Deborah A. Schmedemann*
Beginning in the summer of 2005, I had the privilege of representing, pro bono, a young man in the foster care system in his quest to be adopted. We differed in many respects, not the least being my ability to hear and his inability to do so. The following narrative is our story, as I experienced it. The names of the major characters are, of course, pseudonyms.
The narrative does not purport to present everything that could be said about the very rich and complex topics of representing children in foster care and working with clients who cannot hear. For further insights, I refer you to the sources noted below1 and the italicized footnotes throughout the story, which were drawn from the very insightful comments of Michael A. Schwartz, Associate Professor of Law and Director of the Disability Rights Clinic at the Syracuse University School of Law, who is deaf2 and to whom I am deeply indebted.
SPEAKING FOR ADAM
Of the eleven people in Courtroom 3A that gray mid-August afternoon in 2005, all but one—my client—could hear. The hearing was about him: a ward of the state at fourteen years old. The court would soon issue a permanency order, determining who would care for him, now that his parents' rights had been terminated without dispute.
Adam sat on one side of the big square table in the middle of the courtroom. As his lawyer, I sat to his right; to his left sat his current foster mother, entrusted with his care for the past eighteen months, and his guardian ad litem, appointed by the court to assess his best interests. The county attorney and Adam's social worker sat across the table from us. The judge, clad in a dress shirt and tie, not the traditional black robe, sat not at the bench but rather at the head of the table, along with his clerk and a foot-high stack of files for the day's cases. Near the bench sat the court reporter, transcribing the hearing.
Near the door and behind the bar separating the public from the participants sat Weida Allen, nearing sixty, a social worker from the Children's Law Center (CLC). Minnesota courts appoint the CLC to represent children needing protection or services, or "CHIPS" kids. CLC's mission is "Making Children's Voices Heard." As a volunteer lawyer with CLC, this was my first hearing with my first CLC client. Given Weida's experience and my naiveté, perhaps Weida and I should have traded places. But courts have rules about who sits where.
Until that day, Adam had never been in the courtroom, although he was the subject of a CHIPS case. Rather the court knew him through what others had written about him: doctors and psychologists provided physical and mental health assessments; an audiologist quantified and explained his deafness; teachers wrote his individual education plans and report cards; one social worker prepared a profile for the registry of children awaiting adoption; another filled out a difficulty-of-care form, used to calculate his foster parent's pay; and his social worker and guardian ad litem wrote reports drawing on others' reports. Adam was now fourteen, over two years into foster care, old enough to be in the courtroom and old enough to have an attorney.
Adam's deafness brought the eleventh person to the courtroom that gray August afternoon. She stood behind the judge, in Adam's line of sight—a court-ordered and county-paid American Sign Language (ASL) interpreter.
The interpreter had little to sign that afternoon: the hearing lasted only five or ten minutes; nothing new was decided. Adam said nothing, although he was given the opportunity. My task was to present Adam's "articulated positions." I had learned little in our two meetings before the hearing, so I asked that he stay in his current foster home for now and requested more time to work with him. The judge continued the case for several months.
I left court thinking that a teenage boy should have more than two sentences said on his behalf. His lawyer should know more than that about his needs and wishes.
LEARNING ABOUT CHIPS
Almost two months before that August court date, a dozen lawyers interested in representing children in foster care attended a daylong training session. We met in the twentieth-story, sun-filled conference room of a prominent Twin Cities law firm, a strong supporter of CLC. During breaks, those of us who worked in offices closer to the ground took in the views that lawyers in major firms come to take for granted. We were experienced lawyers, but our practices—corporate counsel, patent prosecution, teaching law (mine)—differed greatly from representing CHIPS kids.
The training started with important but abstract information about CHIPS: County social workers intervene when a child is "abused" or "neglected," that is, the child is suffering physical or emotional harm that is not an accident or the child has been denied necessary food, clothing, shelter, medical care, supervision, or protection from harm. In serious cases, when the child's living situation is dire or efforts to improve his situation fail, the county permanently removes the child from his parents' home. The child may be placed with a relative or with unrelated foster parents or, less commonly, adopted. The county seeks to identify and achieve the outcome that is in the "child's best interests." The process is not brief: the state agency's flowchart of CHIPS procedures runs six pages; the state court's timeline lists seventeen events.
