Documentarian Karen Grau has been filming dependency court proceedings for decades. In her experience, there’s one variable that makes it easy to know early in a case if justice will be served.
“I cannot emphasize enough the relief I have when we’re filming in court, and I see a case come in with an attorney attached,” said Karen Grau, CEO of Calamari Productions. “Or the angst I feel when I see a child walk into court and know that they’re there on their own – don’t understand what the jargon is, don’t understand what’s about to happen.”
Dependency courts, without the use of a jail, prison or probation, are empowered to preside over some of the most significant deprivations of freedom a person can receive. They can keep children from their parents, even confine their movements to institutions or group homes. They can terminate a parent’s rights forever.
And they can do it all without guaranteeing the children and parents one of the only things that matter in court: effective legal counsel.
Most state and local courts have some guarantees of legal support available for kids and parents, even though the Supreme Court has ruled it is not constitutionally required. But child representation is not always provided by a lawyer, and legal counsel for parents often starts after a child has already been removed from the home. And in both cases, advocates say, the operation is vastly under-resourced.
The push to bring federal resources to bear on legal counsel reaped a massive victory in December when a quietly changed policy opened up a federal entitlement to pay for parent and child representation. Before the change, local child welfare agencies could only pay for their own legal fees. Now, those agencies can tap into funds from Title IV-E of the Social Security Act – the federal entitlement for family, foster care and adoption services – to pay for as much as half the cost of counsel for parents and children.
The rule change could mean hundreds of millions of dollars flowing for legal counsel, depending on how many states take advantage of the change. In California alone, advocates estimate this shift could open up $60 million in federal dollars for the state’s child welfare defense budget.
“I’m absolutely thrilled that [the change] includes both groups,” said Amy Harfeld, national policy director at the San Diego, Calif.-based Children’s Advocacy Institute (CAI). “Children benefit when their parents have good attorneys. When all three lawyers in a child welfare case are well trained … there’s no question about the fact that those cases have better outcomes and run through courts more quickly.”
The push toward federal help on family defense was more than a decade in the making. Child and parent advocates seldom united, making separate inroads but ultimately falling short during the Obama administration. Both groups credit Trump’s leadership team at the Administration for Children and Families (ACF) for finishing the job.
The heavier lift – getting states to match and spend those federal dollars on better legal help – may be more collaborative. A partnership forged by advocates for both parents and kids, the Family Justice Initiative (FJI), hopes to take the lead in actually selling this new funding source to state and local child welfare agencies.
“In the past, there were parents’ and children’s groups,” said Leslie Heimov, executive director of the Los Angeles-based Children’s Law Center of California. “This is the first time we’ve spoken with one voice.”
Twenty years ago, Grau got special permission from the Indiana courts to film in family and juvenile court. Since that time, she has shepherded a trove of films and series on kids and court, including “In The Child’s Best Interest,” which won an Emmy and an Edward R. Murrow Award in 2001.
The difference that an attorney makes in a child’s case is unmistakable, she said, defined mostly by what happens before a hearing ever takes place.
“If a child has an attorney attached to their case … that attorney is working behind the scenes to figure out, OK, what’s the next step,” Grau said. “For a child that doesn’t have a lawyer, he or she is … sitting in a foster home, or placement facility … and nothing is happening until that child arrives in court.”
Once court is in session, she said, “Let’s face it, in many courts … it’s like a cattle call. It’s a case every 15 minutes. And a judge really isn’t paying as much attention [to other youth] as they are to the kids that have an attorney present.”
Having a lawyer for child welfare proceedings “is life-changing,” Grau said.
For youth advocates, the fight for federal help on counsel intensified about a decade ago. In 2007, First Star, a nonprofit that helps child welfare agencies prepare older foster youth for adulthood, published a “report card” on state counsel guarantees for kids, which brought attention to the lack of guarantees made in this area.
Twenty-one states received a grade of ‘D’ or ‘F.’ Just five – Connecticut, Louisiana, Mississippi, New York and West Virginia – received an ‘A.’
“Kids’ access to counsel is based on a random act of geography,” said CAI’s Amy Harfeld, who led First Star at the time and through CAI has partnered to produce two more installments of the report card.
Harfeld is one of several advocates who has pushed the past two administrations to free up Title IV-E funds to pay for child representation. The list also includes Don Duquette, founder of the University of Michigan’s Child Advocacy Law Clinic, and Heimov of the Children’s Law Center (CLC), who has been with the organization since 1992.
Another boost came in 2011, when the American Bar Association (ABA) adopted a “model act” for guaranteeing quality legal counsel to children in dependency court. It was the first statement from the legal community’s central association that youth should always be represented by an attorney, not just a guardian or advocate.
