LSC Updates: Ethical Dilemmas and Mediating Adoption

BY KAREN TENENBAUM

Jeff Stephens and Duston Barton confer about a yogurt.

Robert Boxie, John Hill, and Kevin LoVecchio (2Ls, Housing) are preparing for trial a case that came to them at the Attorney Of the Day table at Boston Housing Court four weeks ago.

On February 16, Boxie and Hill were approached by a tenant at the table who had been haled into court for nonpayment of rent. The tenant and her three children had moved into the apartment in November. She’d paid for November and December, but not January or February. The tenant told Boxie and Hill that she’d withheld rent because of conditions in the apartment (primarily mold, rodent infestation and a broken smoke detector). She had both pictures and inspection reports to back her claim.

The two young advocates briefly coached her, and when the judge called her case, she responded “Mediation” – meaning that she wished for a court-appointed mediator to resolve the dispute. Her landlord, however, responded “Trial.” “Our first task,” Hill said, “was to convince the landlord not to go to trial.” Putting their persuasive powers to work, Boxie and Hill nearly convinced the landlord not insist on a trial, and in fact the parties came close to agreement. The team proposed that the landlord would forgo the arrearage (withheld rent) and the tenant would begin paying again upon the first clean inspection. The landlord, an older gentleman who was representing himself, seemed about to acquiesce. He told Boxie and Hill that he was new to the rental business; he was resigned to the situation and said he’d “‘just chalk it up to experience,'” Hill remembered.

At this point Hill paused. “He was relying too much on what I was telling him,” he said. “It was true…but he was taking everything at face value.” So Hill referred the landlord to the Landlord’s Attorney of the Day table, which is adjacent to the table for tenants. The team’s action has sparked lively debate in Harvard Legal Services Center housing unit circles. Some, such as supervisor Dave Grossman, believe that Hill did the right thing. If this litigation is to be fair, the landlord should at least know about the free legal advice table. After all, Grossman contended, wouldn’t we want the landlord table to refer tenants to us? Others point out that Hill had no duty to tell the landlord about the table, and that he has hurt their client in doing so. Because the judge always advises both landlords and tenants of the tables, the landlord was already on notice. Indeed, the landlord is now represented by an attorney and has since rejected the settlement that the parties came so close to signing.

The judge ordered a three-week postponement, and the parties returned to court on March 9th. This time, the landlord was firmer about wanting to go to trial, though he still left open the possibility of a negotiated settlement. On the 9th, the team decided to enter an appearance on behalf of the tenant, which means that they will officially represent her. The move gained them more time to prepare for a trial, because a court rule gives a tenant extra time if an Attorney of the Day decides to represent her. Boxie is lead counsel, and Hill and Lovecchio are first mates. The trial date is set for Thursday, March 16. Because it’s possible that the landlord will snatch the first, still-warm copy of this Record from a Harkbox that day and discover the team’s strategy, or one of you will snitch to him, or – also plausibly – the trial will be postponed, I can’t tell you how Boxie is preparing, but let me just say that it is going to be awesome.

Melissa Patterson (3L, Child Advocacy Program) is on three cases as part of the Permanency Mediation Program, a clinical in which a student assists a mediator to help birth and adoptive parents create permanent family situations for children in foster care. The cases come to Patterson as referrals from Juvenile Court. The Court gets the cases from the Department of Social Services (DSS), which will remove a child from his parent’s home upon evidence (for example) of abuse, neglect, or a parent’s mental health problems. Sometimes, Patterson said, a concerned family member will contact DSS on the child’s behalf to suggest a home inspection. If DSS finds the child’s situation unacceptable, the child will enter foster care.

In the 1990s, Patterson related, there “was a movement to make sure kids weren’t languishing in foster care,” and the federal government passed the Adoption and Safe Families Act in 1997. In Massachusetts, the Act created a regime that shortened the period of time that birth parents have to create stable and safe homes for their children. “The goal is [initially] reunification,” Patterson said, but if that period elapses without sufficient improvement, the state will move to terminate parental rights. So when DSS initially removes a child, the state will provide the parent with social services, like drug counseling or mental health treatment. If, after a certain number of months, the “parents aren’t in substantial compliance with their service plans, the goal changes from reunification” to termination or a guardianship, Patterson related. Only upon termination of parental rights can a child be adopted. It is when the DSS decides to pursue termination that Patterson gets involved.

What happens next reflects the differences between Patterson’s role and the role of an attorney in ordinary litigation. “It’s not really a negotiation process,” Patterson said. “It’s very child-centered.” In Massachusetts, anytime your parental rights are subject to termination, you are entitled to a lawyer. However, lawyers are not present in the mediations between birth parents and adoptive parents – only to advise before and review proposed agreements after. One of Patterson’s jobs as a mediator is to help resolve the differences between the parties’ interests and those of the child. Patterson talks about shifting parties’ subjective view of the goal – “‘I’m the birth parent and I should get to see my kid as much as possible'” to a more objective one, that looks only at the child’s well being.

Patterson’s work also has an emotional element that’s less present in litigation. One of the birth parents, for example, was in foster care for a long time himself, and Patterson’s supervisor, Cyndi Monteiro, will often begin a first meeting with a client by asking about the parent’s own childhood. “You hear a lot of really sad stories,” Patterson said. “Poverty and lack of education can really affect how people parent their kids.”

Comments