January 15, 2019 Article

Can Children’s Attorneys Transform the Child Welfare System?

By William Booth, Angela Orkin, James Walsh, and John Walsh

As we enter a new year, we find ourselves in a familiar position—more kids are entering foster care than are leaving. This means increasing caseloads, which affect every aspect of the child welfare system. Children’s attorneys struggle to represent their clients, often finding themselves putting out fires and preparing for hearings the day before they go to court. From high caseloads to lack of resources to help families and to overcrowded court dockets, many elements of the child welfare system seem out of our control. But what if there was another way, right now, for children’s lawyers to dramatically improve the lives of individual clients and the system as a whole? We believe that there is.

We are four lawyers from three states who share a common belief—that advocacy is the answer to our struggling child welfare system. You may wonder, how can children’s attorneys transform the child welfare system? We believe attorney can do this, but only if there is a culture shift in our profession. We know what we are suggesting may sound unrealistic to some—but stay with us. By the end of this article, we hope you will be ready to join our effort to elevate our profession and take charge of getting our clients home.

The Challenge for Our Profession

While there have been many strides in the area of children’s law, we are still a relatively young profession compared with other professions that serve children—such as pediatric medicine, which is mentioned in ancient texts from the sixth century BC. We got our start in 1874, when an attorney rescued an orphan, Mary Ellen Wilson, from abusive adoptive parents in Hell’s Kitchen with a writ of habeas corpus. There were no laws protecting children from abuse, so that lawyer, Elbridge Gerry, founded the New York Society for the Prevention of Cruelty to Children. It was the first child protection agency in the United States.

Even though it was a child’s attorney who first took action to systemically protect children in our country, it was not until 100 years later, in 1974, that the federal government would pass the Child Abuse Prevention and Treatment Act (CAPTA). While CAPTA does require some form of representation, it does not do enough to promote quality. The real drivers of effective representation are mainly addressed at the state level: training, caseload size, compensation, and accountability. This has resulted in wide variation among states, with children receiving representation in many different forms and structures.

For 44 years, children’s attorneys have struggled to remove our common roadblocks because we are constantly putting out fires. When we do have time to think globally, we tend to pull in opposite directions. We argue about the nuances of representation that do not affect the majority of children. Some of us take up the banner of due process, believing that every child having some kind of counsel should be the ultimate goal. Others believe that holistic representation is the goal—having enough lawyers and trainings and conferences to address every possible need a child could have. And many, many lawyers are just trying to keep their heads above water, doing the best they can to represent too many children with too little time.

As we speak to children’s lawyers from across the country, we find that the practice looks drastically different from state to state and, in some cases, from county to county. There are, however, some unfortunate constants: high caseloads, low compensation, inadequate training, and lack of supervision. There are other problems, but these are the four constants. At least one and probably some combination of the four are present in your jurisdiction.

How would the practice be different if we were specialized doctors, rather than specialized lawyers? To return to the pediatric medicine metaphor—we essentially operate as the legal equivalent of pediatric trauma surgeons. We just are not resolving physical problems; we are resolving much more complex emotional, familial, and behavioral problems for our clients. And we must agree as a profession that all of these problems are best resolved in the context of a permanent family. That is our shared role. It starts with recognizing our value as professionals and demanding respect by achieving results for our clients. And it ends with a drastically changed child welfare landscape where the child’s attorney is not an afterthought but is instead the person whose vision guides the child home.

Would pediatric trauma surgeons be asked to work on 150 to 200 children at one time? Would they be asked to do it without nurses or physician’s assistants? Would surgery be scheduled every half hour of the day? Parents would not stand for this. But the children we represent don’t have another option. They get us, in whatever form we take. Our role is critically important to our clients, and we must hold ourselves accountable.

The Solution Is Permanency-Focused Advocacy

So how do we elevate our profession?

There is a way. For over 17 years, the Foster Children’s Project (FCP) has operated in Palm Beach County with a singular purpose—to get kids out of foster care and into permanent homes quickly and safely. The office was founded with the goal of getting children into permanent homes within 12 months. When FCP began taking cases in 2001, the average time to permanency was 36 months. Throughout the life of the program, FCP has averaged 12.5 months to get a child into his or her permanent placement. Some may be concerned that this approach adversely affects parents. But this is not the case. The Chapin Hall study of FCP found substantially higher rates of exits to permanency without any negative impact on rates of reunification.

