Washington Lawyer - June 2020 - 6

FROM OUR PRESIDENT

FINDING HOPE
& SILVER LININGS

D
Photo: Joe Shymanski

Connect
with Susie:
shoffman@dcbar.org

It has been an incredible
privilege and honor to
serve in this role and
to get to know many of
the multifaceted, skilled,
and dedicated members
of our Bar.

o you recall where you were
and what you were doing on
9/11 when you heard the news
about the World Trade Center
bombings? Or when you heard
about the first COVID-19 death? You
most likely do and may remember
other random details of those days,
like how you returned home and
possibly even what you ate for
breakfast. Psychologists say we
remember more keenly the details
of events that are laden with
emotion, whether it's intense
sadness or joy.1

I experience a similar phenomenon regarding
my past cases and clients. Of the many I've
handled over the years, there are those that
are seared into my memory. One such case
involved "Diane," a woman living with AIDS,
and her mother, "Joan," in the mid-1990s. It was
an era in which AIDS was ravaging the region,
and an HIV-positive diagnosis was likely a death
sentence. At Whitman-Walker Health's monthly
estate planning clinic, I was a pro bono attorney
assisting people with AIDS in drafting wills,
powers of attorney, and, in the case of many
of the women clients, helping them provide
for their most precious asset - their children.
At that time, a will or other document was not
enough to provide for future custody of
children if the father was unlikely to step
forward to parent the child. Instead, it necessitated filing a custody case on behalf of the
proposed caretaker in D.C. Superior Court and,
often, multiple court hearings.
An associate and I represented Joan, the
maternal grandmother, in filing for custody of
Diane's only child, her four-year-old daughter,

WASHINGTON LAWYER

JUNE 2020

"Alice." If custody were granted, upon Diane's
death the maternal grandmother would be able
to continue to care for Alice and access benefits
for her. Because Alice's father was deceased, the
custody case would be proceeding as uncontested on the court's "consent calendar," which
involved only a brief ex parte hearing before
a custody order could be issued.
On the day of the hearing, we were surprised
to see Diane and her mother with little Alice in
tow. Since the hearing was expected to be
brief, I offered to sit with Alice in the witness
room rather than check her into the court's
child care center while my colleague conducted the hearing with Diane and Joan. As
I tried to entertain Alice, doodling on a sheet
of paper, she asked fretfully about what was
happening in the courtroom. I tried to allay
any fears but quickly changed the subject
because I had no idea how to tell a child that
they were making legal preparations for her
mother's death. Even more sobering was
my knowledge that Alice herself had tested
positive for HIV. In the end, we secured a
custody order for our client, but instead
of relief and joy, there was only a matter-offactness about our "victory." Even for an
eternal optimist like me, I could not find the
silver lining. I felt I had hit rock bottom.
Fast forward several years for a silver lining.
Motivated by the angst of terminally ill clients
who were having to prematurely give up legal
custody of their children, a group of dedicated
legal services attorneys from Whitman-Walker,
the Consortium for Child Welfare, the Legal Aid
Society, and other organizations came together
to work on "standby guardianship" legislation
that was ultimately passed by the D.C. Council in
April 2002.2 The preamble to the law recognized
that "[e]xisting custody law does not provide
adequately for the needs of a parent who is terminally ill, or who is periodically incapable of
caring for the needs of a child due to the parent's
incapacity or debilitation resulting from illness,
and who desires to make long-term plans for the
future of a child without terminating or limiting
in any way the parent's legal rights."

Washington Lawyer - June 2020

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