A new Texas law and a bill being considered would strengthen the rights of parents in the child protection courts, allowing them greater access to court-appointed attorneys and the ability to attend court hearings virtually, even after the pandemic recedes.
House Bill 567, which became law Saturday, expands the circumstances under which low-income parents accused of child maltreatment are entitled to counsel. Senate Bill 690, which is still pending, would allow for virtual court appearances, which some legal experts say has made attending hearings easier for their clients and helped attorneys cover larger geographical regions.
Parents accused of child abuse or neglect face the permanent loss of custody rights if they fail to meet the court’s demands. They are required to follow detailed service and reunification plans, and must accept often-intrusive investigations into their homes and personal lives. They may have to take classes or seek mental health care. And any misstep along the way could increase the length of time they’re separated from their kids.
“The biggest thing to help parents navigate the process is to give them a quality attorney to help them make informed decisions and to ensure their voices are heard,” said Dylan Moench, legal representation director for the Supreme Court of Texas’ Commission for Children, Youth and Families. “There’s an immense power in quality representation.”
State law entitles indigent parents to court-appointed counsel when child protective services seeks to place their kids in foster care or to permanently terminate their parental rights — but Texas does not provide funding to pay for the mandate. As a result, the state’s 254 counties “vary widely in their ability to pay for (or even produce) the number of lawyers necessary to provide adequate representation,” according to a report from the nonprofits First Star Institute and Children’s Advocacy Institute.
House Bill 567, which goes into effect on Sept. 1, will provide attorneys for low-income parents whose households are being supervised by social workers, but still have custody of their kids. Authored by Rep. James Frank (R), HB 567 guarantees counsel for these parents, who have been directed by child welfare authorities to address safety issues that could lead to foster care, such as getting treatment for a substance use disorder or leaving a violent partner.
Under the new law, lawyers would be appointed before parents’ first court hearing, giving them a chance to prepare.
According to the U.S. Justice Department, appointing attorneys early in the life of a case lowers the chance of children entering out-of-home foster care. Once children are removed from home, robust representation for their parents typically means more frequent visits and greater chances for reunification.
During the first two weeks of a child welfare case — after social workers have investigated and initiated a court case but before the first hearing has been held — parents make crucial decisions like suggesting relatives who their children can stay with temporarily. Attorneys can help parents understand which family members are likely to be approved by the court and guide them, warning of potential missteps — such as fighting with social workers or failing to appear in court.
Judge Aurora Martinez Jones — who presides over hundreds of cases on the Family Drug Treatment Court and Child Protective Services dockets in the Travis County district court — described access to lawyers as central to a just system.
“It is extraordinarily unfair to expect a parent to navigate the child welfare system on their own without counsel,” Jones said.
The recently enacted legislation also expands other significant protections for parents, making it more difficult for child protective services to remove their children. The new law would redefine neglect, requiring a caregiver to show “blatant disregard for the consequences” of their actions while caring for a child. In line with growing calls to end the criminalization of poverty, the bill states that a parent being poor is not sufficient grounds to take their kids.
Following another national trend, HB 567 also prevents parents from losing their children solely due to use of marijuana, unless investigators find other safety concerns. It also protects parents who administer cannabis products as prescribed medicine to their children. Though cannabis is a well-established remedy for seizure disorders and other illnesses — and can legally be prescribed to children in Texas — parents whose children rely on it have risked intervention by child welfare officials.
Though HB 567 requires that counties offer additional legal resources to indigent parents, it does not provide funding. That leaves local jurisdictions already struggling to pay for current needs with an additional financial burden. Federal dollars can be used to pay for parents’ lawyers, but in small counties the administrative costs to draw down the funds can outweigh the financial benefits.
The pending Senate Bill 690 draws from a lesson learned in the pandemic — the time-saving value of video-conferencing. The bill would allow any party in a case to appear for court proceedings remotely, even after coronavirus restrictions are lifted.
In a March press conference, Texas judges described the lasting benefits of virtual court that they’ve discovered since courthouses shut down and hearings shifted online. Online hearings can help low-income parents make their court dates without having to take time off work or arrange for child care, the judges said. And without having to drive long distances to clients spread across the vast state, lawyers can attend court proceedings in multiple counties on the same day.
“Texas is a big state, and we have children placed all over the state. This made our world much smaller and our community much closer automatically,” Melissa DeGerolami, associate judge of the Child Protection Court of South Central Texas, said during the press briefing.
It has also given attorneys additional time to consult with clients and calmly prepare for court, DeGerolami said, “not last-minute conferring in the hallways of a courthouse.”
One bill that aimed to fund lawyers for kids in the child welfare system died in committee this month. Introduced by state Sen. Royce West (D), Senate Bill 1897 had a novel funding stream, relying on the creation of a new scratch lottery game.
Jimmy Vaughn, who grew up in Denton County’s foster care system, helped craft the legislation in hopes of preventing other kids from experiencing the courts the way he had to. Vaughn said he is undeterred by the legislative defeat and will continue to fight for greater representation for children in Texas. Despite entering the foster care system at age 7, Vaughn said he did not get a lawyer until he was 16.
Vaughn, who is now studying law himself at Texas Tech University School of Law, still recalls the terror of testifying before a judge as a small child and feeling all alone in the world. And he knows firsthand the transformative power of having a lawyer on your side. Before getting representation, he’d been living for months in a shelter designed to be temporary; with a lawyer on his case, he was swiftly moved into a family home where he was able to stay until he finished high school.
“That attorney stood between me and an unpredictable future in foster care,” Vaughn said.