Child welfare cases require judges to make complex decisions about parental fitness, child safety, rights to family integrity, and government sanctioned family separation. In making these decisions, it is vital that children’s and parents’ interests are adequately addressed and understood in court. The best way to do this is to ensure that parents and children, as distinct parties, are represented by well-trained attorneys who can advocate for their views, protect their constitutional rights, and help judges make well-informed decisions in each case.
The Senate Committee on Health, Education, Labor & Pensions (HELP) has recently introduced bipartisan legislation that will further advance this access to counsel issue.
The current draft of S. 1927, the Child Abuse Protection and Treatment Act (CAPTA) reauthorization enjoys bipartisan support by the Chair and Ranking Members of the Senate HELP Committee, Senators Patty Murray (D-WA) and Richard Burr (R-NC), respectively.
S. 1927 includes legal representation provisions that require states to ensure that all children and parents have a trained attorney in all cases involving an allegation of child abuse or neglect that results in a judicial proceeding, for the entire duration of the court’s jurisdiction in the case. Access to counsel for children and parents is a topic that has had tremendous momentum throughout the country over the last five years, with several states enacting new legislation as recently as this year. Additionally, the federal government began authorizing reimbursement funding for costs of child and parent counsel in these cases two years ago. Building on this national and state level momentum, the timing is ripe for the representation provisions in CAPTA to catch up with developments in the field regarding legal counsel for children and parents.
These attorney requirement provisions also are consistent with decades of research demonstrating that counsel for children and counsel for parents reduces delays in case processing, increases parties’ participation in the case plan, informs better judicial decision-making, produces cost-savings for child welfare agencies and courts, and, most importantly, helps children reach permanency (reunification, adoption, guardianship) sooner with more stable long-term outcomes.
For example, in a 2015 child representation study funded by the U.S. Department of Health and Human Services, children represented by trained attorneys were 40% more likely to reach permanency (reunification, adoption, guardianship) within six months of placement in foster care as compared to a control group. Likewise, evaluations of parent representation have demonstrated positive results for children and parents alike. A 2019 study in New York City commissioned by Casey Family Programs found that multidisciplinary legal representation for parents reduced children’s time in foster care by nearly four months, which amounted to nearly $40 million in annual savings in foster care costs.
Access to counsel is particularly important given the race and poverty-related disparities that are disproportionality prevalent in the child welfare system. Having counsel for children and parents provides an important safeguard against racism and inequality in the system by advocating for equitable treatment and application of laws during the legal process.
On June 7, the ABA sent a letter commending the Senate Committee for its inclusion of provisions in S. 1927 that require states to ensure that all children and parents have legal representation by a trained attorney in all cases involving an allegation of child abuse or neglect that results in a judicial proceeding, for the entire duration of the court’s jurisdiction in the case. The Senate is expected to consider this important access to justice bill soon.
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