When FCP was created, it began with the simple premise of measuring the length of time children were in foster care, and it evolved into an approach that has stood the test of time. The primary reason FCP’s work has not been replicated is the assumption that it is too expensive. It operates like a real law firm—with caseload targets of 50 children per lawyer, social workers, and funds for litigation expenses. This model and approach helped FCP to change the culture of the child welfare system in Palm Beach County. But it is not necessary to have all of the resources in place to take action today.

We are calling this model of representation permanency-focused advocacy and we are proposing a nationwide move in this direction. It means creating a culture in which every case has a sense of urgency—a culture in which we work harder in between hearings than in court. Permanency-focused advocacy is actually very simple. Many of the strategies learned can be applied to any caseload or system. And imagine if we were all able to move children home a bit faster. What could that mean for the child welfare system as a whole? Even one month per child?

There are three key features of permanency-focused advocacy. If every children’s attorney adopted these, we would see the kind of culture shift needed to transform the child welfare system.

The child’s attorney acts as lead counsel. As children’s attorneys, we lack clarity that is so common in many other areas of the law. Criminal defense attorneys know they are working for a “not guilty” verdict. A lawyer suing an insurance company on a client’s behalf is looking for a win so the client receives a judgment. The list goes on and on. But for children’s attorneys, there are no wins or losses. We must counsel our clients and seek the best possible outcome, but many times that is a moving target. And we are expected to address the well-being of the child while in the system. This unique role, along with the frequent high caseloads, sets lawyers up for failure. We take the small wins and handle only the most urgent issues between court hearings. This leaves little time for legal strategy and proactive steps to move cases forward.

The only way for children’s lawyers to transform the child welfare system is to step into the role of lead counsel and take responsibility for the direction and pace of the case. After all, the case is styled “in the interest of our client.” That alone should bring us a degree of clarity: We are lead counsel because we represent the most important person, indeed the subject, of the case. Once we realize this, we must then focus on the most important legal problem first.

The child’s attorney focuses on the child’s number one legal problem—being in the custody of the state, instead of a family. Most children in foster care have the same problem that Mary Ellen Wilson had—they need a safe and permanent home. If you are appointed to represent a person who is in state custody, it is safe to conclude that your role is to get your client out of state custody as quickly as possible. Taking that a step further, because your client is a child, it’s safe to assume your client needs to be with a family. By keeping it simple, we believe the mission of the child’s attorney is clear—get the child home. Preferably, with some exceptions, this will mean the birth parent’s home. Sometimes it will mean an adoptive home.

As the child’s attorney, you cannot control what the parents will or will not do on their case plan. You can remove obstacles. You can motivate them with visitation. You can plan concurrently by keeping siblings together and in foster homes that will adopt if need be. And you can do this one case at a time. By developing a strategy for permanency within one year for each of your clients, you can start to move the needle in your jurisdiction, even if it’s just a little.

The child’s attorney enforces permanency time frames as a right of the child. How many cases do not see real movement until right before the hearing? What if we spent more time working between hearings? We must hold the department accountable for referrals and services. We must bring cases back into court when action is not taken.

How do we keep our focus on the time frames? We can start by measuring.

The signal of the importance of something is whether you’re actually measuring it and you’re holding people accountable to improving those numbers.
—Sandra E. Peterson, Group Worldwide Chairman, Johnson & Johnson

While some children’s law offices have databases to track cases, many attorneys operate with a stack of files and an impossible list of things that need to be done. If we are to take charge of our cases and work to improve the system, we must start by measuring. It is not the lack of laws on the books that prevents children from finding permanency quickly. It is flaws in the system and the court process. These are areas that may seem outside the purview of the role of a children’s attorney, but we submit that they are not. We are, in fact, in the very best position to be the driver of the case.

Once we are in the driver’s seat, it is our role to watch the clock for our client. This means watching more than the goal date of the case plan. It means making sure the parents get engaged in services early, taking the case back into court when it veers too far off the course we have set for it and developing interim goal dates for each task in the case plan. These are all ways you can begin to let your jurisdiction know that you are watching the clock. As you introduce these practices, you’ll start to see a reduction in your client’s length of stay—if you measure your outcomes.

