Recent disturbing headlines focusing on the trauma and injustice of separating children from their parents at the border ushered unexpected but welcome public scrutiny of the obvious injustice of these vulnerable families facing complicated and intimidating legal proceedings without an attorney. Outrage greeted the word of Judge Weil, who casually declared, “I’ve taught immigration law literally to 3-year-olds…” (login required), as well as by John Oliver, who exposed the preposterous notion of children representing themselves or appearing without counsel. The desperation of these families and the profound gravity of the cases have illustrated to the wider public what advocates and attorneys have long understood—matters as basic as the preservation of family integrity and the risks of being placed in state custody demand representation by a well-trained, highly competent attorney.
But immigration proceedings are entirely different from child welfare cases. Different court system. Different set of laws and procedure. Different standard of proof. Different jurisprudence and precedents. Different political implications. Yet, the risk of a child being thrown into state custody against the child’s will without any understanding of his or her rights, any chance to be heard, and with no understanding or control of where or with whom he or she will end up is strikingly similar.
Fortunately, at least in the child welfare context, the past 20 years have brought sweeping change and a rapidly evolving consensus that children victimized by abuse or neglect and facing court proceedings are entitled to representation by an attorney. This piece reviews some significant milestones in the movement toward achieving a definitive right to counsel for children in dependency cases, reviews the current status quo, and marks the path toward establishing an incontrovertible right to counsel for children in dependency cases.
According to the Adoption and Foster Care Analysis and Reporting System (AFCARS), just under 700,000 abused or neglected children spent time in foster care in 2017. Every one of those children was involved in a court proceeding to formally place the child in this form of state custody. How many of them understood their legal rights during those cases? How many were counseled on their options and asked what they wanted? How many had a well-trained attorney zealously advocating for their position? And how many were left to navigate this terrifying and overwhelming judicial process without the benefit of legal counsel? What does this number look like compared with the status quo prior to 2000? The answer is complicated, though it should not be.
Twenty years ago, there was no case law recognizing the fundamental constitutional due process rights of children in child welfare cases. There was no federal law requiring legal representation for dependent children. There was no federal money available to help pay for children’s legal representation. National standards and guidelines for best practice in this field were still evolving. There was a dearth of research on the costs and benefits of providing children with attorneys during their cases. And fewer than half of states were doing a decent job of providing counsel on their own.
The landscape now is far more hospitable to children’s rights in these cases. Powerful case law has begun to identify the due process rights at stake for children in their dependency cases. State laws in all but about a dozen states now require some form of legal representation for children in abuse and neglect cases in at least some circumstances. The research documenting the positive personal and financial outcomes of providing quality legal representation for children is clear. Brand-new federal policy allows for federal IV-E dollars to be drawn down to reimburse states for up to half of the cost of providing legal representation to children. But federal law still does not require legal representation for children in dependency cases. Although great strides have been made in the field, that matter is currently left to the vagaries of state law.
Advancements in Right to Counsel
In 2002, the nonprofit entity Children’s Rights, Inc., the group behind most of the class action child welfare lawsuits against state systems, filed the landmark federal case Kenny A in the Eleventh Circuit in the Northern District of Georgia. In 2005, the court in that case found that under state law and the state’s constitution, “children have fundamental liberty interests at stake in deprivation and TPR proceedings . . . includ[ing] a child’s interest in his or her own safety, health, and well-being, as well as an interest in maintaining the integrity of the family unit.” The court found that—because a child’s fundamental liberty interests were at stake, there existed a significant risk of erroneous decisions, and the government functioned as parens patriae—it was in the state’s and child’s interest to appoint an attorney for the child. The Supreme Court of Georgia later validated this finding of a child’s statutory and state constitutional right to counsel, and pointed toward a federal constitutional right to counsel as well, at least in termination of parental rights cases.
In 2007, First Star released the first Report Card on a Child’s Right to Counsel, analyzing, comparing, and grading each state’s laws relating to legal representation for children. The report concluded that 21 states earned a D or F grade and only 5 earned an A. There have been three editions of this report card issued and a fourth edition is expected to be released by First Star and the Children’s Advocacy Institute in 2019. The most recent edition, the third edition, of the Report Card, published in 2012, found that the number of states earning a D or F grade fell by a quarter to 16 and that the number earning an A tripled to 15. The next edition will most certainly reflect further progress. The National Coalition for a Civil Right to Counsel makes available regularly updated information on its interactive national map on the right to counsel for children, among other areas of civil representation.
Research by Chapin Hall in 2008 found compelling evidence that children in one Florida county with high-quality attorney representation spent less time in foster care, achieved permanency more quickly, and saved the state money in administrative costs and services, compared with children who were not represented by attorneys. In 2009, the University of Michigan Law School received a multimillion-dollar multiyear grant from the U.S. Children’s Bureau to create the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep). This represented the first significant federal investment in this arena and resulted in the first empirically based evidence on the best way for legal representation to be delivered to children. One of the top recommendations of the QIC in 2016 was that “[f]ederal leadership should ensure that all court-involved children are represented by an attorney in child protection proceedings.” Not only did the QIC recommend legal representation for all children in dependency cases, the QIC advocated for adoption of the best practices reflected in the ABA Model Act Governing Representation of Children in Abuse, Neglect, and Dependency Proceedings, discussed below.