In 2005, over 27,500 children were the subjects of an investigation into alleged child mistreatment in Minnesota; mistreatment was substantiated as to 8,500.3 Nearly 7,000 children were in foster care, and their average stay was almost ten months.4 About seventy percent of children in foster care were eventually reunified with their families.5 However, over 1,500 were waiting to be adopted that year—over twice the number that were adopted.6
Soon the abstract information gave way to stories. In late morning, seasoned pro bono attorneys recounted their experiences, emphasizing the rewards of representing CHIPS kids and praising CLC's support. Our lunch conversation was upbeat.
After lunch, we wrestled with short scenarios presenting common ethical dilemmas. We adeptly spotted the legal issues and stated the applicable rules. But we got caught in the stories: Should we go to the first varsity basketball game of a client whose biological parents are out of his life and whose foster parent is barely involved? Should we invite a client in a residential treatment facility to Thanksgiving dinner? Should we retrieve clothes from a runaway client's foster home and take them to her? In our discussion, we danced around the CHIPs lawyer's real dilemma: how to stay within the lawyer's bounds when your heart aches for your client.
Late in the afternoon, four CLC clients arrived. Silent and still, pens down, we listened as each client told his or her version of the challenges CHIPS families face: drug and alcohol abuse, teenage pregnancies and unwed parents, siblings with different fathers and different last names, learning disabilities and developmental delays, domestic and sexual abuse, poverty and unemployment, chronic illness and prison time, moving from place to place and school to school, prostitution and life on the streets. Yet the clients all seemed so normal, so unremarkable; you would never know their pasts if you passed them on the street.
We asked the clients what they wanted in a lawyer. They answered: "Don't be too nosy." "Genuinely care." "Do what you say you'll do." "Be available." "Keep pushing." We resumed taking notes.
After the clients left, we sat silently for a bit. The corporate lawyer broke the silence, expressing his anxiety the way corporate lawyers speak of risk: "Do you carry malpractice insurance on us?" CLC's director assured us that it did insure its volunteer attorneys, reiterated how CLC would support us, and invited us to sign up to represent CHIPS kids.
I had come to the training fully intending to sign up. After twenty years of teaching law, I was embarking on a year-long sabbatical to study pro bono publico, that is, work lawyers do for no fee, or a very low fee, for people of limited means or organizations serving people of limited means. The American Bar Association found in a 2005 study that nearly every lawyer viewed pro bono as a professional obligation, although our ethics rules did not require it. About two out of three lawyers did pro bono work, averaging about forty hours per year.7
Volunteering with CLC was at the top of my list. I had watched CLC evolve from a good idea to a nationally renowned program in the decade since its founding. I knew very little about CHIPS law and procedures. But I had been in the courtroom as a litigator with a major Twin Cities law firm in the early 1980s and a poverty lawyer in eastern Kentucky in the late 1990s. I also thought that I knew something about teenagers: I was the mother of two nearly grown daughters who were well on their way to becoming happy and productive adults. A decade earlier, my husband and I had provided emergency foster care to teenagers in trouble. My husband taught middle school, in a special-education program, so he had experience and knowledge that might be helpful. I signed up.
About a month later, a CLC lawyer called to ask me to represent my first client, a teenage boy. She described the case as unusually difficult; we would need an interpreter. She said, I am now sure, that we would need an "ASL interpreter," but I heard "ESL." I was excited: perhaps my client spoke a foreign language I had studied in college decades ago when I planned to enter the foreign service; if not, it would be fun to learn a bit of another language. When we sorted out the confusion, I felt only slightly daunted.
Before Adam and I met in early August, I had learned a tiny bit of sign language from the ASL interpreter at my church: peace and nice to meet you. When I met Adam, I signed nice to meet you—my right hand sliding over my left, palm to palm; two near-fists coming together with index fingers pointed upward; my right index finger pointing at him. I meant it, and he smiled slightly, for a moment.
But the conversation that followed through our intermediary, the court-appointed interpreter, was not a smiling matter. I knew only a few facts about Adam but had not yet seen his full file. He had no idea who I was and how my role differed from those of the many other adults in his life. I scarcely knew what to ask; he had no idea why he should answer. Adam had never worked with this interpreter, and his signing style was "sloppy," as the interpreter later told me. I asked a question, she signed it, he shook his head, she re-signed it, he signed a terse response, she re- VOICE: SPEAKING FOR A DEAF BOY IN FOSTER CARE 15 signed it to check it out, and then she spoke his response to me. It was slow going.
