Despite evidence that foster kids with lawyers are more likely to reunify with their families and stay in the same school, Minnesota and more than a dozen states fail to guarantee children have lawyers after CPS enters their lives, according to a report released today.
In Seen, Heard, and Represented: A Policymaker’s Guide to Counsel for Kids, the National Association of Counsel for Children explains why children need quality attorneys, and how states that do not provide them can develop legal representation programs.
“In child protection court proceedings, attorneys typically represent the child protection agency and parents. As recognized parties to the case, the child protection agency and parents present and challenge evidence through their attorneys,” the report stated. “The same is not always true for children — the very person whose needs and interests are at the heart of the case.”
By challenging removals from home that are based on insufficient evidence, children’s attorneys typically fight for “a child’s right to be with their families,” the report stated. They also hold child welfare agencies and the courts accountable, ensuring that when children can’t return home, another safe, permanent home is found.
There is no federal statute or court ruling requiring counsel for children in child protection proceedings, so the right and access to representation varies among states.
In Minnesota, state law allows a child 10 or older to request a court-appointed attorney. And in 2017, a law went into effect, requiring child welfare workers to notify children of that right to an attorney.
But it isn’t enough, Natalece Washington, policy counsel at the National Association of Counsel for Children, said during a press briefing today. Legal counsel must be guaranteed to children of all ages, she added.
“There are so many rights available to children in the foster care system that just go unaddressed, unenforced and no one is held accountable, because no one is speaking up for that child and their interest,” Washington said. “So that’s the role of the lawyer and that is why it’s critical for every child regardless of age to be represented by counsel.”
Like Minnesota, several states, including Alaska, Florida, Illinois, North Dakota, Texas and Washington, do not guarantee the right to counsel for all children.
Denied due process as “their lives and futures hang in the balance,” can be devastating, Washington said.
“Children experiencing the foster care system are separated from their homes, their families, their siblings, communities, pets, belongings and so much more. They may be placed in locked facilities, medicated against their wishes or forced to spend the night in administrative offices or hotel rooms,” she said. “This vulnerable position requires children to have an advocate to protect their legal rights, advance their interests and hold the state accountable.”
The report released today cites research demonstrating that when they are appointed high-quality legal representation, children have fewer placement changes, fewer unnecessary school moves and faster exits from foster care. In a 2008 University of Chicago study, for example, researchers found that children represented by attorneys in Palm Beach County, Florida had “significantly higher rates” of leaving foster care for a permanent home than children without access to legal counsel.
More recently, in 2021, researchers at the Washington State Center for Court Research found that when compared to foster children without attorneys, children appointed legal representation were 45% more likely to reunify with their parents, 30% less likely to experience changes in foster homes and 65% less likely to experience unnecessary school moves.
The National Association of Counsel for Children report launched a public campaign in 2021 to ensure that children and youth involved in child protection proceedings are guaranteed legal representation. The report outlines a model statute for legislators that advocates hope will be adopted in states that fall short on representation, and identifies possible funding streams to support legal services for children, such as how to draw down federal Title IV-E dollars. The association also recommends a centralized children’s law office to ensure access to full-time staff attorneys.
Jay Miller, dean and research professor in social work education at the University of Kentucky, spent time in foster and kinship care as a youth. Miller spoke at the press briefing, highlighting the importance of giving young people a voice in the legal process.
“If we are going to get to a system that is not just something we do to kids, but rather is a service that supports young people in their families,” Miller said, “we must understand, support and take action as it relates to their legal representation.”
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