Ashley Hiruko/illustration

Ashley Hiruko/illustration

Susan’s quest for ‘justice’ and the civil legal system dilemma

While citizens have the right to an attorney in criminal cases, they’re not afforded the same rights in civil litigation.

Susan Chen’s story begins as a criminal matter.

In 2013 she paid a visit to a King County care facility with her son and saw physicians that would ultimately report the mother of two to Child Protective Services. Her son was taken from her and placed in the care of eight different families over the course of about a year. The fallout caused immense damage to her family and then 3-year-old child, lawsuits allege.

Now her story reaches into civil matters as Chen is currently pursuing legal action against a slew of government agencies in state and federal courts. She’s been waiting years to find an end result to what is alleged to be a detrimental mistake.

Chen was afforded counsel on criminal charges, guaranteed representation driven by the Sixth Amendment to the U.S. Constitution. But like others who are poverty-stricken and facing eviction, unpaid medical debt or injury, she’s been left to navigate her civil legal matters without that assurance. And while there is a plethora of civil-legal aid, and recently more funding approved by the state to that cause, advocates say it’s not nearly enough.

The accusations

A probable cause report from a Redmond detective outlined it clearly — a child was at Seattle Children’s Hospital for severe malnutrition in October 2013, and doctors alleged the mother was to blame. The Redmond Police Department was involved, due to Chen and her family residing in the city at that time. When the Reporter sought further information from the department, spokesperson Andrea Wolf-Buck said they don’t comment on ongoing litigation.

The physician noted that the child’s condition had worsened from the day before, when she had examined him last. The doctor described the child as looking fatigued and with an abdomen that was “extremely” swollen. They believed the boy was suffering from failure to thrive, a term used to describe a lack of weight gain or uncalled for weight loss. The doctor reported the child had allegedly lost two pounds within the last two months and needed to be admitted to the hospital for treatment.

At Children’s the following day, a resident doctor said the child was suffering from gross malnutrition and failure to thrive. And that “all other causes of the child’s condition aside from malnutrition had been ruled out,” according to court documents. The Redmond detective wrote that Chen was restricting her child from eating things, such as carbohydrates, even though she wasn’t directed to do so by any doctor.

“Medical staff at Seattle Children’s found no sign of necessary food restrictions with regard to (the child’s) diet,” charging documents read.

Chen was charged in Superior Court with one count of criminal mistreatment in the second degree in 2014. The King County prosecutor said she “recklessly” created an “imminent and substantial risk of death or great bodily harm” to her child by withholding the basic necessities of life.

Prosecutors also accused Chen of taking her child to 14 different health care providers in a two-year span and refusing to share information among the providers. English is not Chen’s first language. Being a Chinese immigrant, Chen speaks fluent Mandarin.

But the health care visits — and Chen’s search for help — began long before that day at Children’s.

The criminal charge against Chen would ultimately be dropped. Her former public defender Twyla Carter, who now works for the ACLU National in New York, presented a timeline of events, physician testimony, dietary notes and letters of support for Chen. She made clear what could have been found, given a deeper level and more thorough investigation, Carter said.

Carter first came across Chen as she stood before the judge without legal representation for an allegation of criminal mistreatment of a child in the second degree. Confusion surrounding Chen’s newly indigent status meant she was denied representation based on her previous income. Carter stepped in as a friend of the court and was ultimately put on Chen’s criminal case.

“As a public defender, over time we can sometimes become jaded to listening to clients’ claims of innocence, but you’d be surprised how many of those we defend are innocent morally as well as under the law,” Carter said.

As the only person with an obligation to protect Chen, Carter sorted through hundreds of pages of discovery and noted multiple findings that went undiscovered by investigators, despite the same documents being forwarded to her by the prosecutors.

“There’s a deep importance in reading every single piece of ink on every single piece of paper,” Carter said.

Seeking help

When Chen’s toddler became ill, she sought help. She knew his bouts of diarrhea and constipation weren’t normal for the child. His weight would fluctuate, and Chen would draw attention to her son’s inability to gain weight to physicians during visits.

