Justices Grapple With Issue of Right to Lawyers in Child Support Cases

It's all about the double dipping of federal funds.

WASHINGTON — Members of the Supreme Court appeared frustrated Wednesday during an argument about whether poor people facing jail time for failing to pay child support are entitled to court-appointed lawyers. It seemed that there were procedural and practical problems with almost every potential ruling.

“It’s a little difficult to write the opinion if you are to prevail,” JusticeAnthony M. Kennedy told a lawyer arguing that lawyers are not always required.

Justice Kennedy mused about what such an opinion might say. “There’s no absolute right,” he said. “But there might be in some other case, depending. We don’t give much help to the system that way.”

On the other hand, Justice Kennedy told the lawyer on the other side, “there are thousands of these hearings around the country.” A blanket ruling requiring the appointment of lawyers would mean, he said, that “we’re going to change the entire landscape of domestic relations proceedings.”

The case involved a South Carolina man, Michael D. Turner, who was repeatedly held in civil contempt and jailed for as much as a year at a time for not paying child support.

The point of civil contempt is coercion rather than punishment, and judges like to say that people held in such circumstances hold the keys to their own jail cells. All they have to do to be released is comply with the court’s order.

But Mr. Turner said he was too poor to pay what he owed, which turned his incarceration into pure punishment. He said a lawyer could have helped him convince the judge that jailing him in the circumstances was impermissible.

In a series of decisions starting with Gideon v. Wainwright in 1963, the Supreme Court has held that poor people facing the loss of liberty for crimes must be provided with lawyers. But those decisions were rooted in the text of the Sixth Amendment, which concerns only criminal proceedings.

A majority of states do provide lawyers to people in Mr. Turner’s situation, as a matter of state law. The question in the case argued Wednesday, Turner v. Rogers, No. 10-10, was whether court-appointed lawyers are required in civil contempt cases as a matter of the due process protections of the federal Constitution.

Seth P. Waxman, a lawyer for Mr. Turner, urged the justices to adopt a bright-line rule that anyone facing the loss of liberty should have a lawyer in light of what the Supreme Court has called “the awesome prospect of incarceration.”

Some of the justices seemed concerned about how broadly such a ruling might sweep. Justice Ruth Bader Ginsburg, for instance, asked about “alimony and palimony.”

Mr. Waxman said contempt proceedings in such cases would be covered.

Stephanos Bibas, a lawyer for the woman who had sought child support from Mr. Turner, Rebecca L. Rogers, added that a ruling for Mr. Turner would also apply to “tens of thousands of immigration and extradition cases.”

“We’re talking about reformulating rules in a huge number of states that probably affect hundreds of thousands of cases,” Mr. Bibas said.

Mr. Bibas cautioned the justices against disrupting the informality and effectiveness of child support proceedings in which neither side, he said, tends to be represented by a lawyer.

He added that requiring states to provide lawyers might cause them to decide not to pursue deadbeat parents at all. New Jersey, he said, had stopped trying to enforce child support orders through civil contempt after its Supreme Court recognized a right to counsel.

Justice Ginsburg questioned the wisdom of that financial calculation, noting that it costs money to lock people up, too.

The federal government urged the justices to take a middle ground. Appointing counsel, the government said in its brief, is “a sufficient, but not a necessary, means of satisfying due process in this case.”

It would also be enough, the brief said, to give someone facing jail in Mr. Turner’s circumstances “a meaningful opportunity to establish his present inability to pay, such as asking him to complete an understandable form seeking his financial information or asking him questions on the topic as necessary at a hearing.”

At the argument on Wednesday, Justice Elena Kagan told a lawyer for the government, Leondra R. Kruger, that the proposal was “remarkably anemic.”

“Apparently, your idea of the procedure is just to give the person a form,” Justice Kagan said.

Ms. Kruger responded that the government’s proposal also called for notice to the person facing jail, a hearing and a judicial finding that the person is indeed capable of paying.

Justice Antonin Scalia said he was frustrated by the government’s proposal for a different reason. The court, he said, had agreed to answer just the question of whether a lawyer must be appointed and not what other procedures might satisfy due process
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Original Parents

Normally, I try to refrain from posting emotionally charged pieces because they are biased against the child welfare system as a whole, calling for moritoria with pitch forks and torches.

But, this was such a well-written piece, I thought it only appropriate to honor the pending celebration of child abuse and neglect propaganda month.

I dedicate this to original parents, a term I prefer to apply to the individuals who cared for children before they were removed and placed in the child welfare system.

Using Language to Demote and Destroy the Family

"The word 'parents' means nothing to me" a friend observed. "Anyone who takes care of a child could be called 'parents'." How different this sounded from what I'd learned at home from my -- you guessed it -- parents. They were proud of being parents and they never would have questioned what the word "parents" meant. To be a parent implied a special relationship with a child that was born to you. It was not to be taken lightly. "Chairman Mao separated children and their parents in China and turned the children against their parents," my parents told us kids. The implication was that it was harmful and just plain wrong to separate parents and their children. It was against nature and against God.

