Focusing on Children: Providing Counsel to Children in Expedited Proceedings to Terminate Parental Rights

Washington and Lee Law Review, Spring 2004 by Blinn, Bridget A

I. Introduction

A. Children in the System: Stories to Consider

1. Younger Children

Three-year-old Frank Torres had been in state custody for two years when a judge returned him to his biological mother, a newly recovering drug addict, in April 1997. By August, Frank's mother had drowned him in the bathtub, and the authorities had charged both of Frank's parents with first-degree murder.1 The judge who returned Frank to his mother's care was a veteran of the juvenile system who claimed that she rarely lost sleep over terminating the rights of parents who could not choose their children over a drug addiction.2 But, she did not terminate Frank's mother's rights in time to save his life. The system designed to protect Frank Torres failed him. No federal statute encouraged the state to provide an attorney to represent Frank in the proceedings that led to his death.

Social Services first removed Angelo Marinda from his parents' custody when he was twelve days old after his parents injured him so badly that he was hospitalized.3 he spent most of his very short life in foster care, occasionally visiting his biological family.4 After one of these visits, his foster mother reported bruises and bumps on his head, but the visits continued.5 When Angelo was eight months old, during a visit to his biological family over Christmas, his father shook him to death.6 Angelo's foster mother had reported concerns about the unsupervised visit to a social worker.7 Angelo was never represented by his own attorney, who might have argued that a holiday visit was not worth risking this child's life.

Frank Torres and Angelo Marinda died at the hands of their biological parents, even though previous injuries inflicted by those same parents resulted in earlier removals to state custody.8 These children suffered injuries that could qualify for expedited termination of parental rights under the Adoption and Safe Families Act of 1997 (ASFA),9 Congress's latest attempt to guide the disposition of child welfare cases.10 However, even the most current federal child-welfare legislation would not entitle these children to individual attorneys in proceedings to determine whether a court should terminate the biological parents' rights.

A sixteen-month-old girl in Rhode Island is now in foster care along with her five-month-old sister." The sixteen-month-old lost her right eye to a puncture wound shortly after returning to her mother's care after an earlier stay in foster care.12 Medical records indicate that the girl had already suffered two spiral fractures on her legs when she was seven months old, and that she had a healing fracture on her left forearm.13 This little girl and her sister will go through the termination process under the provisions of ASFA, and their mother's parental rights could be terminated in an expedited process because of the cruel and abusive treatment the sixteen-month-old suffered.14 As this Note will demonstrate, Congress intended courts to focus on the safety and well-being of children like these.15 This purpose remains unrealized, however, because Congress failed to provide any incentive for states to provide a voice for children like these girls.

2. Older Children

Lucas Ciambrone seemed luckier than Frank and Angelo. The State of Florida removed him from his biological mother and her abusive boyfriend after repeated reports of the boyfriend's physical abuse of Lucas and his siblings.16 Three-year-old Lucas and his older sister found a foster home with Heather and Joe Ciambrone, who planned to adopt them.17 An agency had licensed the Ciambrones despite concerns about Heather's youth and her inability to handle children with behavioral and emotional problems.18

The agency received reports that Lucas had been locked in a room for days, fed only oatmeal, and thrown against the wall.19 But, the agency never investigated repeated complaints about the Ciambrones' parenting, nor did it complete a homestudy before the adoption took place, as required by agency policy.20 After the adoption was finalized, the Ciambrones moved to an isolated area, where they were essentially alone with the children.21 Lucas spent the last months of his life in a room with a painted-over window which was screwed shut.22 Neighbors heard him crying to be let out.23 In May 1995, Lucas's adoptive parents brought him unconscious to Manatee Memorial Hospital, claiming he had self-inflected the injuries that eventually killed him.24

The medical examiner did not believe that Lucas could have inflicted the final lethal blow to his own head or the more than 200 other injuries to his twenty-six pound body, including fractured ribs and scars on his penis.25 State prosecutors charged Joe and Heather Ciambrone with the beating and starvation of their seven-year-old adopted son.26 The state terminated their rights to their other adopted children.27 The Ciambrones have appealed those decisions.28

Neither Lucas nor his siblings had the right to an attorney during the proceedings that terminated their biological parents' rights, nor did Lucas's siblings have that right during the proceedings to terminate the Ciambrones' parental rights. Lucas's siblings could each qualify under ASFA's provision that expedites proceedings to terminate parental rights.29 Congress's intention in passing ASFA was that Lucas's siblings would not suffer the same fate he did, and that their health and safety would be the paramount concern in the expedited proceeding to terminate the Ciambrones' parental rights.30 Each of Lucas's siblings might have a voice in the termination proceedings if ASFA contained a provision providing financial incentives to states to provide counsel to children in these proceedings.