chevron-down Created with Sketch Beta.
July 09, 2018 Articles

Radical Imagination, Fearless Lawyering

By Cathy Krebs

"You have the power, thus the privilege, thus the obligation to disrupt these systems."
—Shéár Avory, National social justice advocate and Biden Fellow for LGBTQ equality

On May 1, 2018, the Children's Rights Litigation Committee convened a day-long symposium to celebrate our twentieth anniversary as well as the victories in the children's rights field during the past 20 years. The symposium, Children's Rights are Human Rights: 20 Years of Fearless Lawyering for Children, resulted in a dynamic and interactive conversation among all attendees, who included both the pioneers of children's law as well as the newest generation of children's justice advocates, focused on where we need to be going next for our child clients. Capturing the magic of the day feels almost impossible; nevertheless, this article attempts to highlight some of the extraordinary work done that day. Note that these amazing quotes, ideas, and thoughts are not attributed to particular speakers but instead are synthesized together to simply provide an overview. To see pictures and attributed quotes, check out the hashtag #KidsRts20 on Twitter, and visit the symposium website, where there are videos from the day.

Throughout the symposium, clear themes emerged. Children need relationships, connections, and love, and that knowledge should drive all of our work. We need to listen, empower, and involve children and families because change happens from the ground up. And we need to pay attention to what the child and family need and then meet those needs, even if that means creating a new service, system, or platform. To accomplish these goals, lawyers must be fearless and make use of radical imagination.

Zealous Advocacy and Due Process
We were reminded that due process is foundational and essential. Children must have a right to (zealous) counsel when they are involved in the justice system. For children in immigration cases, deportation can be a death sentence, and so the fact that this population does not currently have a right to a lawyer is deeply problematic. Parents must also have a right to counsel in both child welfare and immigration cases. We know that providing adults facing deportation with counsel is a family reunification strategy and provides collateral benefits to an entire family. Similarly, a right to counsel for parents in the child welfare system has proven to reduce a child's time in foster care and improve outcomes generally for the child.

In the past 20 years, we've made progress in understanding what quality lawyering looks like. We know that good lawyers mean better outcomes for our child clients (and save money) and that the lack of due process leads to worse outcomes. We were advised to remember that our cases are about our clients, not us: We stand where we stand, when we stand, only because someone is in trouble and needs our help. We should not represent our clients as just another case, but instead push every single issue. We should look to international law and educate judges and others about its importance, and we should think about our advocacy for children in the context of an international movement for change. We win one case at a time, and if the result isn't right, then we need to keep going until it is.

We were challenged to dive into understanding our own bias and question the bias of the system. Our systems were often created to perpetuate inequity, and so discrimination is built into our systems. The standard of the "best interest of the child" is often determined by a white power structure on behalf of families that are disproportionally of color, and that can often make the situation worse. We need to be guided by standards and laws that can constrain bias.

We were also challenged to look to the future to think about the following questions: Who will be the next set of leaders? What will we do to mentor those new leaders and ensure a diverse pipeline into children's law? Who is missing from the table as we think about reforming systems for children? Are there unusual suspects who should be included in that conversation who are currently being left out? (Imagine if we recruited the best multidisciplinary talent to deliver the best for kids!) What will be the next set of ideas? People's crazy ideas sometimes do become law.

Families as the Solution
Often we blame families and call them the problem. At the symposium, we were encouraged to talk about families as the solution. If our systems looked at families as the intervention, it would reorient our entire approach as we would need to be in those homes and talking to those caregivers. We also need to step back and make space for system-affected families in our system reform work because no one knows more about these systems than the families trapped in them.

We talk a lot about prevention to keep kids out of the child welfare system, but it's time to do more than just talk. What would it look like if we actually gave families the help they needed to care for their own children and keep their own children safe? What if we had wildly creative family-centered programs to keep families together? What would it look like if we designed a courtroom to keep families together? What if we had a trauma-free environment in which families could help themselves and in which families are empowered to find the resources that they need? In thinking about prevention, we also need to acknowledge that there is an overrepresentation of people of color in the child welfare system, according to the National Conference of State Legislatures, and that we do not always help children from wealthy families. We need to address all of these issues so that fewer children (but the right children) come into the child welfare system.

For those children who are removed from their homes because of allegations of abuse or neglect, what if we had a sense of urgency for them? What if we set a goal for every child who comes into state care of 30 Days to Family? What if we found safe placements with trusted adults by asking kids who they feel safe with and who they call when they are in trouble? Families are people who love you; they do not have to be Ward and June Cleaver. If a child has a loving family who can take them, we should prioritize those placements and fix whatever issue is getting in the way, whether that's providing a needed bed, fixing a problem with the house, or expunging an old record that has no impact on the ability to care safely for the child. Families love you no matter what, and that should be the priority for each child who comes into state care.