The United States Supreme Court made clear in 1981’s Lassiter v Department of Social Services that parents did not have an absolute right to counsel, and that it was the job of trial courts to determine on a case by case basis if a parent was constitutionally required to have counsel. But even then, many states had already included such rights in their own constitutions.
Today, 38 states and the District of Columbia have a categorical right to counsel for parents, according to the National Coalition for a Civil Right to Counsel. In these states, any parent who can’t afford their own attorney will be provided one. In the other 12 states, local courts decide if an indigent parent needs representation.
But those paper assurances belie a landscape in which many parents aren’t guaranteed a lawyer until after children are removed.
“The norm across the country is bad representation,” said Vivek Sankaran, director of Michigan Law’s Child Advocacy Law Clinic, in an e-mail to The Imprint. “Parents’ counsel aren’t paid well at all, have huge caseloads and lack the basic supports that attorneys need to do their work well.”
Even when a lawyer is appointed, parents might meet them just minutes before a critical hearing. And that counsel might have been chosen at random for them through a “panel” system, where interested attorneys queue up to take cases on various payment schedules.
“The panel system is a problem,” CLC’s Heimov said. “That doesn’t mean you can’t be a panel lawyer and do a good job. But this is a hard area for a sole practitioner to cover and keep up with the law. An alternative model might include regional networks or a web-based collaborative to ensure access to multidisciplinary resources.”
Momentum for national attention to parental representation has also built in recent years. Martin Guggenheim, a New York University law professor and one of the most vocal advocates for the cause, worked with Mimi Laver, director of legal representation at the ABA Center on Children and the Law, to establish the National Alliance for Parental Representation in 2006.
The national alliance began publishing regularly updated standards of practice for representing parents that year. Guggenheim and Sankaran would publish a book on the subject through the ABA Book Publishing arm in 2015.
In 2012, the Children’s Bureau convened several state leaders working on the State Court Improvement Program, a 25-year-old federal grant program aimed at helping states better serve families in court. The meeting, which took place in Norman, Oklahoma, paired leaders from several southern states with national experts to discuss what they were (or could be) doing in the area of parental representation.
The meeting yielded a report, “Indicators of Success for Parent Representation,” which highlights the positive outcomes associated with several small-scale efforts in those states to improve legal supports for parents. The report was published by the ABA, with funding support from Casey Family Programs.
The Denver Meeting
Several years ago, Heimov encouraged David Sanders, vice president of Casey Family Programs – the largest philanthropic contributor to child welfare policy – to include the perspective of legal counsel in their work.
“It started with David Sanders and myself having conversations about the fact that Casey Family Programs was missing a critical voice, and that voice was the lawyers,” Heimov said.
In the latter years of the Obama administration, Casey began to embrace that pillar of reform more.
“We must be willing to put the resources behind making parent representation a reality for all,” said Casey CEO William Bell, speaking at the ABA’s National Parent Attorney Conference in 2015. Bell oversaw New York City’s Administration for Children’s Services from 1996 to 2001, as the city was emerging as a crucible for quality parent counsel.
“Attorney caseloads matter just as much as social worker caseloads matter,” Bell told the conference crowd.
In 2016, Casey helped finance a meeting in Denver of about 40 leaders in both the parent and child representation sphere to discuss an agenda for jointly pressing the causes of child and parent representation.
Among the Denver meeting attendees was David Kelly, a former assistant staff director at ABA who joined the Children’s Bureau under Obama as a court improvement specialist.
“On the first morning, David Kelly challenged the room to come together with one unified voice to create a strategic plan,” Heimov said. “The Children’s Bureau and FJI were on parallel paths in our thinking about what parent and child representation should look like.”
From that meeting, the Family Justice Initiative (FJI) was formed, the first advocacy vehicle built to push for quality counsel for both children and parents.
“We all walked out feeling that, as a united front, we should move forward,” said Laver of ABA’s National Alliance for Parental Representation. “With high-quality representation, all of the things that are the same about the causes are more important than what’s different.”
The initiative is housed at the ABA, and funded by Casey. It is led by Heimov; Laver and Prudence Carr, head of the ABA Center on Children and the Law; and Susan Jacobs, founding executive director of the Center for Family Representation, one of three organizations that represent parents involved in the New York City child welfare system.
Days before President Trump was inaugurated, the Children’s Bureau (CB) issued a policy memo expressing the federal government’s view on quality representation.
“CB strongly encourages all jurisdictions to work together to ensure all parties receive high-quality legal representation at all stages of dependency proceedings,” the memo said.
