Last October, the National Association of Counsel for Children launched its Counsel for Kids campaign intended to equip advocates with the tools, resources and information necessary to pursue universal legal representation for children in all child welfare judicial proceedings.
The campaign comes on the heels of proposed legislation in Congress — the reauthorization of the Child Abuse Prevention and Treatment Act — that would condition some federal child welfare funding on states’ provision of legal representation to both children and parents. Both the campaign and proposed legislation follow years of advocacy by innumerable individuals and organizations — including the U.S. Children’s Bureau — expressing the importance of legal representation.
Many in the child welfare community see these developments as a welcome sign of progress. But given that years of advocacy have failed to deliver universal representation for children, parents and other interested parties (such as kin or foster parents), why should we expect these efforts to be any more successful?
My question is not intended to diminish the value of the past or present advocacy on this issue. Those who haven’t reviewed the Counsel for Kids resources should do so because they are excellent. But I fear that a failure to meaningfully consider why similar efforts in the past have failed may well doom these current efforts to a similar fate.
There are many reasons states lack universal representation for the parties in child welfare proceedings. And of course, lack of funding frequently has been considered a primary barrier. But funding decisions rest on values and tradeoffs between values, and I would argue that many in the child welfare community still undervalue the relative importance of representation as compared to other potential investments in child welfare systems.
So, why is legal representation undervalued by some leaders in child welfare? In my view, it is because expanding access to representation requires those who currently occupy positions of power and influence to surrender a degree of control over children and families’ lives.
Most judges, attorneys and child welfare professionals I’ve known have acknowledged the importance of representation at least for children and parents. But we all can struggle at times with an unwillingness to cede control over the course and outcomes of the legal proceedings in which we take part. And most of the time, this reluctance stems from a sincere belief that because we all are supposed to work toward achieving what is in the child’s best interest, there can be no competing views or perspectives. But best interest determinations are rarely so cut and dry.
An honest and careful consideration of whether it is in a child’s best interest to be removed from their home weighs several competing interests. The likelihood of future maltreatment in the home (a judgment that includes an inherent amount of speculation) must be assessed in conjunction with the degree to which that risk may be mitigated through in-home services. The benefit of removal must be measured against the trauma the child and family will experience if separated. And determining the prospects for improving the child’s long-term wellbeing through foster care must include the likelihood the child will suffer maltreatment while in care, the trauma the child will experience due to any placement disruptions, the possibility the child may never achieve permanency and be forced to transition into adulthood without family, and the child’s potentially diminished educational or health outcomes.
Similar challenges face those making best interest determinations related to achieving permanency for children who are in foster care. Here, a proper best interest determination hinges on determining whether a parent’s progress through a service plan has mitigated the risk of future maltreatment (still a somewhat speculative determination) such that it is now safe for the child to return home. And if such progress has not been made, consideration must be given to whether the parent has been given a reasonable time to do so and the harm to the child incident to remaining in care now outweighs the harm of permanently severing the child’s relationship to the parent. Best interest determinations at this stage also depend on the challenging consideration of the child’s attachment to their temporary caregivers.
Much can and should be done to change some of these aspects of our child welfare systems. But so long as the status quo persists and even with many of the reforms that can be pursued, competent representation for all parties is necessary to adequately consider and balance these interests. To think otherwise ignores that all interested parties, and particularly parents, have important perspectives as well as fundamental rights at issue before our courts.
The adversarial process is best suited to provide the facts and perspectives that courts need to make best interest determinations for children. Legal representation allows each party to articulate and advocate their own interests in the case. And given the secrecy of most child welfare proceedings, an added and important benefit is the increased confidence in the outcomes of proceedings through procedural fairness.
But each of these benefits of expanded representation comes with a cost to those who already occupy positions of power. While increased input and effective advocacy from additional parties improves a court’s ability to make these complex determinations, it also distributes the power to influence these determinations more diffusely and will bring into sharp contrast competing conceptions of the child’s best interest. And this, ultimately, is what I fear will thwart the ardent advocacy for expanded representation.
Advocacy generally focuses on explaining the benefits of a proposed change, and this is true within the efforts to expand representation. These campaigns highlight representation’s role in resolving collateral legal issues, preparing litigants for trial, eliminating bias, protecting fundamental rights, and expediting permanency. But if the primary barrier to expanded representation is not a failure to understand its benefits, additional education about its benefits will not be sufficient to achieve the goal of universal representation.
Instead, if universal representation is to be achieved, the entire child welfare community must couple public advocacy about its benefits with the more personal work of becoming willing to cede control in the interest of better serving children and families. This requires that we each admit we possess an imperfect understanding of children and families’ interests. If we do so, we may then be able to see that our imperfect understanding only can be made more complete by hearing the diverse perspectives of each person connected to a case through competent counsel.