We considered ways that we can better support families. For example, if a child needs intensive mental health services, what if instead of institutionalizing that child, we provided those intensive services right in the home (whether that home is with family, foster care, or adoptive) so they did not have be separated from their families to receive the services they needed? When parents need services, whether to prevent removal of children or after children are removed, those services need to be effective, efficient, and provided without judgment. A parent mentor can be enormously helpful and can assist by walking with the parent, helping the parent navigate the system, and respecting the parent. We need to empower parents and ask what they need—they often are the smartest about what they need to stabilize their family and keep their children safe. If they identify a need for which there is no service, then let's think about creating that service.

In the immigration arena, we were reminded that children are often described as "unaccompanied," but that is the government's term for how it defines a child at the U.S. border, not how the child views his or her life and family. Further, current U.S. policy is separating families at the border and thus rendering children unaccompanied, even if they did arrive with family. Immigration advocacy needs to consider children as part of families, rather than treating them as if they are alone. Currently, we don't consider best interest of the child in an immigration proceeding, and we don't think about family reunification or how to strengthen families once they are reunified. For an adult facing deportation, our system does not consider whether a child will be left behind as a result of a deportation. In the European Union, the prioritization is family reunification, child safety, and best interest of the child over immigration prosecution, the very opposite of U.S. priorities. What if we took a similar approach of thinking of families as the solution and asking what immigrant children and families might need to help put them back together and strengthen them?

In all of our justice systems, what if we flipped our thinking to assume families are the solution? How would our advocacy be different? How would our systems be different? That is our challenge moving forward.

Treat Children as Individuals
We talked a lot about systems that do not treat children as individuals but instead as faceless children who are all treated the same and given cookie-cutter services. Our systems focus too often on creating good consumers, not supporting children and families through challenges. We heard from one speaker who described her time in foster care as being shuttled mechanically between inappropriate placements and visits with wrong family members. No one asked her what she wanted, and if they did, the questions were perfunctory—nothing changed.

Our juvenile justice system has historically been structured around the idea of strict control, which our country has often viewed as a way to save children. As a result, we deny children their freedom in the name of control—state sanctioned and judicially enforced. Indeed, the U.S. is the only country in the world that sentences children to die in prison by imposing the sentence of life without the possibility of parole for children under the age of 18. We heard from one speaker who went to prison at age 16 and who described being on a unit with youth who had been sentenced to life in prison—they were all watching cartoons. Despite their harsh sentences, they were still, in fact, children.

We cannot think of treating children as individuals without thinking about race. We began the day discussing the history of children's rights, but we know that black and brown children were excluded from those initial conversations around child protection and rights. Race continues to pervade each of our systems and our society (indeed, as a country, we are as segregated now as we were during the era of Brown v. Board of Education). We often use poverty as a proxy for race, but it's always about race. However, our society generally denies that the U.S. has a problem with racism, raising the following question: How do we engage a problem that we deny we have? We know that there can be no reconciliation without truth. We cannot change the racism of our systems without recognizing that the systems are racist. To engage on the issue of racism, we need radical imagination (which is sometimes just common sense).

Despite the treatment of our systems, we know each child is different and needs different things at different ages. Age, gender identity, disability, race, sexual orientation, trauma history, developmental level, family, religion . . . these things and so many others are important parts of who each child is. Are we asking our clients who they are and what is important to them? If not, how can we make sure their needs are met? Are we moving beyond the casefile and being inquisitive to have authentic conversations? Are we giving our child clients agency? Are we ensuring joyful experiences for our clients in care? Fun should be a mandatory part of every day and not dependent on good behavior. Are we providing treatment and opportunities to heal from trauma? Are we recognizing the urgency of each child's circumstances? We must do all of these things if we are to provide zealous advocacy.

If you think your children have a future, then you plan for it. What if we changed our thinking on how to treat children accused of crimes? What if we never caged children? What if we considered adolescent brain science, in both juvenile and adult courts, and amenability to rehabilitation? What if we looked at the social determinants of law violations (similar to how we look at the social determinant of health to improve outcomes). How would our systems and our advocacy be different?

Fearless Lawyering: Challenging the Status Quo
We began the session called "What if we placed kids in the least restrictive setting?" by responding to the question "What values would form the basis for a better system than we have now?" Prominent answers were love, equity, inclusion, family, and respect. One speaker noted that what is good enough for her own daughter should be the basis of all systems and that it should include early intervention, real reasonable efforts, and courts that are accountable.

