Included in Reaching the Bar, a collection of essays by women lawyers, published in 2009.

I am an appellate defense attorney. I represent parents who have had their children removed by county child protection agencies. My practice is limited to indigents; I am appointed and paid by the courts. Many of my clients are uneducated, victims of domestic violence, or addicted to drugs or alcohol. Many were abused or neglected during their own childhoods. Many suffer from mental illness. All have lost their cases at the trial level and want to appeal.

People ask why I want to represent indigent parents accused of abusing and neglecting their children. I represent such parents on appeal because I believe, with the A.C.L.U., that when the rights of society’s most vulnerable members are denied, everybody’s rights are in danger. I represent such parents on appeal because I believe the most vulnerable members of society are the ones most in need of legal protection. I represent such parents because too often poverty is confused with neglect. I represent such parents because I can see—even if county agencies often don’t—that the “best interests of the child” standard is culturally biased.

Most of the time, I cannot do much for my clients. Appellate courts do not reweigh evidence. Appellate courts rarely accept new evidence, and they give great deference to trial court decisions. Appeals drag on so long that appellate courts are reluctant to remove a child from the new caretakers with whom he or she has forged new bonds. As a result, the success rate for appeals in these kinds of cases is less than 5%.

What keeps me going are those clients, like Diane, who I can help. Diane never married and had three children with three different fathers. At 27, she and her children lived with her parents. Her mother, an early childhood education teacher, stayed home and cared for Diane’s children while Diane attended community college and worked part-time.

The subject of Diane’s appeal was her youngest child, Trevor. Trevor’s father had a criminal record which included assault and battery and domestic violence. While Diane was pregnant with Trevor, Trevor’s father lived with Diane, her parents, and her two other children. Shortly after Trevor was born, however, Diane’s parents made Trevor’s father move out because of his temper.

When Trevor was four months old, Diane allowed him to have an overnight visit with his father at his paternal aunt’s house. After the visit, the father refused to let Diane have Trevor back, and he threatened to kill Diane if she tried to find Trevor or take him back. Diane heeded his threats and did not attempt, on her own, to retrieve Trevor. Instead she filed papers with the family court asking that Trevor be returned to her. The court told her nothing could be done because she did not know the father’s whereabouts, and so she could not serve him with court papers.

One year later, a motel owner in Bakersfield called the police to report what sounded like domestic violence occurring in one of the rooms. By the time the police arrived, the room was quiet. The police opened the door to find a toddler unattended in the room, wearing dirty diapers. The toddler was later identified as Trevor. Several hours later, his father was picked up by the police on the other side of town. His current girlfriend accused him of beating her, and so he was charged with domestic violence. The father told the social worker that he had custody of Trevor because Diane abandoned him.

The social worker located Diane, inspected Diane’s parent’s home, and reported that Diane’s other children were happy and well-cared for. The law in such a case requires the lower court to place Trevor with Diane—who was considered the non- offending and non-custodial parent—unless the court finds it would be detrimental to place Trevor with her. At the hearing, the father’s attorney argued that Diane had essentially abandoned Trevor in not doing more to get him back during the year he lived with the father’s relatives. The father testified that Diane had never once tried to get Trevor back.

The trial court agreed with Trevor’s father, and found that placing Trevor with Diane would be detrimental because Diane had abandoned him and thus proved herself unfit to care for him. The court ordered Trevor placed in foster care, and ordered Diane to participate in parenting classes and a domestic violence victim’s program as preconditions for getting Trevor back. Diane appealed.

My job, essentially, is to write my client’s story, from her viewpoint. Very often, the only papers filed with the court are reports authored by the child protective services department—meaning my client’s story has never really been told.

The transcripts in Diane’s case were filled with evidence about how Diane was often passive in relationships, being taken advantage of by men and unable to stand up for herself. I sifted through the hundreds of pages of reports and court records for the facts which mattered most to Diane—theevidence that she’d tried, through the family court, to get Trevor back, and the evidence that she had good reason to fear Trevor’s father and heed his warning that he would kill her if she tried to get Trevor back.

