Children win with feds’ policy reversal supporting legal representation

Children win with feds’ policy reversal supporting legal representation
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Children do not know their rights and cannot represent themselves in court. Not in criminal court. Not in immigration court. And certainly not in dependency court. Children are the most vulnerable parties in child abuse and neglect cases, with every element of their lives and their very freedom at stake as they face being placed in state custody, otherwise known as foster care. They need lawyers, and good ones at that. Approximately 40 states provide these children with attorneys, in some or all circumstances, to counsel them, protect their legal interests and ensure their voices are heard.

Yet a decisive right to counsel for abused and neglected children remains elusive. Federal law does not currently require states to provide legal representation for children. In a dozen or so states, the entire judicial process of determining what will happen to a child occurs without the child ever speaking with an attorney. Federal law only requires representation by a non-attorney guardian, or court-appointed special advocate (CASA), appointed to recommend what he or she thinks is best for the child. Sometimes even this doesn’t happen, and children play no role in their own case, learning their fate after it is decided.

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A non-attorney guardian, though invaluable to the court and to attorneys in a case, is no substitute for an attorney to protect a child’s legal interests, counsel them, or zealously advocate for their wishes. In fact, some who are invested in the status quo have vociferously opposed legislative reform efforts to protect the legal rights of these children, arguing that providing them with attorneys would amount to an unfunded mandate and interfere with states' rights. Yet the drumbeat to ensure all maltreated children get appropriate legal representation continues and progress is being made.

The Children’s Bureau (CB) at the Department of Health and Human Services (HHS) recently issued an important policy reversal, allowing federal dollars to flow to states to help pay for legal representation of children in child welfare cases. Federal law has always allowed for this, but previous policy explicitly prohibited drawing down money for it. The policy change aligns with the vision of CB leadership and is consistent with recent legislation supporting family preservation, explicitly extending this funding for legal representation even to “candidates” for foster care.

The policy change is a civil rights victory for children, but it is not a cure-all. It will give states, which already provide lawyers for maltreated children, a mechanism to request reimbursement of a portion of those costs, but it does not secure a right to counsel for children. It does support the notion that the federal government recognizes the stakes for children in these cases and the importance of independent legal counsel to protect their rights, but it does not require states to provide this legal representation. It will provide incentive for states that do not provide this legal representation to get on board and begin doing so, but it will not resolve longstanding inconsistencies around what model of legal representation states adopt.

The policy change provides access to the same funding to help pay for legal representation for parents in these cases as well. Children are best served when all parties in the case have well-trained, high-quality attorneys, and this element of the policy announcement will further advance good outcomes for children.

This new policy initially may be seen as a boon for cash-strapped states that are uneasily contemplating the imminent expiration of child welfare waivers that have allowed them tremendous flexibility in funding their systems for years. But it should not be used as a cost-saving measure by states to recoup spending on legal representation. Rather, these newly available federal dollars are intended to supplement existing funding to encourage states to improve upon their models and delivery of legal representation to better align with best practices enumerated in the American Bar Association (ABA) Model Act on Child Representation.

The ABA model act conveys, among other things, that children should have well-trained, client-directed attorneys and that attorneys should have reasonable caseload limits to ensure quality representation.

Against all odds, HHS has activated a powerful administrative tool to advance the rights of abused and neglected children. Now it is up to the courts to fulfill the promise of Gideon v. Wainwright, which ensured a right to counsel to all those facing placement in state custody because of criminal charges, and establish once and for all a federal right to counsel for maltreated children who similarly face loss of their physical liberty through foster care placement.

It is up to Congress to ensure that the protection of these rights is not left to the vagaries of state law, but instead is enshrined decisively in federal law. No longer can attempts to advance a child’s right to counsel be dismissed as an unfunded mandate; it now is funded. All that’s left is to make it a mandate.

Amy Harfeld is the national policy director for the Children’s Advocacy Institute at the University of San Diego School of Law. Follow her on Twitter @AmyHarfeld.