She was also concerned with his behavior.

An Issaquah-based care facility diagnosed the child with autism spectrum disorder in 2012. That happened after the child’s mother became aware of his challenges related to social engagement and expressive language development. And when the child’s Oregon physician recommended she put her child on restrictive diets, in order to weed out and locate the potential cause for her child’s gastrointestinal problems and aid with his autism disorder, she complied.

The child regularly refused to eat, Carter found. He would often reject food. Dietary notes taken by the toddler’s child care facility showed a similar situation to what the toddler’s parents had reported to the Oregon physician, who found the child ate poorly. The parents had to blend his food and force him to take supplements. Poor eating habits are a known characteristic symptom of autism.

Carter also discovered that, at one point, the child was discharged from the emergency room by the ER doctor and that Chen did not remove him from the hospital on her own. His creatinine levels — used as a marker for kidney health — were inaccurately reported during the 72-hour hearing.

Health professionals’ statements in favor of returning the child to his family would describe the level of concern she had as typical of most caring parents. And a majority of the numerous health care visits came from doctor referrals to other specialists.

But the new revelations came too late, legal action papers state. The child was returned to his parents in 2014, almost a year after being removed — after receiving inconsistent therapy for his autism and experiencing unnecessary trauma. Lawsuits attribute the factors to his regression in abilities.

“(He) has not been able to regain the skills that he lost,” one lawsuit states. The child’s parents sought treatment at Harvard, Mary Bridge, Swedish and in China.

Chen’s son, now 9, cannot speak, remains in diapers and screams uncontrollably, sometimes for hours, at any actual or possible separation from his parents.

The lawsuit alleges the child had none of those characteristics before the misdiagnoses of the Seattle Children’s doctors and the “disastrous nine-month stay in eight different foster homes, with little therapy and minimal contact with his parents and brother.”

Redress

Alone, without a law degree and motivated by her desire for justice for her child, Chen is navigating the complicated legal system created by and for lawyers. On behalf of her children, Chen filed lawsuits against the doctors, Seattle Children’s Hospital, the Redmond Police Department, the Redmond detective assigned to the case, the city of Redmond, the State of Washington and the Department of Social and Health Services. And years later, they continue.

Unlike her criminal case, Chen’s civil matters did not guarantee her a right to an attorney. In her federal suit against police, the federal court that decided the merits of the case appointed counsel for the litigation.

The federal suit complaint states the Redmond detective led an investigation and examined if Chen had indeed neglected her child. And as part of the investigation, the lawsuit says the detective obtained the child’s medical records and a report of findings drafted and given to the King County Prosecuting Attorney’s Office.

The suit alleges that the detective made a number of statements in the probable cause affidavit that were “materially misleading” or “deliberately indifferent” to the truth, leading to Chen’s arrest. A trial is set for next year.

In another lawsuit in state court against physicians and Seattle Children’s Hospital, Chen has proceeded through the process pro se (without legal representation), filing and drafting court documents mostly on her own. The respondent physicians were represented by multiple lawyers.

Because Chen has no legal training she was not able to provide affidavits on demand, or even to understand what they were or why they were needed, court documents state. She requested a continuance to obtain an attorney. The court denied the mother’s request.

The court rejected Chen’s request for discovery and granted a summary judgment on all claims, meaning they were dismissed. The judge did not specify whether the dismissal was with or without prejudice, according to appeal documents. A case dismissed without prejudice can be brought back to court. While a case dismissed with prejudice never can.

The case has been appealed by Chen to the State Supreme Court for review. The court has not yet rejected or agreed to hear the case.

Chen’s situation highlights an access-to-justice issue for people with little money, Carter said. While there are free libraries, there is a lack of consistent and widely available technical and legal assistance for poor people to navigate the civil legal system — an avenue Chen is now taking to get justice.

“There are great organizations…but they are limited in their capacity and resources to help poor people who experience injustice on the civil side where they are not entitled to effective representation of counsel,” Carter said.

A need

Others, facing their own civil legal dilemmas and unable to dole out the cash for representation, are often left to navigate the court system alone like Chen.

