New York City’s brand of wrap-around legal representation may not prevent the removal of children from their families. But they might be getting home much faster, and without any risk to their safety.
A much-anticipated study of parent representation released this week found that for parents represented by interdisciplinary law offices (ILO) – which include lawyers, social workers and parent advocates – youth spend about four fewer months in foster care than in cases represented by panel-appointed “solo practitioner” lawyers.
“I’ve supervised a lot of evaluations of interventions where you see really small differences. It can be frustrating in a field like child welfare,” said Tim Ross, founder and managing partner of Action Research and a co-author on the study. “But here you can see really meaningful impacts. Four months is huge for a kid, for the family, and huge for the public.”
New York University Law Professor Martin Guggenheim, a study co-author and one of the original architects of the interdisciplinary model, heralded the study as a major step forward for the cause of robust parent representation.
“My plan has always been to try to persuade the powers that be that family defense is their best friend, and that we are a preventative and reunification service,” Guggenheim said, in an interview with The Imprint. “The federal and local governments should now invest in the right kind of family defense.”
The study used a quasi-experimental approach and looked at data for 9,582 families and 18,288 children who came into contact with New York City’s child welfare system from 2007 to 2014. It compares the outcomes related to families who are assigned to an ILO, often referred to locally as a parent defender office, to those represented by panel-appointed attorneys.
The defender offices are funded through contracts with the city that can be renegotiated if the caseload exceeds an agreed-upon ceiling. Panel attorneys are paid $75 per hour, with a per-case ceiling of $4,400, rate that has not increased in 15 years to the chagrin of advocates and judges across the state. New York State, though, does guarantee at least a lawyer for parents and children in child welfare cases, unlike other states.
The city’s interdisciplinary law offices provide basic legal counsel to parents who are assigned to them. But they are also staffed with social workers and parent advocates who work with the attorney to assist and advocate for the parent. The staff of an ILO can also include experts on criminal justice, housing and immigration issues, or professionals trained to do “troubleshooting” on public assistance eligibility or education issues.
Panel attorneys tend to be more seasoned than the typically young staff at interdisciplinary organizations, the study notes. The ILO “theory of change,” it says, is in large part attributable to the ability of the social worker to represent the interests of the parent early on in a case: advocating for a service plan that works for their schedule, and helping them connect with appropriate services.
“That’s something panel attorneys in New York City can petition for but it takes a lot of time and effort to do that. Many of them are very good, and very experienced, but they struggle with time, they are busy people,” said Lucas Gerber, the study’s lead author and a staff director at Action Research of Brooklyn. “ILOs can also cover for each other if someone takes a sick day, which helps cases go quicker, and each provider has a centralized case management system, so they have that institutional knowledge that is harder to develop.”
The model began with the Center for Family Representation, founded in 2002, and has grown to include three other city providers: Bronx Defenders, Brooklyn Defenders Services and Neighborhood Defender Service of Harlem. Those four providers received a total of $32 million in fiscal 2019, according to the New York City Mayor’s Office of Criminal Justice.
By 2007, defender officers were assigned to about half of cases, which Guggenheim says has grown to nearly 90 percent in certain areas of the city.
Study authors presented three hypotheses: That the children of ILO-represented families would experience fewer removals to foster care, stay in foster care for a shorter amount of time, and that they would be less likely to experience future abuse or neglect.
The study found two of those to be true. Limiting the analysis to just the youths who entered foster care, those involved with ILO cases exited foster care 118 days – or about four months – sooner than kids of parents represented by panel attorneys.
“Four fewer months in foster care can mean the difference between spending a birthday or Thanksgiving Day together, celebrating a graduation, or simply 118 days of missing each other,” said the report.
Four years after the initial removal, 65 percent of children had been reunified in ILO cases, compared to 60 percent of those in panel cases. Reunification occurred 43 percent faster in ILO cases in the first year and 25 percent more often in the second year.
“I think it provides compelling evidence that high quality legal representation – done in an institutional setting – can dramatically reduce the number of days a child unnecessarily spends in foster care,” said Vivek Sankaran, clinical professor of law at the University of Michigan, in an e-mail to The Imprint. “Given what we know about the impact of removal, states need to start investing in this type of support for families immediately.”
Study authors estimated that the reduction of foster care spending under full, citywide use of ILO providers would conservatively save the city $40 million per year.
Exits from foster care to guardianship with a relative or other kin were rare, accounting for only 4 percent of all outcomes in a four-year range. But finalization of those guardianships occurred twice as fast in cases with an ILO provider.