This doesn’t mean that I can ignore the facts that are bad for my client. I can’t. I had to include evidence that Diane had a history of involvement with violent men, and that, years earlier, she had friends who’d used marijuana—facts which the opposing attorney emphasized in his arguments, and which I had to include as well. My job was to present the story accurately, and help the court see the story from Diane’s point of view so the appellate court could understand what she did and why she did it. After laying out the facts of the case, my next task was to convince the appellate court that the lower court had misapplied the law.

In Diane’s case, there was no evidence to support the lower court’s finding of any detriment to Trevor if returned to Diane. The appellate court, therefore, reversed the lower court’s decision and ordered Trevor returned to Diane. By the time she regained custody of Trevor, two years had passed since his father initially kidnapped him. Diane, her parents, and Trevor’s siblings had to get to know him all over again.

The day Diane got Trevor back, she called me to say thank you. She was tearful with joy, and said what my clients often say: “You really understood what I went through.” She was unable to talk long, though: She had her hands full with three small children.

Success stories like Diane’s are rare. Too often my clients, like Brenda, lose on appeal because of a long- standing substance abuse problem. Brenda’s baby, Derrick, was removed by child protective services when he tested positive at birth for amphetamine. For the following two weeks, Brenda refused to drug test. Three weeks after Derrick’s birth, on the first of December, she entered a residential drug rehabilitation program. After that, she regularly tested clean and participated in all services available to her.

She admitted to a single relapse in March. Without her admission, the court and department would not have known about her relapse. The following September she asked that Derrick be returned to her on the grounds that she had been clean for six months and was about to graduate from her rehabilitation program. The trial court denied her request, stating that her relapse and six- year history with addiction proved it unlikely that she would remain clean, because the child was bonded to his new caretakers who wanted to adopt him, and because she had not shown how return of the child would be in Derrick’s best interests. She appealed. The appellate court found enough evidence to support the juvenile court’s orders. Derrick’s foster family was allowed to adopt him.

When I entered law school, I didn’t know I would end up practicing appellate law, or representing parents accused of abusing and neglecting their children. Initially I dabbled in trademark litigation; my summer law school jobs in law school were in large, corporate firms. After two summers, I knew I needed to do work which mattered to ordinary people. A student internship in the public defender’s office taught me that trial work was not for me: The adrenaline rush was just too much. I preferred a quiet library and the leisure to study an appellate record and research fine points of law.

I also needed the emotional distance afforded by appellate work. As a mother, I find many of my client’s stories simply too painful to bear. I’ll never forget the client who, after her parental rights to her seven year old daughter were terminated, said, “I can’t sleep at night—I keep remembering her expression when they told her she’d never see me again.” Or the plaintive question from another: “Do you mean I’ll never, ever see my little boy again?”

One of my former law school classmates, seeing how often I lose, asked, “Wouldn’t you rather do trial work so you’d have more chance of making a difference?” Indeed, appellate law—particularly representing indigents appealing from adverse rulings brought against them by the government—is what you might call “lost-cause-lawyering.” By the time my clients fill out a notice of appeal, the courts have ruled against them, and it’s usually too late for anything to help them.

But trial work would mean being in the trenches, seeing the tears, and watching the heartbreak. I just don’t have the stomach for it. The hardest part of my job is when I have to tell a parent that there is nothing more that can be done. Inevitably, like Brenda who was ready to graduate from her rehabilitation program, they say, “What else can I do? I can’t give up! Look how much I’ve done!” But once the appellate court has ruled against them, and once the Supreme Court has refused to hear their case, they have come to the end of the line. There is simply nothing more they can do—except grieve the loss of their children.

My most difficult conversations with my clients occur on the telephone. Unlike a criminal appellate attorney, my clients are rarely incarcerated, so we can talk freely on the telephone. By the time I have to deliver the bad news—that there is nothing more that can be done—the actual events, including the removal of the child are usually more than a year in the past. During that last, painful phone call, most of my clients thank me for trying, then simply hang up.

