Iowa Law to Test the Benefit of Early Legal Help in Child Welfare Cases

Iowa aims to find out if giving families in crisis early access to lawyers would improve outcomes, rather than being assigned a public defender only after a child is removed and enters the foster care system. 

Under a new state law signed recently by Gov. Kim Reynolds (R), the state Public Defender’s Office would have the sole authority to appoint an outside lawyer experienced in child welfare cases to an indigent person before formal proceedings begin, if deemed appropriate.

The law establishing the pilot program goes into effect today in up to six of Iowa’s 99 counties. The program would sunset after four years unless, presumably, lawmakers decide to extend it or make it permanent. The Public Defender’s Office will work with other agencies to study outcomes.

The purpose of the pilot is to “implement and study innovative ways, through a team approach or through other methods, to achieve positive outcomes for families, reduce trauma to young children, and deliver financial benefits to families and their communities,” according to the text of the law.

Every state affords some right to counsel to parents accused of abuse or neglect – it’s a categorical right in 38 states (including Iowa), discretionary in six and based on certain circumstances in seven. But the provision of indigent defense almost always occurs once a court is involved, meaning that more often than not, a child has already been removed from the home and placed in foster care or with relatives. In some states, free counsel is only guaranteed when a parent is facing the termination of their rights. 

Iowa’s pilot sends legal support upstream, to the point where parents are first investigated for maltreatment. The presence of counsel in the early going could pressure the child welfare system to make reasonable efforts to prevent foster care removals, a standard embedded in federal law but often not scrutinized by judges. 

A similar test in Michigan yielded promising results. The Detroit Center for Family Advocacy, started in 2009 by Michigan Law School professors Vivek Sankaran and Don Duquette, received referrals for families that faced barriers to keeping their children, and for youth who were already in foster care.

It was funded through philanthropic grants, and for seven years, not one of its prevention clients had lost a child to foster care. But once the private funds stopped, the city did not absorb its cost, and it was shuttered.

Iowa’s SB 2182, sponsored by the Senate Judiciary Committee, allows attorney fees in such cases to be paid out of the state’s pre-existing indigent defense fund. The state will also be eligible to draw federal funding for the venture through recent changes made by the Trump administration. In late 2018, the U.S. Children’s Bureau amended the rules on claims for the child welfare entitlement, allowing states to draw a 50% match on money spent on lawyers for parents and children involved in child welfare cases.

Nationally, support for parental representation in child welfare has grown in recent years, particularly for models that pair attorneys with social workers and peer advocates.

According to a study in the journal Children’s Youth Services Review, New York City’s experience with early team-based defense sped up how long it took to find permanent solutions for children in foster care, significantly reduced their time in the system and could save millions of government dollars.

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