When I am teaching a law school class, I tell students that the purpose of the first meeting with a client is to establish rapport and lay the groundwork for a relationship of trust. But I could see in Adam's body and face, if not in his hands, that he found our conversation vexing and tiring. We quit after ten minutes. As I left, I wondered why he kept striking the fingers of one hand against the fingers of the other hand, back and forth, back and forth. Discouraged, I decided to learn some sign language.
TRYING TO LEARN A NEW LANGUAGE
Conversational American Sign Language, offered by Minneapolis Community and Technical College, met for two hours Monday evenings, starting in mid-September, in a classroom in a middle school in a wealthy Minneapolis suburb. The first evening, I looked around: piles of books, an outline of the day's lecture on the whiteboard, inspirational quotes on posters scattered around the room. This was a social studies classroom, and the topic for the week was democracy. During the school day, the room must have buzzed; the posted class rules included: "We are courteous. We listen to each other. We speak when no one else is speaking. We share our point of view."
We took ten chairs off the tables and arranged them so we could see our teacher, Susan Hagel, sitting in the front in her wheelchair. In her day job as a recreational therapist, she helped recently disabled people learn to function in public. In the evening, she taught ASL, which she had learned in college three decades ago. My nine classmates worked in adult day care, theater, horse training, printing, and commercial video production. We all wanted to communicate better with deaf clients or co-workers, and we wanted to learn something new and interesting.
ASL is interesting,8 but not new. In the earlier 1800s, Thomas Hopkins Gallaudet, a Congregational minister hoping to help a neighbor's deaf daughter, traveled to France to learn from the French masters. He returned with Laurent Clerc, a deaf teacher from the French school for the deaf. American Sign Language grew out of the American signs that had developed within deaf American communities and the French signs introduced by Clerc.
Now the third or fourth most commonly used language in the United States and Canada, ASL is a visual language, involving gestures, facial expressions, and body positions. ASL is not a mimed version of English, which uses a subject-verb syntax, but rather a language unto itself, based on concepts, presented in a topic-comment syntax. Thousands of ASL signs are supplemented by finger-spelling (making the hand shapes for each letter in a word) for proper nouns and concepts not yet captured in signs.9
Susan began the class with the standards: hello, how are you, what is your name, and so on. She showed us each sign, offered a way to remember it, and repeated and repeated it as we took notes on the Lesson 1 vocabulary list in our slim course manual. I struggled to describe each sign in a phrase or two: "Right hand" would not suffice; was the hand a fist or open flat or something in between, pointed up or down or away or toward me? And what was the left hand doing? How big or small was the motion? Some of us muttered as we wrote, resorting to the language we were supposed to be setting aside. Eventually, we all signed to Susan; she gently corrected and roundly praised us. It was a lively class: much chattering; some furious scribbling; nervous laughter on our part and genuine laughter on hers; hands moving this way and that, only vaguely in unison.
When I turned on my computer the next morning, my hands and fingers ached. My notes were less than illuminating, and I discovered that my hands had little overnight kinesthetic memory. But I clearly remembered what striking the fingers of one hand against the fingers of the other means—whatever.
I wanted to learn how to sign lawyer. I found an online ASL dictionary of 1,270 terms. The description of the sign for law read: "The upright right 'L' hand, resting palm against palm on the upright '5' hand, moves down in an arc a short distance, coming to rest on the base of the left palm." The explanation read: "The L handshape is moved from the top of a page to the bottom which is represented by the upright hand." I watched a brown-haired woman in a red shirt against a black backdrop sign law over and over. Each time, I saw a gun pointing at me, suggesting my least favorite metaphor for lawyer—the hired gun.
I bought the book Susan recommended, Signing Illustrated: The Complete Learning Guide,10 which provided a description, memory aid, and sketch for each sign. I looked up law. I liked this one better: the index finger stays upright as the right hand moves downward against the left hand. This sign suggested reading a page of a book. Happily, Susan agreed with the version from Signing Illustrated.
As the class went on, we learned to finger-spell; count; and sign blocks of words, such as verbs, parts of the body, relationships, and seasons. Some signs resemble their concepts: tapping your temple with one finger means think, pointing to your chin and then out means tell. But others are abstract: the dominant index finger drawn across the other hand's open palm means what, two downward fists means can.We learned some ASL conventions: a quizzical facial expression conveys a question; signs near the heart convey emotions; signs near the forehead convey male, near the jaw line female. ASL is directional; for example, the help sign (a fist supported by the other hand) made towards a person means help you, towards oneself help me.
