David Kelly, an attorney who helped expand the federal investment in legal support for parents and children involved in child welfare cases, left his post as special assistant to the associate commissioner of the Children’s Bureau this week.
Kelly joined the Children’s Bureau during the Obama administration as a specialist for the agency’s Court Improvement Program, and as a special assistant to Trump-era bureau leader Jerry Milner helped with a visible push to move the focus of child welfare more toward helping families before crises hit, with a dramatically lower reliance on mandatory services or family separation.
Kelly told Youth Services Insider that his decision is not based on disagreement over the priorities of the Biden administration, but rather a desire to push for the changes in child welfare he wants in an “unfettered” manner.
“It’s just time for a change,” Kelly said. “I’ve been there for 11 years, I feel like I’ve had great opportunities, but I’m not an incrementalist. I’m ready to work on issues from a different perspective, advocating as strongly as I possibly can for non-incremental, non-reformist reforms.”
Kelly’s tenure at Children’s Bureau will best be remembered in the burgeoning child welfare law community for building a federal funding pipeline that helps state agencies distribute funding for legal counsel. Kelly is widely credited for securing a change in the Title IV-E entitlement that permits states to seek a 50-50 match on spending related to counsel for parents or children, including the kind of extralegal peer supporters and social work that is associated with interdisciplinary law clinics.
It was a quiet change made not in legislation or even a new executive order or regulation, but in the bowels of the Child Welfare Policy Manual, an online guide to federal rules that presents in a question and answer format. Just days before Christmas in 2018, the Children’s Bureau with no fanfare updated Section 8.1 of the manual to note the new funding availability. Before, the only IV-E money that could flow to legal services went to attorneys actually representing the child welfare agencies.
In 2020, an additional update to the manual expanded the scope of the new funding to allow its use to pay for social workers, peer advocates and other professionals who worked on cases in tandem with child or parent counsel.
“I am grateful for the work that he has done to shine a spotlight on the harms of family separation, and I am especially grateful for his work to tilt the scales toward justice by advancing access to high-quality legal representation for parents and children,” said Kathleen Creamer, managing attorney of the Family Advocacy Unit at Community Legal Services in Philadelphia.
Most states, though not all, require some level of legal representation for both kids and parents in child welfare cases. But for children, that counsel often has a mandate to represent the child’s interests, not what the child wants, even if he or she is old enough to articulate it. Parents are usually only provided an attorney after a child is removed into foster care, and some are assured counsel only at the point where the termination of parental rights is on the table. And many states lack a dedicated plan for training and preparing attorneys for child welfare cases.
The movement to push for federal support to expand legal counsel was fomented at a 2016 meeting in Denver that brought together leaders from two sectors that in the past had been at odds with each other: child representation and parent representation.
“On the first morning, David Kelly challenged the room to come together with one unified voice to create a strategic plan,” said Leslie Heimov, executive director of the Los Angeles-based Children’s Law Center of California, in a 2019 interview with The Imprint. The meeting helped spawn the Family Justice Initiative, a group housed at the American Bar Association (ABA).
“David was the moving force behind the policy change,” said Mimi Laver, director of legal representation projects for ABA. “This was a monumental change … that will shift the power imbalance that exists between the government and families.”
Thus far, about $20 million has gone out to states in matched funds through IV-E for legal counsel. Supporters of the move are hopeful that as more states figure out a workable arrangement where these funds pass from child welfare agencies to lawyers, the expenditure will grow.
“David has created a space for innovation inside child welfare to spark much needed reform,” said Jennifer Renne, who leads the Capacity Building Center for Courts at the American Bar Association, in an email to Youth Services Insider. “His focus on court systems has led to systemic changes, impacting countless families.”
Kelly did not comment on any specific future plans to Youth Services Insider, but indicated that confronting racism within child welfare is a priority for him.
“Child welfare as we know it is the confluence/convergence of classism, white supremacy and gender bias,” said Kelly. “That does not make caring folks in the field racists — but it does make us complicit unless we are honest about it and take on an entirely new vision, purpose and approach.”