“The ideas developed in Denver laid the groundwork for FJI and were later articulated [in] the comprehensive January 2017 Memorandum,” Heimov said.
The Obama-era memo was mostly a show of ideological support from an administration that had not been swayed to act on unlocking federal funds for legal fees. Harfeld said she never found much traction with most of Obama’s child welfare team on legal counsel.
The late George Sheldon – who briefly led the Administration for Children and Families (ACF), which oversees Children’s Bureau – did attempt to issue policy in support of funding lawyers, she said, but “got shut down internally” by the agency’s counsel.
Kelly, who remained at Children’s Bureau after the transition to Trump, is credited by all advocates as being the most ardent supporter of quality counsel in the executive branch. The path to a change in the Title IV-E entitlement opened up as Kelly, FJI and others won Children’s Bureau Associate Commissioner Jerry Milner to their side, Heimov said. Since joining the Trump administration, Milner has consistently championed the notion that prevention of maltreatment must become a greater federal priority.
“He sees [access to counsel] as part of a bigger vision, as exemplified in the Family First Act, to turn child welfare spending upside down, and if attorneys can keep things moving faster and ensure that families take advantage of needed services, we can reduce number in foster care globally,” Heimov said. “And we agree.”
Milner declined to be interviewed for this column, and ACF would not comment in general on the policy change for this article.
On December 19, the question-and-answer portion of ACF’s Child Welfare Policy Manual was changed with little fanfare, and just an update circulated on a Child Welfare Information Gateway e-mail listserv. But the lackluster release belied the fundamental changes within the seemingly ho-hum “policy manual.”
Section 8.1 of the manual used to say legal services to children or parents was not considered to be allowable under administrative costs. “Only the state agency’s participation in judicial determinations is an allowable cost.”
Now, states will be able to claim legal supports to children or parents as Title IV-E administrative costs as well. Which means a 50 percent match for any state and county dollars contributed to the legal defense of either party.
Getting States to Buy In
Opening up a federal match for legal fees is one thing. Getting states to embrace the idea of paying the other half is an entirely different challenge.
The states and counties with the most to gain, of course, are those that would essentially start from scratch, with no dedicated funding allocated to child and parent representation. The easiest sell will be in states or counties where there is already some form of a dedicated funding stream for child welfare attorneys. Here, the federal funding can either reduce the state’s expenses or help bolster them.
California is one state that appears to be structurally poised to take advantage of the Title IV-E funds. It already has a state-level budget line for legal counsel, and that is distributed to county court systems based in part on the number of child welfare cases handled in each system.
The state spends $136 million on counsel right now, and new Gov. Gavin Newsom’s budget proposes an increase to $157 million. Heimov said she estimates that the state could bring in $60 million in federal funds as a result of this new policy.
Two other systems with dedicated counsel – Colorado and New York City – fund their programs at about $46 million and $32 million, respectively. At a 50 percent federal match for most of that, those two systems plus California would draw down close to $100 million.
Even in states with dedicated offices like these, some bureaucratic maneuvers will be necessary to take advantage of this money. Funds for lawyers flow through court systems, not the child welfare agencies that receive Title IV-E funding from the federal government.
The existing state funds for lawyers will serve as the match for the child welfare agency’s claim for administrative Title IV-E costs. But, somehow, the non-federal funds for lawyers must pass through the child welfare agency in order to be tied to the child welfare agency’s claim for administrative IV-E costs.
Heimov said from her preliminary discussions, it is her understanding this can mostly be accomplished through a memorandum of understanding (MOU) between the California Department of Social Services and the State Judicial Council, which funds child and parent attorneys throughout the state.
FJI leadership plans to push the multi-disciplinary models developed by two of its leaders: the Children’s Law Center of California, led by Heimov, and New York’s Center for Family Representation, which is now led by Executive Director Michele Cortese.
“We anticipate providing a network of lawyers with the tools to do on-ground advocacy,” said Laver. “There’s a lot happening on the ground over the logistics.”
In some jurisdictions, she said, the first wave will be more about selling the idea of better representation than how to execute it.
“First is making sure child welfare agencies understand how important high-quality representation is,” Laver said. “And second is explaining how it leads to better outcomes for children. Better due process is good for lawyers, but [for agencies] it’s about building a body of better child welfare outcomes.”
Click here to read what the research says about the impact of quality legal counsel programs for parents and children.
Note: This story was updated on February 6.
Learn more about the federal rule change on funding legal representation for families in our exclusive webinar, A New Era of Funding Family Justice, with Leslie Heimov and Vivek Sankaran on Feb. 21st. Hosted by John Kelly, Editor-in-Chief for The Imprint.