There are also clients for whom I cannot even file an appeal because there are simply no grounds. The code forbids me to file appeals considered frivolous. There are clients whose history of mental illness and demonstrated inability to parent their children fully justified the court’s orders. There are clients who are on the run from the law, or who are responsible for the previous death of a child, or who simply cannot show on appeal that the trial court made any reversible errors.

There are also times I file an appeal, deeply believing I should win, only to be disappointed with the appellate court’s ruling. Monica, for example, had two sons, aged nine and twelve. Her sons were put into foster care when they witnessed an incident of domestic violence between Monica and her boyfriend. The scene the boys witnessed was Monica’s last encounter with the boyfriend. She packed his things and ordered him from her house and got a restraining order against him.

The record in Monica’s case contained evidence that Monica had a history of relationships with violent men, so the juvenile court ordered her to participate in a program for domestic violence victims as a condition to getting her boys back. Monica willingly enrolled, saying she would do whatever was necessary. When the social worker interviewed her, she answered each question truthfully. The social worker asked if she ever used drugs or drank alcohol. She said she’d never, in her life, used illegal substances, but she often had a glass of wine with dinner. The social worker asked if she had ever tried to stop. She said a few times, because of her weight, but she each time she resumed.

As a result of that interview, the juvenile court ordered Monica to participate in an intensive program for alcohol abusers. Monica wanted to appeal the order that she participate in the intensive alcohol abuse program because of the hardship—she was working full time, maintaining regular visits with her boys, and trying to comply with all the court’s orders. An intensive five-days-per week program was simply too much for her schedule.

I scoured the 500 page record for any evidence that Monica’s glass of wine with dinner had ever posed any problems in her life. She had never been arrested at all, and thus obviously had no alcohol arrests. There were no reported incidents in which she was drunk. I therefore filed an appeal challenging the reasonableness of the court’s order that she participate in an intensive alcohol abuse program, arguing that there was simply no evidence that a habitual glass of wine with dinner constituted an alcohol abuse problem.

The appellate court ruled against Monica, finding that the evidence of her domestic violence combined with her admission that she habitually drank a glass of wine with dinner was enough for the lower court to conclude that her glass of wine with dinner contributed to her domestic violence incidents. The appellate court’s job is simply to see if there was any evidence to support what the lower court did. In this case—in the appellate court’sopinion—there was evidence. The evidence was not overwhelming, but she admitted to drinking wine each evening, and she was involved in domestic violence. It wasn’t preposterous, in the appellate court’s opinion, for a lower court to link the glass of wine with the domestic violence.

By the time the appellate court made its ruling, Monica had completed all of her reunification services despite the hardships and had gone a full year without a single incident of domestic violence in her life. Her boys—who were old enough to state their preference and testified that they wanted to live with their mother—were therefore returned to her, and her story ended happily, despite the fact that she lost her appeal.

Before law school, I taught English at the college and university level. I noticed that the majority of my students were quick to judge literary characters, but slow to sympathize with them. It was John Updike who said that the purpose of literature is to enlarge our sympathies, and it seems to me it’s the ability to sympathize which makes us human. It never occurred to me to work for the prosecution, or to defend a governmental agency because I believe that to prosecute is to judge, whereas defending is an act of sympathy.

I found my way to this area of the law while looking for a paper topic for a law school seminar. The course was entitled, “The Legal and Political Implications of the War on Drugs,” and the point of the course was basically that the War on Drugs is a disaster—expanding the prisons by incarcerating addicts who need treatment, driving up the price of drugs and making them more concentrated and easier to smuggle and hence more dangerous, the way Prohibition made alcohol more dangerous and expensive during the 1920’s. The professor, helping students find paper topics, asked me what I wanted to write about. Wanting something more personal and humane than trademark litigation, I said, “Something to do with mothers and children.”

Parents who are accused of neglecting or abusing their children are surely among the most vilified members of our society. I believe that the best interests of the children are served when parents —even flawed and imperfect parents—areafforded all the protections of the law. It is my job to tell the ignored part of my client’s story, and to tell it sympathetically.