Measuring can also lead to new resources. If the success of FCP can be replicated, we can all make the case for lower caseloads based on the real, measurable impacts we have on individual clients and the system.

Change the Child Welfare System
One Case at a Time

If all of us were pulling together in the direction of permanency-focused advocacy, what would be the cumulative effect on the child welfare system in this country? What if children removed from their homes because the parents smoked marijuana and had a dirty house were returned in 6 months instead of a year? What if children whose parents disappeared from their lives at birth got adopted in 6 months instead of 18 or 24?

What we as children’s attorneys bring to the table our critical thinking skills. We analyze the facts, apply the law to them, and bring about the best outcomes for our clients. Achieving an outcome for your client may involve thinking way outside the box or even changing the practice of the local child welfare agency. By doing this, FCP has impacted its local system of care in the following ways:

Visitation. Once you know that visitation is the single biggest predictor of reunification, you realize once a month is not enough. FCP pushed for three times a week for infants and was told it would break the system. The system did bend, but it did not break. Visitation three times a week is now the rule in Palm Beach County—for every child.

Concurrent planning. Once you know that, from the child’s perspective, it makes no sense to spend a year in a foster home only to be moved to an adoptive home if your parents fail, you realize the first placement should be the last placement. So FCP pushed hard for “foster to adopt” homes, so that if parents could not be reunified, the child would undergo only one change in caretakers. FCP was told it could not be done. It would cause too many issues with foster parents who would refuse to let go of children they wished to adopt. Those issues do present themselves from time to time. Separating from a foster child can be heartbreaking. Managing foster parents’ expectations can be time consuming. Litigating against them even more so. However, when balanced against the fact that the majority of Palm Beach County children under age five are in foster homes that will adopt them if the parents are unsuccessful, the struggle has been worth it.

Material breach of the case plan. Once you know that the case plan is really just a contract, you realize your client is a party to that contract or, at a minimum, a third-party beneficiary. So FCP borrowed from contract law and argued material breach as a ground to terminate parental rights when parents stopped working their case plans. In these cases, it makes no sense to wait the whole 12 months of the plan. Material breach is now a statutory ground for termination of parental rights in Florida.

Prescriptive case plans. Once you know that your client’s parents have trouble getting things accomplished, you know they need to focus only on what needs to get done. They can’t afford distraction. So FCP argued against extraneous tasks in case plans. As it turns out, Chapin Hall found this was one of the critical differences in cases where children were represented by FCP. The case plans contained only relevant tasks—and that helps kids get home quicker.

These are just a few of the ideas that grew organically out of permanency-focused advocacy. You likely face different issues in your jurisdiction, but the process is the same. Once you change your focus, your practice begins to change. If this seems daunting, keep in mind that not all of the cases we handle as children’s attorneys are difficult. Sadly, parents often make the decision about whether or not our client is going home an easy one. Even ruling out the complex cases, just tackling the cases with an outcome that is not in doubt could have a tremendous effect on child welfare nationally. Some may say that’s not our concern, that it’s the province of state and federal governments to worry about the health of the child welfare systems. We disagree.

We Have the Power to Transform the System

We believe that it is time for us, as children’s attorneys, to take matters into our own hands—just as Elbridge Gerry did when he stepped outside his role as a lawyer and formed the first child protection agency. Let’s all start pulling in the same direction and transform this broken system. Fewer kids in care means a healthier system for our next client to enter. It means case workers with more time. It means less crowded foster homes. It means shorter waiting lists for services. It means all of that—and more.

Together, we can change the system one step at a time. Start small. Pick one. Measure. Use results to show the value of your work and increase resources for high-quality representation.

We hope this conversation continues on many fronts and that you will be a part of it. For our part, we have started the Children’s Law Podcast—the first project of our new organization, True North Child Advocates. You can find us at childrenslaw.org or on iTunes by searching “True North Children’s Law.” Please join the conversation. Your voice is vital.

William Booth, Angela Orkin, Jim Walsh, and John Walsh practice in New York, New York; Atlanta, Georgia; and West Palm Beach, Florida, respectively. Together they formed True North Child Advocates and host the Children’s Law Podcast.


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