Tuesday, October 6, 2009

The Civil Right to Counsel in Foreclosures, Termination of Parental Rights

The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures.  (I previously posted on this issue here.)  The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering look at this critical problem:

In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel.

In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on "subprime," "high cost" or "non-traditional" mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation.  In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented.

In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosures did not have counsel in 2008. 

The report argues that "[u]nless and until the foreclosure process and laws are simplified to the point where legal counsel is not necessary, each homeowner facing foreclosure should be provided with an opportunity to consult with a trained counselor and then to receive fuller representation by a lawyer where necessary to ensure just and fair proceedings."

Such a civil right to counsel may not be far off.  The Supreme Court yesterday took the exceedingly unusual step of asking the Texas Solicitor General for his views on a civil right to counsel case coming out of that state.  The case, Rhine v. Deaton, involves a biological mother's private custody dispute with temporary foster parents.  The Texas courts denied appointed counsel to the mother, and she filed for Supreme Court review.  The parties have filed their cert. briefs, and the Court invited the Texas SG to provide his views.

I posted an analysis of the case this summer, suggesting that the mother faces a major hurdle in Lassiter v. Department of Social Services, a 1981 case denying a right to counsel for a poor mother in similar circumstances.  The Court in that case used the three-factor procedural due process balancing test in Mathews v. Eldridge and weighed the balance against a newly discovered presumption against appointed counsel in cases where physical liberty is not at stake.  (A claimed right to counsel in foreclosure cases would face the same burden under Fourteenth Amendment Due Process.  Some litigants have seen success, however, using state constitutional provisions.  Rhine's case comes up under the Fourteenth Amendment.) 

M.L.B. v. S.L.J., a 1996 case involving a poor mother's ability to appeal an order terminating her parental rights, may have partially eroded Lassiter's foundations--or at least it may have given plaintiffs a new set of constitutional tools to work with.  The Court in that case held that the mother had a right under Equal Protection and Due Process to appeal the order, even though she couldn't pay the appellate fees.  Unlike LassiterM.L.B. thus wasn't tethered only to procedural due process.  It gives litigants much more to work with.  (As I argue here and here, it gives litigants very much more.)

The Court's consideration of Rhine suggests that it may be willing to reconsider the Lassiter analysis and its groundless presumption in light of M.L.B.  It's not clear what the Court seeks from the Texas SG, but it may be seeking more information on the procedural complexities in Texas termination-of-parental rights proceedings--information that goes directly to one of the Mathews factors and would be relevant to an M.L.B.-type analysis. 

This is one to watch.

SDS

http://lawprofessors.typepad.com/conlaw/2009/10/the-civil-right-to-counsel-in-foreclosures-deprivation-of-parental-rights.html

Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink

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Hello,

I am Davina Rhine, sister of Tracy Rhine, who is the mother who represented herself pro-say in Rhine vs. Deaton, and has the pending US Supreme Court Case, resulting in the courts pending reconsideration of Lassiter.

My sisters and I grew up in severe poverty and abuse, physical abuse (Vietnam Dad/Traumatized Mom).(One out of four families live under the poverty level in Texas, and one out of four children in the State go hungry, and here in Dallas, TX over 70% of the homeless are mothers and their children)

Tracy made bad choices after a really bad life was handed/beaten into her, however, when the state took Jazzlyn from my sister, and then deemed her fit, and by court order and a judges decree, the State ordered CPS in Dallas to return my niece, CPS underhandedly and illegally, arranged an out-of-county adoption after acknowledging, on the record, they never had any intention of giving her back from day one. And well, the State shrug it's shoulders, and that was that, and Tracy kept fighting appeal after appeal, pro-say.

If there was an Irish/Welsh/German/Oklahoma Cherokee tale of grief, misery, loss and partial redemption, filled with a lack of heroes (excluding King Arthur) and villains, corrupt kingdoms and promises of someday heaven, in both native and foreign lands, that would sum up my family legacy. (I however am rewriting that legacy and editing it for my son, and stopping the cycles of abuse, bad decisions, breaking the chains of fear, fear of power, and poverty—and the exploitation my family legacy has endured (but mostly not survived). The point is ...

Tracy's life sucked, and all 'authority' ever did, even as a vulnerable child, was make it worse, same for me and my sisters. This doesn't suddenly stop when your adults, nor do you just out-grow abuse and poverty. Nor do your children unless you know how to stop/change it)

The one thing that has come of all this, besides the obvious abuse of power and demonstrated need of court-appointed representation in Parental Termination cases, is is that we know, had Tracy had a better lot in life, and/or made better choices, she would have made a kick-ass attorney! Maybe she still can someday. My sister took herself and Jazzlyn all the way up to the Supreme Court of the United States after-all!

I was fortunate to have sought out mentors who helped me develop the tools I needed to grow and to break the family patterns, and disadvantages of severe poverty. The Library and Coffee-shops were my colleges.

My little sister, (who is finally blossoming, and growing into a great American woman) had the same struggles and lost her children.(CPS-also said on the record, they never intended to give my two additional nieces Jasmine Peck and Ashley Peck back to my younger sister, even though she too successfully completed their program, after a bad stint in the hospital due to CPS giving her a prescription for Prozac without a medical examination, or diagnosis for any condition warranting it.) She too, a teenage mom, appealed with the aid of my moms meager retirement/life savings but the State of Texas refused to hear the case twice, and is now 'expired'. CPS said my mom 'was crazy' (also without a medical examination and any kind of diagnosis) and denied her having parental guardianship of the children as well.

When I tried to intervene the first time, I didn't have the resources needed to raise a large family, and was told I wouldn't get any help since I was relative. It took me moving 1200 miles away to feel safe enough to reach out again and inquire—I was not going to let the state take my young child just because of my family's background, or the fact that I am a self-educated, tattooed, working class political activist—and was told I couldn't unless the state approved me for legal adoption which I would have to pay over $30,000 dollars for, which clearly I don't have.

I just hope that someday my nieces know that my sisters fought hard for them and that despite their sins, they fought hard for their redemption and their children (unlike their Dead-beat Dads-which when do we ever hear of them in the news?). And for the first time in our family's folklore we have heroines emerging.

I also hope someday they look for me as I look for them—so I can help them untangle all the consequences of generational abuse that resulted in their mothers tragic initial mistakes, and the abuse of power that resulted in undue additional harm. I hope they know that they have a kick-ass aunt who loves them and is fighting everyday to make the world a better place.

The State of Texas, and the states agencies, has the right to abuse power, and like the Death Penalty, Parental Termination without court-appointed representation for the poor or indigent, or anyone who can't afford an attorney, has incomprehensible consequences not only on civil liberties (and justice for all) but children.

Davina Rhine—Rebel Mom

Posted by: Davina Rhine | Mar 19, 2010 12:05:34 PM

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