New Funding Rule Aims to Boost Effectiveness of Legal Counsel in Dependency Cases

In late 2018, the U.S. Children’s Bureau opened up the federal tap for an oft-underfunded corner of the child welfare system: legal counsel for parents, or children, involved in dependency court cases. 

Last week, the bureau went a step further,and endorsed a broader view of legal support that could increase the practice of pairing of lawyers with workers from other disciplines focused on achieving reunifications from foster care. The hope is that the change will speed up reunifications and decrease the amount of time youth spend in foster care.

“There is a lot of bad or mediocre practice out there. We want to help support the best and most effective types of representation possible because that gives us the best chance of ensuring children get what they need and we protect critical parental liberty interests,” said David Kelly, a top adviser to Children’s Bureau Associate Commissioner Jerry Milner, in a joint statement to The Imprint in response to questions. 

Advocates for parent and child counsel said the update could ease the job of selling local systems on an approach that is more expensive, but that the research indicates is more effective. 

“I do think that for many states this may be the nudge they need to pilot or expand interdisciplinary models,” said Joanna Woolman, director of the Institute for Children, Families and Communities at Mitchell Hamline School of Law in St. Paul, Minnesota. “I think Minnesota could certainly take advantage of this in some counties and my hope is that this will happen.”

The recent policy change means child welfare entitlement funds can be used to pay for social workers, parent or child advocates and case investigators to “support an attorney providing independent legal counsel” to parents and children.

Costs related to court-appointed special advocates, often known simply as CASAs, or guardians ad litem, will not be allowed through the newly expanded interpretation.

“A CASA is appointed by a judge to provide information directly to the judge—not to provide legal representation,” Milner said. “The policy specifically covers attorneys … and support staff that help prepare attorneys for the legal representation of a child or parent as part of an independent legal team.”

This decision answers one of the biggest lingering questions from the Children’s Bureau’s previous policy shift, which simply reversed the long-held position that states could only draw down Title IV-E dollars to pay for the lawyers representing child welfare agencies. Advocates hoping to raise the quantity and quality of representation were left wondering if the new permission would include only payments to attorneys, or if money could flow for legal support staff. 

The “support workers” cleared for federal funds by last week’s change – including social workers assigned to ensure that case plans were fair and reasonable, or peer advocates helping keep a parent on track – are at the heart of interdisciplinary approaches to child welfare counsel. Recent studies of interdisciplinary models in parent and child representation in New York City, Palm Beach, Florida and Washington found that linking lawyers to other specialists can increase the rate and speed of reunifications from foster care, and decrease the time spent in foster care for youth who get adopted or live permanently with a relative.

Since the original policy change in 2018, the National Association of Counsel for Children had heard from child welfare professionals around the country seeking clarity on the limits attached to the new funding, said Allison Green, the organization’s legal director, in an email. 

Those inquiries came from law offices, child welfare agencies and judges, Green said, “all curious as to whether Title IV-E funding might be used to build out an interdisciplinary model in places where one does not yet exist.”  

National advocates for counsel for parents and children have forged a united front to push interdisciplinary approaches – the Family Justice Initiative, a project of the American Bar Association – that have promoted the models used by the Children’s Law Center of California and New York’s Center for Family Representation.

“The Children’s Bureau’s announcement … could not have come at a better time,” said Mimi Laver, director of legal representation for the ABA. 

Marty Guggenheim, who helped develop New York’s interdisciplinary model for parent representation, said the change will “allow states to get reimbursement if they choose to become multidisciplinary,” he said, but he believes that most systems still “need to be pushed to do this.” Guggenheim said he would prefer that the Children’s Bureau only permitted IV-E legal funds for systems operating interdisciplinary approaches. 

In 1981, the Supreme Court decided in Lassiter v. Department of Social Services that the state did not have to provide legal counsel to a parent for a proceeding to consider terminating her parental rights. Today, 38 states do include a categorical right to counsel for parents, and 32 states do the same for children, according to the National Coalition for a Civil Right to Counsel. 

But systems do not guarantee counsel, and not every state that guarantees counsel requires that it come from attorneys, which leadership at the Children’s Bureau called an “incredible injustice.”

“That there are still jurisdictions out there that do not provide legal representation to children and parents at all stages of child welfare proceedings is…contrary to the well-being of children and family integrity,” Kelly said.  

The new change to the Child Welfare Policy Manual can be found in Question 32 under Section 8.1B of the federal Child Welfare Policy Manual. It is the second significant IV-E funding update through the manual this year. In late February, the bureau announced it would permit certain adoption savings to count toward state matching for extended foster care, kinship guardianship and services covered by the Family First Prevention Services Act. 

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