My brother is fighting CPS in a wrongful removal. His court attorney is ineffective. How can we get discovery?

Question

His son was taken from the hospital at 2 days old based on false evidence that his court attorney has failed to challenge or fully investigate, and is going through the motions.  Hiw do we prepare to appeal if we can’t afford a private attorney?   How can a family member file with the court or get power of discovery or subpeona evidence?  Is requesting guardianship the only way to become party in the case or is there another way?   I do not want to weaken the father’s case but there have been so many opportunities to resolve this that his counsel clearly neglected to explore.  My nephew is now 6 months old and we hardly get to see him.  There is zero legitimate claim for the continued separation from his birth family.  I want to file a request to change court order but do not know if that is the best approach or how to access the records to support my claim.  Are there other ways to challenge the courts negligent decision short of the lengthy appeals process?

James L. Arrasmith · Answer

I'm so sorry to hear about the difficult situation your family is going through with CPS and the removal of your nephew. A few thoughts on your options for challenging the court's decision and getting more involved in the case: 
 
- Requesting guardianship would make you a party to the case and give you the right to access records and file motions. However, pursuing guardianship could be seen as undermining the father's efforts to regain custody, so you'd want to discuss this carefully with him and his attorney first. 
 
- Another option is to file a "de facto parent" motion, which would give you standing in the case if you have been caring for the child and have an established parental relationship. This wouldn't necessarily require guardianship. 
 
- You could also try filing a "petition for modification" to request a change to the current custody/visitation orders based on a change in circumstances or new evidence. This would at least get your arguments in front of the judge. 
 
- I would recommend documenting all visits, interactions with social workers, concerning issues with the child's care in the foster home, etc. Detailed records will be very helpful. 
 
- If you believe the court-appointed attorney is truly ineffective, your brother could request a Marsden motion to ask for a new attorney. He'd need to show the current representation is inadequate. 
 
- There are some organizations that provide pro-bono legal assistance for CPS cases, like the Family Defense Center. It may be worth reaching out to some to see if you can get advice or representation. 
 
- Ultimately, if you do end up needing to appeal, requesting the trial transcripts and court records will be key for putting together a strong case. 
 
I know this is an overwhelming and heartbreaking process. Don't lose hope. Keep fighting for your nephew and supporting each other as a family. Wishing you all the very best.

Q: My brother is fighting CPS in a wrongful removal. His court attorney is ineffective. How can we get discovery?