One speaker who had been system-involved herself as a child talked about the evolution of her view of justice. For her as a child, justice was the freedom from adults who couldn't be trusted with her body or spirit; later it was the right to be heard and be part of the solution; then it was procedural justice; and finally she has realized that justice is love. It's a person who looks at you and sees the world, who doesn't see you as the worst thing you ever did or your worst day. Using this lens, it is clear that "least restrictive placement" is the wrong framing. It's not about physical surroundings; it is about placing children in the "most connected environment." You cannot fix broken hearts and loneliness. These things destroy our children. We often fixate on whether children are safe, when we should be fixating on whether they are loved. Loving a baby relentlessly changes everything for the baby. We must push individually and systematically toward love. We have to focus our advocacy on love and family and consider how something supports or gets in the way of a child being loved; that should be the guide for our work.

Our current systems often have the mentality of hospice. The system will do only what it is designed to do, and you can't beat a system into being competent. For example, our current outdated technology encourages compliance-driven behavior rather than behavior that actually meets kids' needs (when, conversely, technology can be used to change the behavior of frontline workers). We don't look at our systems as a business and we never have. If a business was not succeeding, it would fail. We need to be transparent and honest about how we are failing; otherwise, nothing is going to change.

In terms of creating new systems, we have some good research and data, and we can continue with research and design to find the programs, systems, and platforms that practically use the data in a way that disrupts. We cannot put the entire burden of change on our frontline workers; instead, we need a diversity of skill sets to solve big problems. What if we had people with a variety of different skills including management, tech, and marketing, and researchers working to redesign our systems together? What are the kinds of skills that should be at the table that could help us think very differently about the challenges at hand, particularly those skills that could overcome existing resistance to change? Our guide should be thinking about what is needed—e.g., strong connections and helping youth heal, develop, and thrive—and then building systems, platforms, and tech to make that happen.

In the nonprofit world, there are often no chances to fail and experiment, but there must be. Let's use radical imagination to restructure our systems. We can try new programs on just a few kids—not every experiment needs to be huge—and this can allow us to try big changes that might fail, because incremental change is not enough; we really do need to be thinking about big restructuring. We must be fearless, intentional, and dogged about what we know to be right.

In terms of creating laws, can we identify our top three or four long-term legislative goals for children (perhaps prioritizing their safety and their agency), while remaining flexible to address needs as they arise? Planning a long-term legislative agenda presents a challenge but also an opportunity. Once we have passed great laws and won consent decrees, we must continue to advocate for their implementation or else they will not take root.

Our approach to system change should be family-centered, youth-led, and community-based. We have to empower the people who are closest to the problem because all change comes from below. It is the people who have the problem who understand the solutions. We must invest in the leadership of those most connected to the problem. What if youth drove the policy that shaped their lives? What if we allowed them to? What if we prepared them to? Youth are our partners. Their expertise is greater than our academics'. Our young people do not need more leaders; they need more listeners. Let's bring together families, children, and frontline workers. It's terrifying, but amazing things will happen, and until that happens, we will never find the solutions.

How can we think about system change and implement everything discussed above in our work when there are so many challenges to face-to-face interactions with our clients (e.g., caseloads)? To start, we can create moments of authentic human interactions with our clients and their families. We can give kids a chance to give feedback—on our lawyering as well as on the services they are receiving. We can examine the question of whether we are compliance driven or outcome driven. We must never think that we know more than the people we serve.

It will take intentional acts of courage to create systems that work better for our child clients. Too often we fixate on what is plausible and not on what is possible. It's time to think about a long-term strategy for reform that is lasting. We must shed any fear of failure, which can be our biggest barrier, and believe all children deserve our best efforts.

What Is Next?
Children's Rights are Human Rights: 20 Years of Fearless Lawyering for Children was just the beginning of an essential conversation looking ahead to the next 20 years of children's rights. Materials from the symposium, including a podcast series and videos, can be found on the symposium website. The conversation will continue over the next few months through programs, webinars, and articles. Let us know if you would like to be a part of that conversation. We have come far as a children's rights community during the past 20 plus years, but we still have a long way to go. Here is to the next 20 years and the fearless lawyering yet to be done.

"We are the ones we've been waiting for."
—Shéár Avory, national social justice advocate and Biden Fellow for LGBTQ equality 

Cathy Krebs is the committee director of the Children's Rights Litigation Committee.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).