Just months after a new offer of federal funding to help represent parents in child welfare cases, a commission established by New York’s chief judge has called for statewide guarantees of well-funded legal counsel and a state-level office to ensure that promise is being lived up to.
In New York, “the right of parents to publicly-funded legal representation in child welfare cases is well established,” wrote Karen Peters, a recently retired family court judge and chair of the Commission on Parental Legal Representation, in a preface to the full report. But, she noted, this counsel is not always provided, or the counsel is “over-worked and overwhelmed.”
“The longevity of the crisis validates our resolve that prompt action by the state is required to transform child welfare parental representation,” concludes the report.
The Gov. Andrew Cuomo-appointed Chief Judge, Janet DiFiore, who established the commission and received the report, endorsed many of its recommendations.
“The commission’s recommendations – transferring to the state fiscal responsibility for representation in child welfare matters; increasing assigned counsel rates; and adopting caseload caps for attorneys in this area – will not be an easy lift, but we are fully committed to seeing them through,” DiFiore wrote, in an annual address on the state of the courts in New York. “
The report comes on the heels of a policy shift in federal child welfare funding that could help states pay for legal assistance to both parents and children in child welfare cases. Since 2004, the Department of Health and Human Services (HHS) had limited legal fee payments to the lawyers representing child welfare agencies in court. In late December, that policy was reversed, opening up a 50 percent match for legal fees through Title IV-E, the federal entitlement for child welfare services.
Depending on how many states take HHS up on the offer, the policy shift could open up millions of dollars to support legal help to vulnerable families.
The commission was established by DiFiore a year after New York Gov. Cuomo (D) vetoed a bill that would have expanded state funding and oversight for indigent criminal defense and parental defense. The bill passed unanimously in a Democratic-controlled State Assembly and Republican-controlled State Senate.
In his veto message, though, Cuomo warned of potentially hundreds of millions of dollars in costs that would “transfer to the taxpayers of this state an entirely new obligation to pay for any and all existing expenses related to general defense legal work, far beyond representation of indigent criminal defendants.”
The State Bar Association vigorously objected to this accounting. Cuomo later signed on for the criminal defense side improvements alone, while the issue of parental representation in Family Court was deferred to be studied by Peters’ commission.
The commission reaffirmed New York City’s reputation for having some of the best legal services available to parents involved in the system, but found a more erratic track record in the state’s other 57 counties. Along with subpar compensation and too-high caseloads for parent attorneys, the commission expressed concern that parents without lawyers were more at risk of losing custody of children early in a case.
The commission’s first recommendation is guaranteeing that counsel is assigned to parents earlier in the case, when an investigation has been initiated, as opposed to at the first court appearance. Among children taken into foster care at an initial removal hearing between 2015 and 2018, 12 percent of the cases involved a parent who was not represented in court.
“The data confirms the urgent need to ensure that parents have representation in advance of the first appearance in court,” the report said.
The proposed change would mean counsel was involved at a point in the case when reasonable efforts to prevent foster care removal are supposed to be made – a requirement that several family preservation advocates have argued is often ignored.
“Less than 1 percent of appellate case law deals with the reasonable efforts to prevent removal issue,” said former judge Leonard Edward, in a recent op-ed published by The Imprint. “That means that attorneys are not challenging the ‘reasonable efforts’ findings judges are making at the initial hearing. The issue is not being litigated. On the other hand, over 98 percent of appellate case law deals with the reasonable efforts issue after a court has terminated parental rights.”
The commission also recommends limiting the caseload of parent attorneys to 60, and a doubling of hourly attorneys fees from $75 to $150.
“It is evident that the need to increase the number of attorneys on the assigned counsel plan is pressing, if not desperate,” said Judge Robert Mulroy, president of the New York City Family Court Judges Association, in testimony to the commission. “The best way to accomplish this is by increasing both the hourly rate.”
To ensure this all happens, the commission proposes that the state take on the responsibility for funding a large enough share of parental representation costs to ensure quality never falls below a standardized floor for quality. This would be managed and monitored through the establishment of the State Office of Family Representation. The report also gave a high-profile endorsement of the so-called holistic or multi-disciplinary representation model championed by New York City organizations like the Center for Family Representation, which includes consistent access to social workers, peer support and cross-discipline legal expertise (i.e., housing, criminal law) for accused parents.
Chief Justice DiFiore supported the creation of a state-run counsel system, and endorsed the higher hourly pay and caseload limits in her address this week. She did not appear to explicitly back the guarantee of counsel earlier in cases, the commission’s first recommendation.
“The commission’s recommendations … will not be an easy lift, but we are fully committed to seeing them through,” DiFiore said in her address. “We will carefully evaluate the complex policy and fiscal implications of the commission’s recommendations and develop a preliminary plan” to implement them.
The commission included 19 members, including eight active judges, several attorneys and nonprofit leaders, and Jeannette Vega, a parent advocate training director for RISE Magazine. In the fall of 2018, it conducted four public hearings and convened for private meetings three times.
“The commission concludes that a complete transformation is urgently needed in New York’s publicly funded system of parental representation in child welfare matters,” the report said. “Testimony provided to the commission made it clear that inadequate representation of parents has a particularly pernicious impact in state intervention proceedings: it can cause the unnecessary separation of children from their families.”
John Kelly contributed to this article.