The National Association of Counsel for Children (NACC) released its Recommendations for Representation of Children in Abuse and Neglect Cases in 2001, following the ABA’s 1996 Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases. Definitive national standards for best practice in this field were adopted in 2011 by the ABA in the Model Act Governing Representation of Children in Abuse, Neglect, and Dependency Proceedings. The model act provides an ambitious framework for states to use in adopting laws to ensure the protection of children’s legal interests in their child welfare cases. It also sets clear benchmarks for children’s attorneys in training, qualifications, performance, caseloads, and ethics standards to ensure best practice in the field. The ABA has played a critical role in the movement toward a right to counsel for children through four decades of well-respected work through the ABA Center for Children and the Law. In addition, the Children’s Rights Litigation Committee of the ABA Section of Litigation has helped to engage practitioners and advocates nationwide through convenings, videos, and compelling multimedia presentations, among other means.
The U.S. Children’s Bureau has signaled that these various developments reveal a tipping point requiring a change in federal policy. In early 2017, the Children’s Bureau released an information memorandum identifying “widespread agreement in the field that children require legal representation in child welfare proceedings” and conveying an acceptance of a federally recognized right to counsel for children. Among other things, this memorandum found evidence to support that legal representation for children, parents, and youth contributes to or is associated with:
- increases in party perceptions of fairness;
- increases in party engagement in case planning, services, and court hearings;
- more personally tailored and specific case plans and services;
- increases in visitation and parenting time;
- expedited permanency;
- and cost savings to state government due to reductions of time children and youth spend in care.
Subsequent public statements reinforced this conclusion by the administration through Children’s Bureau Associate Commissioner Jerry Milner and Special Assistant David Kelly.
A Game-Changing Policy Change
At the tail end of 2018, the Children’s Bureau issued a groundbreaking policy change, opening up Title IV-E entitlement funding to help reimburse states for the costs of legal representation for children. It also covers legal representation for parents. Although children and their parents often have distinct legal positions and sometimes adversarial interests in child abuse and neglect cases, most stakeholders understand that when parents are well represented, outcomes for children may improve as well. This policy development reflects the overwhelming consensus in favor of high-quality legal representation for all parties in dependency cases, and it marks an important civil rights victory for children in having their rights endorsed by federal government—with the dollars to back it up.
Implementation of this policy change will not be easy, but it will benefit states that take it on, as well as the parents and children directly affected. States that already provide attorneys for children in these cases now have some support, as well as an unprecedented opportunity to move their systems closer to the best practices outlined in the ABA model act. It also provides a tempting financial incentive for those few states that do not yet provide legal representation to children to get on board. In fact, states that do not currently provide attorneys for children in these cases and that do not take up this match are leaving federal money on the table—a result few state legislators should take kindly to.
Further Advancing the Right to Counsel for Children
The progress described above to achieve a universal right to counsel for children in dependency cases is remarkable. Yet, the struggle is far from over and there is much work yet to be done before the promise of full legal rights for dependent children is realized. Although the new policy from the Children’s Bureau endorses a right to counsel for children and allows access to federal funds to pay for it, there is no federal law requiring states to provide such representation.
Amending federal law. The first and only federal law to directly address the representation of children in child welfare cases is the Child Abuse Prevention and Treatment Act (CAPTA), passed in 1973. The Senate report on the first iteration of CAPTA includes testimony by Dr. Henry Kempe, widely considered to be one of the pioneers of the modern children’s rights movement: “It is proposed that in every case of child abuse a lawyer be nominated by the court to protect the child’s interests.” (Senate report at 201.) Dr. Kempe further testified as follows:
Few would contend that the potential danger to a child’s right to freedom and life is less in situations involving the adjudication of delinquency than in an abusive family situation (indeed, the child’s very life may be in danger, and therefore, every dependency case may be a capital case). It is for this reason that we contend that the juvenile in cases of suspected abuse requires the assistance of counsel to: “cope with the problems of the law, to make a skilled inquiry into the facts, and to insist on the regularity of the proceeding.”
Senate report at 202.
When CAPTA was first adopted in 1973, only two states, Colorado and New York, required legal representation for children in dependency cases (Senate report at 249).
CAPTA does not require legal representation for children. It requires only that
a guardian ad litem, [. . .] who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings—
(I) to obtain firsthand, a clear understanding of the situation and needs of the child; and
(II) to make recommendations to the court concerning the best interests of the child.
This version of the law, adopted in 1996, runs contrary to the legislative intent noted above. The congressional record from that time appears to reflect the financial constraints of states in receiving or locating adequate funding for legal representation for children and attempts to provide a lower-cost option for states to fulfill this function through a volunteer lay advocate such as a court appointed special advocate (CASA).