“While there are vigorous discussions concerning the circumstances in which children should be reunified, adopted or placed in guardianship, it is universally held that foster care stays should be as short as possible while ensuring safety,” the study said. Notably, the section cites individual research by Guggenheim, a staunch family preservation advocate, and by Betsy Bartholet, director of the Child Advocacy Program at Harvard University, who has championed a greater use of removals and foster care in child welfare.
The study also backed up the notion that safety would not be jeopardized with more robust legal representation of parents. Measuring the existence of a subsequent report of confirmed maltreatment within two years, “the data did not detect any difference in safety outcomes when families received ILO representation as compared to panel representation.”
But the ILO approach did not yield any discernible impact in keeping children in their homes after a family became involved with the system. The study “did not support the hypothesis that ILO representation decreased children’s chances of entering foster care.”
Sankaran said he was “a little surprised” at the lack of impact on that metric. But, he pointed out, New York City has an “unusually high number of cases where court petitions are filed but kids are never removed.
“I’m thinking that parents’ counsel might have a bigger impact in other jurisdictions where agencies are filing principally to remove kids,” Sankaran said.
Study authors suggest that New York City’s high rate of emergency removals could be making the data on this outcome murky. “Many children who enter foster care do so on an emergency removal provision, which gives child protective workers broad leeway to remove children from their homes prior to court action,” the study said.
Between 2016 and 2018, the city executed 5,243 emergency removals, according to the Administration for Children’s Services (ACS), 47 percent of all removals in the city. Up to 25 percent of those children are returned home after a judge reviews the circumstances, according to recent comments by ACS Commissioner David Hansell.
An emergency removal is made before a lawyer is assigned to a family. The study did not include a separate analysis of the other removals, and possible differences in outcomes based on ILO or panel representation.
“As these children may be recorded as entering foster care in the administrative data, parental attorneys may not be fully able to impact foster care entry as this study had defined it,” the study said.
Guggenheim said that a significant contributor to the defender offices’ impact on reunification was those offices successfully pushing back on emergency removals.
“When you talk about getting children home within six months, defender lawyers do so 27 percent more often,” Guggenheim said. “Ultimately it was 43 percent more often in the first year.”
The data in the study excluded any cases in Staten Island, where there are no interdisciplinary offices, and for any judges who only saw cases involving ILO or panel-appointed attorneys, but not both.
The New York City study echoes the findings of a previous study, led by Mark Courtney of the University of Chicago, that looked at Washington’s parent representation program (PRP), through which the state supports quality counsel with limited caseloads, training and the support of social workers.
The Washington research team compared regions of the state covered by PRP with regions that had not implemented the program. The study found that, all else being equal, the exit rate to reunification was 11 percent higher in PRP-covered counties.
Since the study, PRP has been expanded to cover the entire state.
Guggenheim called the Washington model “fabulous,” and said it represents a more manageable way to export the components of New York City’s defender offices to suburban or rural settings.
“The Washington study jump-started the field in that it explored the question … might better trained lawyers with access to social workers and case caps, improve child welfare practice?’” said Guggenheim. “But the study has important limitations because it was not comparing lawyers in the same county and it was comparing a pilot program with a system of parental representation that many regarded as inadequately funded and staffed. The Washington study showed that better training, case caps, and providing parents’ lawyers with access to expert resources result in better outcomes as compared with cases without them.”
The New York study, Guggenheim said, “was more rigorous. It not only compared cases within the same county heard by the same judges. It also was comparing one kind of excellent lawyering (highly paid, experienced and well-trained panel lawyers) with a different model.”
This study did include some limitations on the data, put in place to isolate those two models of representation. It only includes data related to the first case for any parent, and excludes all cases in which there were two parents involved, where both an ILO and panel attorney could have been involved.
“I am a big fan of the interdisciplinary model in principal, and the study finds some evidence that the model that they implemented in New York compares favorably to just assigning panel attorneys to represent parents,” said Courtney, a researcher and professor, who led the previous research on Washington State. “But a critical reader needs to seriously consider the limitations—we should be cautious and need more research, as they say at the end.”
This study’s findings come on the heels of a major federal policy shift that could open up millions of dollars to expand and improve parent representation. In December, the Children’s Bureau division of the Department of Health and Human Services announced that the nation’s child welfare entitlement program – Title IV-E of the Social Security Act – could be used to pay for the legal fees of parents and children involved in child welfare cases.
Before the decision, use of IV-E for those legal fees was expressly prohibited, though child welfare agencies could use the entitlement to help pay for their own attorneys.
The study is entitled “Effects of an interdisciplinary approach to parental representation in child welfare.” It is available online now, and will appear in the July 2019 issue of the research periodical Children and Youth Services Review.
Note: This article was updated with a link to the study on May 8, 2019.
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