When Rare Language Court Interpreters Can’t Be Found
Legal Interpreter Services in Uncommon and Exotic Languages
There is a growing demand for Anuak, Kunama, Sinhala, Nepali, Tigrinya, Dinka, Tibetan, Malayalam, Mongolian, Oromo, Armenian, Telugu, Tagalog, and other uncommon, rare and exotic foreign language interpreters in civil cases. Quite often the courts are unable to locate court interpreters in such rare languages. It is long-standing interpretation of the constitution’s due process clause that a criminal defendant has a right to understand the proceedings, which, in the case of a defendant without English fluency, requires appointment of a competent interpreter. See United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973); United States ex rel. Negron v. New York, 434 F.2d 386, 388 (2d Cir. 1970).
But what rights are afforded in civil cases to parties with limited English proficiency? Despite the fact that Title VI of the Civil Rights Act of 1964 requires recipients of Federal financial assistance to take reasonable steps to make their programs, services, and activities accessible by eligible persons with limited English proficiency, in an alarming report by the Brennan Center for Justice, they observed a huge discrepancy between legal requirements and common practices:
[Nearly] 25 million people in this country have limited proficiency in English (LEP), meaning that they cannot protect their rights in court without the assistance of an interpreter. At least 13 million of those people live in states that do not require their courts to provide interpreters to LEP individuals in most types of civil cases. Another 6 million live in states that undercut their commitment to provide interpreters by charging for them. And many live in states that do not ensure that the “interpreters” they provide can speak English, speak the language to be interpreted, or know how to interpret in the specialized courtroom setting. Many of those states are violating Title VI of the Civil Rights Act, which requires state courts receiving federal assistance to provide interpreters to people who need them.
In today’s blog post, we’ll address a variety of civil cases in which lack of interpretation services in rare languages failed to facilitate the parties’ access to justice.
Interpreters in Civil Cases Involving Parental Rights
In cases where parental rights are at stake, courts have generally recognized greater protection of the right to participate in court proceedings with interpretive assistance. In a recent New Jersey case (In re J.R.R.), a mother and father were charged with the abuse and neglect of their ten-month-old son Gabriel. Because neither parent spoke fluent English, interviews and testimony of both parents were facilitated through a court-appointed Popti interpreter (Popti is a Mayan dialect from Guatemala). Based on the complete factual record, the family court determined that Gabriel had been abused and neglected and that his parents had been his sole caretakers when he suffered his injuries. The court then shifted the burden of persuasion back to the parents to establish that they were not culpable. Both parents appealed, arguing that the trial court had used the wrong legal standard; the decision was reversed and remanded for further proceedings.
Fundamental Unfairness of an Unqualified Interpreter
Our next case is a dependency proceeding from Washington (In re Dependency of J.E.D.A.) in which the state placed JEDA into protective custody; the case was complicated somewhat by the fact JEDA’s aunt Helerina was caring for him but was not in fact his legal guardian. The state then filed a dependency proceeding, naming Helerina as a party to the case. After realizing that JEDA’s legal guardian was someone else, they moved to dismiss her, and she opposed.
Because Helerina is a native Micronesian and had limited English language proficiency, she testified via a Chuukese interpreter. Although state law generally requires state certification of interpreters, Washington state does not have a process to certify Chuukese interpreters.
After she was dismissed from the case, Helerina appealed, arguing that her Chuukese interpreter was ineffective. Citing state statutory guarantees for civil access to interpreter services, the court of appeals pointed out that before relying on noncertified interpreters, the court must first determine that the proposed interpreter: (a) Is capable of communicating effectively with the court or agency and the person for whom the interpreter would interpret; and (b) Has read, understands, and will abide by the code of ethics for language interpreters established by court rules.
Because the trial court made no investigation of the Chuukese interpreter’s skill or qualifications, the dismissal of Helerina from the underlying case was reversed.
Fundamental Unfairness of Partial Access to an Interpreter
Our next case comes from a Texas proceeding (In re A.M.M.) where a mother, F.M., had her parental rights terminated due to her failure to complete court-ordered services. Mother was a Spanish speaker with limited English proficiency. But during the proceedings, her access to interpretation services was spotty at best. Specifically:
On the first day of a three-day trial during which F.M. participated via Zoom, she requested an interpreter. The trial court notified her that she could only get one for her own testimony, but not for the rest of the proceedings. Despite her objections, the hearing proceeded without a Spanish court interpreter for the first six witnesses, but the judge later located a Spanish interpreter who was brought in for the last two witnesses presented that day. On the second and third days of trial, the Spanish interpreter was present only for about half of the proceedings—F.M. lacked a Spanish court interpreter for understanding the testimony of ten of the state’s fifteen witnesses.
The appellate court found that although they recognized the importance of meeting statutory deadlines and resolving cases with expediency, “we cannot allow a deadline to be the reason to violate a parent’s rights”. Because she lacked a Spanish interpreter during the majority of the proceedings, the court of appeals reversed the decision to terminate her parental rights.
Inability to Find an Interpreter Doesn’t Eliminate Due Process Rights
Our next case comes from a California (In re J.P.) where a father, A.S. had his children removed from his custody due to his alcohol abuse. The court ordered him to participate in a drug and alcohol program, a 12-step program, and a parenting program. However, A.S. was an immigrant who only spoke Burmese and Karen, and Department of Children and Family Services (DCFS) was unable to locate any treatment options for the father that were given in either Burmese or Karen he spoke and understood. Because he wouldn’t be able to understand any English language treatment programs, he objected to the DCFS case plan.
Despite this, the court signed the case plan and ordered the father to participate in the programs. The father filed an appeal arguing that the trial court erred by ordering him to complete programs that his language barrier prevented him from completing. The court ultimately found that it was an abuse of discretion to order a parent to do something they cannot reasonably participate in as a condition of regaining custody of his children, so they reversed the portion of the order requiring father to participate in those programs.
Court Interpreting Services, Regardless of How Rare a Language Is
One of the essential aspects of ensuring fair and equal access to justice for individuals with limited English proficiency is providing interpreters in court proceedings. This is especially important in parental termination cases, where the fundamental constitutional rights of parents and children are at stake. Without a court interpreter, individuals may not be able to understand the charges, evidence, and legal options that affect their lives and families.
Contact legal translation, interpreting and expert witness services company All Language Alliance, Inc. to hire competent interpreters in hard-to-find, exotic, rare foreign languages, also known as languages of lesser (limited) diffusion, and in rare Chinese dialects and regional languages.
In re JP, 14 Cal. App. 5th 616, (Ct. App. 2017).
In the Interest of A.M.M., 2021 Tex. App. LEXIS 8395
In re Dependency of J.E.D.A., 413 P.3d 574, (Court of Appeals of Washington, 2018).
Child Protection v. JR-R., 258 A.3d 1094, (2021).
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