Current law sets the federal floor to require only a non-attorney guardian ad litem (GAL) or CASA to “represent” the child by conveying to the court what the GAL or CASA deems to be in the child’s best interest. There is no federal requirement that ensures children are counseled as to their legal rights and options, that their voices and positions are heard, or that they enjoy the safety and protection of the attorney-client privilege. Given the trajectory on this issue over the last decades, federal law has some catching up to do. CAPTA must be amended to return to the original legislative intent and reflect the tides of state laws and federal policy to require that children receive legal representation, not just a lay GAL.
Most children’s lawyers would likely agree that CASAs provide critical information to the court and fulfill a unique and valuable role in the child welfare cases in which they serve. But even the best-intentioned volunteer CASA is no substitute for an attorney. Only attorney representation creates and protects the critical attorney-client privilege necessary for full transparency by children. Only representation by an attorney properly allows for critical court functions such as filing motions, appeals, subpoenas, and objections, and examining witnesses. And only legal representation allows for the amplification of the child’s voice and wishes, provision of legal counseling, and protection of the child’s rights. It is important to note that the attorney representation needed in these cases is for the children, and not for the “representatives” of those children. Programs that provide attorneys to lay guardians or CASAs, rather than directly to children, will likely not qualify for these valuable new federal dollars and may ultimately be deemed inadequate and inefficient in the aftermath of this policy change.
The role of a child’s attorney and the role of a CASA or GAL are distinct yet complementary. Children are best served when both are involved. Any zero-sum game pitting CASAs against children’s attorneys is false and promotes a disservice to the very children at the center of the core missions of both roles.
Other opponents of advancing reform in CAPTA have relied on arguments against creating additional unfunded mandates within the beleaguered statute’s requirements of states. With the adoption of the policy change allowing for federal entitlement dollars to help cover these costs, that argument has now essentially been rendered moot.
Federal legislative reform could be achieved through CAPTA reform. But that is not the only possible legislative vehicle. There are other legislative avenues that might be pursued, including Title IV-E itself. Now that IV-E may be used to pay for children’s legal representation, it could explicitly require such legal representation. Frankly, it has always been the most logical legislative pathway to address legal representation, as it addresses the administration of judicial proceedings in child welfare.
Recognizing a constitutional right to counsel. Just as federal law must now work to catch up to the rapidly evolving understanding on legal representation, federal courts must address this question once and for all to conclusively establish a constitutional right to counsel for all children in abuse and neglect cases. NACC visually tracks the legislative evolution on this topic in this graphic. The Kenny A case provides a blueprint for future cases and is sure to be used as a foundation to expand the holdings more broadly.
There have been some other efforts to advance case law on this topic since Kenny A, none as successful, but they are helpful in illuminating a path forward. In Connecticut, children’s attorneys filed suit against the state, alleging that systematic inadequate representation by court-appointed counsel violated the rights of the children involved in child protection cases. In 2009, the Children’s Advocacy Institute filed a class action in California alleging that the constitutional and statutory rights of Sacramento County’s foster children were violated by caseloads approaching 400 per attorney and 1,000 per judge. The ruling in this case never reached the substantive issues of the case; rather, it dismissed the case under the doctrine of abstention. Obtaining decisive case law broadening the findings of Kenny A nationwide is still aspirational.
Lawyers understand how the loss of liberty through placement in state custody triggers constitutional due process concerns. Gideon v. Wainwright overcame federalist objections to establish a conclusive right to counsel for criminal defendants. In re Gault extended that right to juvenile defendants. The primary distinction between children facing placement in state custody through foster care and children facing incarceration is the distinction between an alleged perpetrator and a victim. Surely, children who have suffered abuse or neglect and who may be involuntarily placed in state custody ought, at the very least, to have the same rights and protections as criminal defendants. Indeed, children placed in state custody in child welfare cases can remain in state custody, separated from parents, siblings, and other family, for up to 18 years and can be—and often are—moved from placement to placement without notice or an opportunity to weigh in. Quite a severe sentence for doing nothing other than being the victim of abuse or neglect.
The past 20 years have marked a seismic shift in the landscape regarding the right to counsel for abused and neglected children. Countless attorneys, advocates, judges, nonprofits, academics, foundations, journalists, and state and federal government officials have played critical roles in educating the public and keeping this issue moving forward. The overwhelming majority of states now require some level of legal representation for children in child welfare cases. Research has validated the benefits of legal representation, both for children and for the state. Arguments against federal legislative reform have largely been neutralized, and CAPTA is up for reauthorization as this goes to print. The federal government has issued clear policy in favor of a child’s right to counsel and provided a mechanism to help pay for it. In fact, so many voices across the spectrum have now weighed in in favor of a child’s right to counsel that a handful of states, Congress, and the Supreme Court are now conspicuous outliers and on the hook to catch up.