HEARTBREAK by Arthur M. Kahn

On the Thursday afternoon before Labor Day, 2001, I received a call from a rookie lawyer. She had been assigned to represent a woman in a neglect case who was in danger of having her parental rights to her son terminated. The rookie was honest and forthright. “Arthur, I'm not competent enough to represent this woman and I'm afraid that if I'm her trial lawyer, I'll screw it up for her." I asked her if the Judge knew about this. She told me that she had approached the Judge and asked her if I could take over the case. The judge told her that I would have to agree.

The problem was that the trial was scheduled for the Tuesday after Labor Day and no adjournment would be granted. She also told me that the child was in foster care and the foster family wanted to adopt the client's son. The Department of Social Services supported the adoption. Great. I had 4 days to prepare for a very serious trial with much at stake for my client. I said yes, I would take the case. I actually liked the situation. Tough case, little time to prepare. Bad odds. Bring it on.

Even though the odds looked bad, I liked them because I was contemptuous of the Department of Social Services. Many of the workers were young and without kids. This meant they had little perspective on what the day to day skirmishes were in the life of most families. They didn't appreciate the sometimes difficult choices parents have to make.

I spent Friday reviewing the file at Family Court. It was, in fact, a tough case. I don't recollect why my new clients sons was in foster care. The current claim was that my client had failed to participate in developing a plan to get her son back home. There were a series of missed meetings and appointments to prepare for her son to return home, without, apparently, sufficient or acceptable reasons for her non-participation. All of this written in language that bordered on contempt for my client. Her son had been in foster care for over 18 months, a period of time that legally justified the application for termination of my clients parental rights. There was no father available and DSS didn't think much of my clients partner. Moreover, the boy was placed with a very acceptable middle class family in Dutchess county who were eager to adopt him. On the surface, it made sense that my clients son would be better off if his foster parents adopted him.

I met with my client on Saturday morning. She was in her late 20's but looked much older. She was worn down by everyday life. Her son was her eldest child, born was she was 16. She had 3 or 4 other kids. She explained that she had been thwarted in her attempts to help plan for her son's return home by the inflexibility of the case worker. She and her partner worked three or four part-time jobs, they had 1 car, a 15 year old junker which often broke down. Her DSS worker had been unwilling to accommodate her in scheduling meetings at times when she might be able to participate in planning for her son's return home.

The underlying reason for the inflexibility of the worker was, in my opinion, an issue of social class. Obviously, to me, the DSS worker felt that a middle class foster family trumped a poor, lower class, working class, mother. The boy would be better off with a middle class family of good social standing, relatively well off and, most importantly, stable. Tough case, I thought, even given the fact that the system is supposed to be designed to keep children with their natural parents.

I always tried to get a feel for what life was like for my clients. I asked about her other kids, how they did in school. She had four kids, the oldest being her son in foster care. I asked about where they lived. She told me they lived in a large house big enough so each of her kids had their own room. A big backyard. Strangely middle class house, I thought, for someone who worked 2 jobs a week, probably more. Same for her live-in boy friend. One car for 2 people to get to work. I asked about their income. They lived with their noses just above water. Backbreaking life.

I asked how much the rent was. She told me, "I don't pay rent. I own my home." Whoa! That hit me like a hammer. I was astounded. I asked her how much her mortgage payment was. “There's no mortgage. It's fully paid for."

I couldn't believe what I had just heard. I asked her what the house cost. “$75,000.” I then asked the obvious question, “Just how were you able to do that?” Turns out her father had passed away when she was 18 and left her an inheritance of $90,000. She had taken the money and bought the house because “I wanted my kids to have a home." At that precise moment I realized I had the best hand in the game. I represented a woman of character. A woman who, at the age of 18, instead of foolishly spending her inheritance, acted to protect and provide for her children. Most 18 year old people, I reasoned, would probably have spent the money on immediate gratification. They'd buy clothes and cars and bling and other bon bons. Perhaps a few trips, get a new car, buy drugs, etc. I got a much smaller inheritance when my grandfather died in 1970 and my wife and I headed to Europe for three weeks. Had a great trip and never thought of saving a dime. But not this woman. She wanted a roof over her kids head so she bought a house. Character. A good card to have.

This was crucial. It put my case in a much better position. The other card card in my pocket was the judge, Mary Work. Judge Work was, and still is, an excellent, hard working judge, who really cares about kids. Besides being a parent herself, she's smart and savvy and has a really well calibrated bullshit meter. She would think of mom as a woman of character living in poverty and trying her best to support and protect her kids and her best to cooperate with DSS. She was always able to focus on the real issue in Family Court – the best interests of the child. A lot of people and, frankly, lawyers, think the objective in Family Court is to throw as much mud as you can at the other adult. Wrong. The only issue is what's in the best interests of the kids. And I thought I had enough cards to win on that issue.

I put the case together over the weekend. I asked mom if she could get me some photographs of the house. I didn't want the judge to just listen to mom talking about the house. I wanted her to see it. The photo's I got were excellent. They showed a home, not just a house. It was clean inside and out and not in chaos.

The trial took place on the Tuesday after Labor Day. I was right about the judge's reaction to the fact that my client didn't waste an inheritance but acted to protect her children. Despite what had first seemed to be a case with long odds, the decision was easy. The judge ordered my client's son home with his mother and siblings, “today." Great victory over the odds and the system. A day to be proud.

Two years later I read in the newspaper that the boy I had tried so hard and successfully to free from foster care had been accused of raping his 12 year old sister. Sometimes this shit just breaks your heart.