The 2015 Civil Legal Needs Study Update found that “(71) percent of low-income households in Washington State experience one or more civil legal problems each year. Of this number, at least 76 percent do not get any legal help to solve these problems. Sixty-five percent of those who experience at least one civil legal problem each year do not seek legal help.”

This is due to many of them not being aware that the issue was legal in nature. National studies confirm that low-income people struggle to make the link between the problems they experience and the need for legal help.

Many of those who came across one or more civil legal problems felt they couldn’t afford the legal help or did not know where to go for assistance. For those who did seek out legal help, the needs study found one-third had no assistance whatsoever.

Civil issues can have large impacts too, especially when someone finds themselves alone in court. Under the Code of Judicial Conduct, the study states, independent judicial officers are greatly constrained from assisting any party, even those who are not represented by an attorney.

Speaking on general terms and not to any specific court cases, Justice Mary Yu said while some may be able to adequately represent themselves, and choose to do so, others may struggle proceeding pro se. That potentially could lead to an unfair process and an unjust outcome. It may be that someone waives their rights and is unaware, or result with the case not being heard.

“I could see how someone could probably proceed without an attorney… It doesn’t mean somebody knows how to do that or knows how to get things in front of a judge or how to introduce evidence,” Yu said.

For some, especially those unable to speak English, the task could be daunting, leading to someone giving up on their case.

“I’m sure there are many instances where that does happen,” Yu said.

Not enough

And while there are multiple pro bono legal aid clinics operating around the state, Yu noted that an unmet civil legal need still exists for people deemed indigent.

Gerald Kröon, executive director of the Eastside Legal Assistance Program in Bellevue, has seen the impact of civil matters first hand. The organization was founded three decades ago and holds more than 30 clinics every month throughout King County. Clinics for low-income people cover areas ranging from family law, to housing and bankruptcy. They’re put on with the help of about 250 volunteer attorneys.

In the mid 1990s, the program hired its first attorney to work with domestic violence survivors. That progressed to the program now having five full-time staff attorneys who work with cases that stem from domestic violence such as family law issues of parenting plans that may arise from domestic violence.

“We have a mantra that it’s not justice unless it’s equal,” Kroon said. “The fact is, low-income people simply do not have the same access to the justice system as people who can pay for an attorney do.”

And while the organization receives $1.5 million per year in volunteer work from attorneys, it still lacks needed staff attorneys.

The organization turns away far more people than they can take in, Kroon said.

“We don’t have the bandwidth to take all these people in. It’s a state-wide, tremendous problem. It’s the ongoing mantra and we keep beating the drum down in Olympia and in Washington, D.C. We are really underfunded here,” he said.

Since 1975, the standard for “minimum access” to civil legal aid services has been one full-time equivalent attorney for every 5,000 people living at or below 125 percent of the federal poverty level. On the Eastside, Kroon said, the number is closer to 1 for every 20,000.

“Our five staff attorneys — we’re it,” he said. “We’re east King County, and as more and more people move out of Seattle into other areas — more affordable places — those are our clients. We are incredibly understaffed to reach them.”

Fortunately, some added dollars have been provided by the state through the Civil Justice Reinvestment Plan. James Bamberger, director of the Washington State Office of Civil Legal Aid, said the plan has been approved by the Legislature over the last three years and most recently included in the budget.

“As a result of bipartisan efforts in Washington, Legislature made historic gains toward bringing civil justice services to low-income people across the state including the Eastside,” Bamberger said.

The funding will add an additional 20 full-time equivalent attorneys toward the minimum access objective. That is distributed statewide. Even still, Kroon said he has a need for at least 10 attorneys in east King County alone.

“If there’s a criminal problem, you’re guaranteed an attorney if you’re poor,” Kroon said. “And I’ve never understood why we don’t have more guarantees for civil legal aid.”

For Chen, the added help may be too little too late. The trauma has been endured by her child and her family, and she’s navigated the civil legal system almost entirely on her own. Chen’s outcomes are now left in the hands of a justice system that may have already failed her

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