In Child Welfare Cases, Just Any Old Lawyer Won’t Do

During a virtual town hall last week, parents asked gut-wrenching questions to child welfare leadership.

“When can I see my kids again?”

“I was having unsupervised visits with them. Why can’t they come live with me?”

“Will the court terminate my rights even if I can’t get services?”

The pain and fear underlying each question was obvious. Throughout the meeting, I resisted the urge to simply reassure each parent that things will be OK, and that everyone in the system would be empathetic to these concerns. I felt myself dreaming of the system I wished I had, only to remind myself of the system I actually have. 

Instead, I responded with a rote answer, “Call your lawyer. This is the time that they need to be fighting for you more than ever. This is why they are there.”  

Then I got the question I dread most. “I can’t reach my lawyer. He won’t return my calls. What should I do?”  

My heart sank. The professional assigned with the sole responsibility to advocate for a parent in need was not responding to his client’s calls. And I had no good answer for how to fix that. Because my state, like many, has no good answer to that question. 

Since the onset of Covid-19, much has been written about its disparate impact on different populations. Here’s another one to add to the growing list – the availability of high-quality legal representation in child welfare cases. 

In some parts of the country, such as New York City, Los Angeles or Colorado, parent and child lawyers working for nonprofits and government agencies have heroically sprung into action to protect the rights of their clients. They have challenged blanket prohibitions against in-person visitation. They have forced courts and agencies to reunify children where no safety concerns existed. They have gotten governors to extend how long older youth can remain in foster care to protect them from the added vulnerabilities of entering a world in crisis. They have obtained moratoriums on termination of parental rights proceedings until courts fully reopen. 

Their robust advocacy for clients provides the answer for why every child welfare system needs high quality legal representation. Their efforts should end any debate over our system’s need for this.

But this type of advocacy is not the norm. Rather, in most parts of the country, parents and children are randomly assigned a lawyer, many of whom practice by themselves and get paid by the case, or the hour. These attorneys often lack the training and supervision to do the work, and don’t have the support of colleagues to share ideas and resources with. 

While they might be knowledgeable about child welfare law, they may not have expertise in related areas of law, like public benefits, housing or custody, knowledge of which are crucial in these straining times. And though they may earn a living from this work, they might need to take huge numbers of cases to cobble together enough funds to call an income. 

In other words, we have created the conditions that contribute to the phone calls of parents in crisis going unanswered.

We must see this crisis – which has starkly revealed our system’s shortcomings in so many ways – as an opportunity to remedy this injustice. Fortunately, thanks to changes in federal policies, we have additional resources to do so. Last December, the Children’s Bureau changed its policy guidance to permit states to draw down federal foster care funds to support legal representation for parents and children. Just this week, the Bureau clarified that these funds could also be used to compensate other professionals within the legal team – parent partners, social workers, investigators, etc. In other words, federal funds are now available to support the high quality multidisciplinary legal representation that all families deserve.

But state child welfare agencies – working closely with their courts – must use these funds in an intentional way to transform legal representation. Here’s how. 

First, each state must create institutional legal providers to represent both parents and children. We have tolerated an inadequate ad hoc system of legal representation for far too long. Families deserve to be supported by organizations, filled with trained and salaried lawyers who can fight for them on both case and systems levels.  

Second, agencies and courts should work with law schools within their states to create and fund law school clinics representing parents and children. The expansion of institutional legal providers will increase the need for more young lawyers to enter our field.  

From my own experience both as a student in a child advocacy clinic and now directing one, participation in a law school clinic can persuade students that our field is both intellectually challenging and emotionally rewarding. Far too few law students even think of child welfare as a legal field because they have no exposure to it within law school. Both creating clinics in law schools and giving students a path to work at a child welfare law office after graduating will change this.

Finally, until each state creates institutional providers of legal representation, states must create transparent systems to hold a lawyer accountable when they don’t adequately support their clients. Parents and children must have an opportunity to share concerns about their legal representation to someone other than the judge in their case who controls the fate of their children and who might be close to the lawyer on the case. 

This could be an entity within a state court administrative office, or another government agency. That entity must have the authority to investigate the allegations of inadequate representation and must be able to take action. 

We can no longer tolerate the rampant stories in our field of lawyers not responding to their client’s concerns. We must be able to provide an answer to that parent whose lawyer doesn’t call her back.   

This pandemic has provided a long-overdue jolt to our system. This jolt gives us the chance to re-examine our broken system and to reimagine how we can better support families. Strong legal representation by institutional providers is a first step.

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