So how has it happened that today people in the United States don't even know what the word "parent" means and feel it is not much different from the term "teacher" or "babysitter"? What about the other language that families use? Does the word "son" mean anything? The word "mother"? What about "grandfather" or "ancestor"?

How did it come about that in the United States, children of parents who have not been proven to be abusive are being removed from their homes and put into foster care? Not only might the forced separation itself be considered abusive, but by some estimates a child cared for by a non-related person is ten times more likely to be abused than a child in a natural family.

When foster or adoptive care providers abuse a child, even if there is proof the child is rarely removed from their care. In a recent example the true family of a girl named Kayla Allen tried to bring attention to the fact that she was being abused. Her grandmother risked her own freedom by kidnapping her granddaughter to prevent the abuse. There are police reports and pictures of numerous bruises all over Kayla's body. Kayla was returned to the abusive home and was later adopted by the woman whom she identified as abusing her. She finally made it out of that home in Onslow County, North Carolina Aug 24, 2003 dead at the age of 7 after being forced to drink pesticide. Her grandmother, who had promised Kayla never to let her be abused again, committed suicide.

People who foster or adopt a child are rarely referred to as unrelated care givers; Instead, they are called "parents". Maybe that's why so many people think that people who are paid to care for a child are entitled to care for, neglect or abuse the child any way they please. The real parents and family are relegated to the role of ex's even while their parental rights are still intact, by use of the demeaning terms "birth parents" or "biological parents". Prospective adopters are called "parents" before the rights of the real parents have even been terminated. The courts and even the media, which is supposed to be unbiased, frequently use this terminology which is so obviously slanted against the natural family.

One solution to foster care abuse that is promoted is to expand the undermanned "system". What about not removing children from their homes on the basis of poverty or of unsubstantiated reports of abuse in the first place?

Foster care and adoption is big business. There are monetary incentives at both the federal and state levels to get children in the system and to get them adopted. Adopters might be considered the new "welfare queens": They get far more in monthly subsidies, Medicaid, tax credits, social security benefits, training, counseling, clothing allowances and other benefits than natural families would ever be entitled to right up until the child is 18 (22 if the child stays in school). And adopters don't have to show a need.

Despite the health and safety risks, social workers are eager to remove children from their families and to sever the relationship between family members, especially to obtain young "adoptable" children from homes that don't have the means to hire a good lawyer.

A mother who requested she not be identified wrote: "The DHS workers have been bothering me since I brought the baby home from the hospital. First phone calls, then visits wanting to see how things are going, wanting me to sign releases for my medical records because my health is a 'concern' to them with children so young. They tell me placing the children with families might be best for them since right now I am not able to work because of my operation. I had an operation I wasn't like told I am something contagious or anything!"

Some people say that because of the likelihood of abuse in foster care, the children in foster care need to be provided a permanent situation right away. For permanency, there is the 00004000 option of helping the family resolve issues if there are any and then returning the children to their parents or some other relative. If there truly is no family member to care for them, a friend might be willing to become a permanent guardian and be kind enough to allow the child to keep her identity and keep the memory of her family alive for her.

But, as a result of monetary incentives, permanency now means designating children "orphans" in the interest of finding them adopters. When adopters can't be found, the "orphans" stay on in foster care.

Social workers and the legal system delay returning children to their parents so they can make the argument that the family bond has been lost. Even when a parent is proven fit in every other way, the courts still do not consider that this bond, if lost at all, might quickly be regained simply by allowing family members to spend time together.

Told that if they only love this child enough, they will be the only "parents" he/she will ever need or want, adopters frequently minimize the child's very real loss or even make disparaging remarks about his/her natural family. If a child doesn't agree to being adopted, there are psychologists available to convince him that he does want to be adopted. Even law guardians, who are supposed to protect the child's interest in court, are being trained to convince kids they want to be adopted. Children learn to "play the game". Sometimes they make a few extra bucks appearing on commercials or at conventions promoting adoption.

Despite all the promotion, older child adoptions are exceedingly rare, and when they do occur, they frequently fail, with the child returned to foster care or emancipated before age 18. Even children adopted at younger ages may be emancipated early. Thirty-four-year-old Teresa Tryon, who was adopted at 4 years old wrote: "I was emancipated at the age of 15. My adopters basically forgot I existed and I left home at 13 and when they found me at 15 I was already in my own apartment and job."

On a message board for so-called "Orphans", someone wrote: "Isn't it amazing how many of us have spent the time in the system just waiting until we were old enough to return to our families?"

The words "mother", "father", "parents" and "family" used to have meaning in our society. Chairman Mao would be impressed if he saw how language is used to separate families in the United States today. Next time you see a news report about a "birth" father, mother or grandmother going to court to keep their child, try thinking of them as the real father, mother or grandmother. Think of the prospective adopters as people who are actively trying to tear family apart. If parents are not proven to be unfit, there is no reason to take their children.

Laurie Frisch

Marion, IA

"Protecting the Rights of Mothers and Natural Families"

Author Information

Laurie Frisch

Monday, March 22nd, 2010

The emotions you feel at this very moment is what keeps me in this battle to end fraud in child welfare.

Thank you Laurie.