I soon came to see ASL as an elegant language, economy melded with expressiveness—at least in Susan's hands. Many of my signs were inaccurate or incomplete, the palm down instead of up, my finger touching my jaw rather than my forehead. Even when I knew a sign, my gestures were tentative or clumsy, as a first grader's letters are misshapen though discernible. I grimaced, I am sure, even when the sign called for a smile.
According to Susan, auditory learners tend to have more difficulty learning ASL than visual learners. Analytical people who like right and wrong answers struggle more than expressive people. Knowing a foreign language helps. Piano players and knitters learn ASL easily because they are skilled in coordinating their hands and fingers. Children learn ASL faster than adults do; children "have more brain cells and are more playful with language." I once spoke several languages, albeit years ago in college. But as a middle-aged auditory learner and analytical person with little dexterity, I seemed not to have an eye or hands for sign language.
The fifth week of class, just past the halfway mark, Susan taught some words silently. She finger-spelled them and then signed them. The words were not difficult, and she worked down the list in our course manual, but we all felt the loss of her voice. Yet at one point, I had a good guess of what the sign for the next word on the list might be—my first, slight glimmer of thinking in sign language.
* © Deborah A. Schmedemann 2010. Professor of Law and Co-coordinator of Writing & Representation: Advice & Persuasion at William Mitchell College of Law. My thanks go to the very fine staff of the Children's Law Center who both gave me the opportunity to do this work and trained and supported me; to the non-lawyers who helped me see, just a bit, what it means to be deaf and how to work with Adam; to the faculty and my classmates at the Loft Literary Center, where I studied memoir and the personal essay; to the deans and my colleagues at William Mitchell, who have so consistently supported my service endeavors; and last but not least to Craig Bower, my ultimate confidante and counselor. This story is for Keith, in honor of Joan. My deepest debts are, of course, to Adam and his mother Lesley.
1 The ABA Center on Children and the Law, including the Bar-Youth Empowerment Project and the National Child Welfare Resource Center on Legal and Judicial Issues, and the National Council of Juvenile and Family Court Judges provide extensive resources about representation of children in the foster care system. The following journals are particularly helpful: Child Law Practice, Child Court Works, and Juvenile and Family Justice Today. For an excellent overview, see Andrea Khoury, With Me, Not Without Me: How to Involve Children in Court, 26 ABA Child L. Prac. 129 (Nov. 2007). For information about representing clients with disabilities, see the resources provided by the ABA Commission on Mental and Physical Disability Law, including part VI of John Parry, Disability Discrimination Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals (ABA 2008).
2 This story uses "deaf" to refer to people with a profound hearing impairment. I have found that some dislike this term; others dislike "hearing impairment." I have chosen to use "deaf" because the people who taught me about communicating with my client used that term.
3 Children's Bureau, Administration for Children & Fams., U.S. Dept. of Health & Hum. Servs., Child Welfare Outcomes 2002–2005: Report to Congress ch. 5 Minnesota §§ A-B, http://www.acf.hhs.gov/programs/cb/pubs/cwo05/state_data/ minnesota.htm (accessed Apr. 10, 2010).
4 Id. at § C.
5 Id. at Minnesota [Outcomes Data] Chart 3.1.
6 Id. at §§ D–E.
7 The follow-up report found that nearly three out of four lawyers perform pro bono on behalf of a person of limited means or for an organization serving people of limited means; one out of four report performing fifty or more hours of this type of pro bono. ABA Standing Comm. on Pro Bono & Pub. Serv., Supporting Justice II: A Report on the Pro Bono Work of America's Lawyers 7, http://www.abanet.org/legalservices/probono/nav_publications.shtml (Feb. 2009).
8 For more information about ASL, see the following websites: deaflibrary.org, clerccenter.gallaudet.edu, and nidcd.nih.gov (the National Institute on Deafness and Other Communication Disorders).
9 As noted in the introduction, the italicized footnotes are drawn from comments made in response to an earlier version of the article by a practicing attorney who is deaf. ASL is not only a matter of signing. As with any language, it is grounded in a culture; mastery requires immersion in Deaf culture.
10 Mickey Flodin, Signing Illustrated: The Complete Learning Guide (Berkley Publg. Group 2004).