obstacle should they seek to get their children back, two attorneys who specialize in child welfare law said.

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The parents would first have to convince the state Superior Court to reinstate their appeal. The legal grounds for making that argument are extremely limited, making it unlikely they will succeed, the attorneys said.

Even if they do get their appeal reinstated, the chance they will prevail in getting the case overturned are slim, the attorneys said.

Since 2005, at least 53 parents have filed appeals of termination rulings entered in Luzerne County to the state Superior Court, according to a review of docket sheets. Not a single case was overturned by the court.

In 27 of the cases, the appellate court affirmed the trial judge’s order. Of the remaining 26 cases, 22 were dismissed because attorneys did not file a legal brief detailing the alleged errors the trial judge made. The Luzerne County Public Defender’s Office represented 15 of those 22 people.

Of the remaining four cases, two are pending, one was voluntarily withdrawn and one was dismissed on other grounds that are not specified.

Luzerne County Chief Public Defender Al Flora Jr. is continuing to investigate why attorneys in his office failed to file legal briefs in the 15 cases that were uncovered earlier this week by The Times Leader, and to determine if there is any legal recourse to get the appeals reinstated.

Should the appeals be restored, it would place the Superior Court in the difficult position of having to weigh the rights of the parents against what’s in the best interest of the children.

Attorney Martin Guggenheim, a professor at New York University, said he believes the parents would have virtually no chance of prevailing because, even if they can show an egregious violation of their rights, the court will give great deference to the impact its decision would have on the children involved.

“Because the child is seen as the innocent victim of someone else’s screw-up, the ordinary remedy to restore the harmed party to the place they were before the mistake now has to be considered in a broader context,” Guggenheim said. “Even if something can be done to fix this procedurally, you can’t overlook the reality that this will have a devastating impact on the parents’ chances of winning on the merits.”

Guggenheim is president of National Coalition for Child Protection Reform, a nonprofit group based in Virginia that advocates for changes in child welfare law to ensure parents’ and children’s rights are protected.

Guggenheim and Mike Pendolphi, a Forty Fort attorney who handles many child dependency cases, said termination of parental rights cases are extremely difficult to win on appeal because of the standard of review the court employs.

At the trial court phase, the judge makes a determination based on what is in the best interest of the child. An appellate court can only overturn the trial judge if it finds he or she committed a legal error, or if there is other evidence the judge somehow abused their discretion. Both are extremely high standards.

Pendolphi, who has specialized in family law for 19 years, said it’s rare, but he has occasionally prevailed in convincing the trial court to rule in favor of a parent in a termination case. He has never won an appeal of a termination case with the Superior Court, however.

Pendolphi said the 15 Luzerne County parents whose appeals were lost for failure to file legal briefs face an ever bigger challenge because of the age of the cases.

“Some of these appeals were dismissed years ago. Now you have children who have already been adopted out who have not seen their biological parents for years. You’re going to have to convince a trial court it’s in the best of a child to uproot him from that family and transfer him back to parents he doesn’t even know,” he said.

Pendolphi does not dispute that the best interests of the child should be considered. The problem, he said, is the system is often stacked against the parents in seeking reunification.

One of the biggest obstacles to reunification is the delay in obtaining the counseling, parenting classes or drug-and-alcohol services that are often required of parents, he said. That keeps the child out of the home, precluding the parents from developing a bond with them.

Often times a parent will complete one program, but Children and Youth will then determine the parent needs additional services. By the time parents obtain referrals and complete the other programs, the child may be in foster care for 15 of the past 22 months. That triggers a federal law that allows the agency to seek the termination of parental rights.

Attorney Mike Shucosky, director of family court for the county, acknowledged there are delays in getting parents into some treatment programs, particularly drug-and-alcohol, which can takes “weeks sometimes months,” he said.

While federal law mandates agencies seek to terminate rights once the child hits that 15-month mark, the agency can extend the deadline if it believes there are compelling reasons to do so, said Frank Castano, executive director of Children and Youth.

“Everyone is aware there is a clock and we need to follow federal law,” Castano said. “There are certain compelling reasons to extend it. If they are working diligently on whatever treatment that’s outlined in the service plan, that will be acknowledged and presented to the court.”

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.
http://www.timesleader.com/news/Regaining_children_unlikely_06-17-2010.html