Movement to Stem Family Separation in Child Welfare Gains Momentum

New York University law professor Martin Guggenheim has been the at the center of a decades-long battle to improve legal representation for parents in child welfare proceedings. Photo courtesy of NYU

On Thursday, scores of attorneys, judges and other child protection professionals descended on Washington, D.C., for the American Bar Association’s National Conference on Parent Representation.

The conference’s name is suggestive of the family justice revolution brewing within child welfare law. The courtrooms in this system are witness to some of the most consequential decisions in all of American jurisprudence, places where families are ripped apart, put back together and sometimes, through adoption, made anew.

Despite these high stakes, at least half of the child welfare courts in America are closed to the public or media, obscuring a corner of the law where a growing chorus of attorneys, advocates and academics say parents are regularly deprived of their due process rights, forever destroying countless families.

A lead voice in that chorus is a man by the name of Martin Guggenheim, who the American Bar Association selected to keynote this week’s conference. From his perch as a law professor at New York University (NYU) and co-director of the school’s Family Defense Clinic, Guggenheim has — over decades now ­— trained battalions of parent attorneys and reached countless more through his forceful writing.

At the vanguard are Eliza Patten and Zabrina Aleguire. Both participated in Guggenheim’s clinic at NYU, and they now co-direct the San Leandro, Calif.-based East Bay Family Defenders, a new firm representing more than 1,200 parents caught up in Alameda County’s juvenile dependency courts.

In discussing the conference and Guggenheim’s leading role, Patten said that the perspective he had carried all these years “had won the day.”

A Long Time Coming

Earlier this year, Guggenheim penned an article deriding the preeminent membership organization for attorneys who represent children in the child welfare system: the National Association of Counsel for Children (NACC). In a sign of the rising prominence of parents’ rights in child welfare law, the article was included in a special issue of NACC’s own Children’s Legal Rights Journal, published to commemorate the organization’s 40th anniversary.

Guggenheim quickly dispenses with a celebratory tone. Instead, he casts NACC — in its early years — as an “active voice seeking new, robust child protection laws calculated to find more abused children and ensure that states bring abused children into the judicial system so they could be protected from harm.”

And he goes further, writing:

“NACC deserves an important measure of criticism for ignoring and remaining silent about several aspects of child welfare practice in the United States which have been deeply destructive of poor children and their families.”

Despite the harsh tone, Guggenheim moderates his stance by the end of the article, zeroing in on an important reckoning with an organization he deems a leading player in child welfare’s broader assault on families. He cites a passage in the 2017 edition of NACC’s Redbook ­— a regularly updated legal guide for child welfare attorneys – that was penned by Marvin Ventrell, who once served as the group’s executive director.

In it Ventrell writes:

“Our zeal to protect children, to be ‘child savers’ once again, and perhaps our failure to value ‘adequate parenting’ over removal, taught us one of our biggest lessons. Our efforts can and sometimes do harm children.”

This acknowledgement leaves Guggenheim “genuinely thrilled,” and leads him to conclude that “it cannot be too soon for children’s lawyers genuinely committed to child welfare and children’s rights to regard the parent defender movement in the United States as their most important ally.”

As Guggenheim wrote these words that collaborative sentiment was about to yield a momentous federal win for family representation.

The Stage is Set

In December, the Children’s Bureau, a federal agency that oversees child welfare policy, quietly changed a key rule, allowing federal funds to now pay for the representation of both children and parents. The estimated drawdown in California, Colorado and New York City alone could exceed $100 million, meaning stronger representation throughout the child welfare system.

This landmark development was the result of a combined advocacy effort involving both children’s and parents’ attorneys.

The rule change augers a sea change in child welfare. Most notably, swelling the ranks of parent defenders’ promises to help stop the unnecessary separation of families, and reduce the number of children entering foster care.

Take this wholly unscientific, but compelling example. New York City and Los Angeles County have similar general populations: 8.6 million in the former and 10.2 million in the latter. But New York is home to roughly 8,400 children in foster care, while L.A. has more than 18,000. Why the difference? In part, because of New York’s renowned history of top-flight parental representation.

Guggenheim’s speech is entitled: “Something Odd Happened Last Year: It was a Great One for Family Defenders.”

We can’t wait to hear what he has to say.

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