The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
On September 30, 2013, there were 402,378 children in the United States foster care system.1 Since foster care is temporary, the state’s goal is to move children into permanent situations.2 For most of these children, 53%, permanency means reuniting with their biological parents.3
However, when reunification is not possible, the next preferred option is adoption.4 To promote adoption, the federal Adoption and Safe Families Act (ASFA) requires states to bring proceedings to terminate rights of parents who cannot provide stable homes for their children.5
Many Youth Exit Foster Care as Legal Orphans
Most children whose parents’ rights are terminated are adopted within 13 months.6 However, since numbers of adoptions have not kept pace with numbers of terminations each year, more and more children are left in legal limbo destined to live life as “legal orphans”—children without legal parents.7
Not surprisingly, legal orphans have poor well-being outcomes, including homelessness, criminal involvement, mental and physical health, education level, and reliance on public assistance.8 Despite efforts to solve the “legal orphan problem,” approximately 60,000 legal orphans in the United States are waiting for permanency. Many will exit foster care without any permanent legal connections.9
Judges’ Roles in Reducing Legal Orphans
In 2012, the National Council of Juvenile and Family Court Judges (NCJFCJ) issued a “Resolution Calling for Judicial Action to Reduce the Number of Legal Orphans at Risk of Aging out of Foster Care in the United States.”10 That resolution states that “all 50 states have what the federal government calls ‘legal orphans’ aging out of foster care each year” and resolved that “every child should have a permanent, legal relationship with a caring and safe adult.”11 It further resolves that “the NCJFCJ recommends that judges exercise frequent and diligent judicial oversight to ensure that the child does not remain a legal orphan and that the child achieves permanency.” It also calls for judicial action to reduce the number of legal orphans in foster care.12
The resolution proposes several practice recommendations, including:
- forming judicially-led collaborative teams focused on system reform to achieve permanency for legal orphans;
- issuing negative reasonable efforts findings when the child welfare agency fails to make specific and ongoing efforts to locate and permanently place a child;
- actively discouraging the use of Another Planned Living Arrangement (APPLA) as a permanency goal;13 and
- urging state and local child welfare agencies to provide courts information that would help them quickly identify legal orphans in their jurisdictions.14
Georgia, New Jersey, Ohio and Texas were selected to participate in the NCJFCJ Legal Orphan Project, which has “a strong focus on achieving permanency for legal orphans through vigilant judicial oversight, adoption, guardianship, kinship placement, and building strong skills for transition to adulthood.”15 Each state must: (1) identify the number of legal orphans who are 12 and older and who have been in foster care for at least one year (2) produce a written report about the state’s legal orphan problem, propose solutions, and start a national dialogue among child welfare professionals and the judiciary, and (3) build a national curriculum around permanency counseling for children who are not interested in being adopted.16 While the states have engaged in different approaches, “all of the practice examples rely on judicial leadership and system collaboration.”17
An April 2013 NCJFCJ Technical Assistance Bulletin, “Forever Families: Achieving Permanency for Legal Orphans,” offers policy and practice recommendations to reduce the number of legal orphans in foster care.18 In that Bulletin, the NCJFCJ recognized that, because many children aging out of foster care re-establish ties with their biological family,19 statutes must be developed to permit reinstatement of parental rights when appropriate.20 To date, 17 states have enacted reinstatement laws to benefit legal orphans.21
Reinstatement Laws Alone Do Not Decrease Legal Orphans
The Adoption and Foster Care Analysis and Reporting System (AFCARS) collects case-level information from state and tribal title IV-E agencies on all children in foster care and those adopted with title IV-E agency involvement.22 Title IV-E agencies must submit AFCARS data semiannually to the Children’s Bureau.23 Among other things, the Administration for Children and Families uses the data to conduct Child and Family Service Reviews and trend analyses to guide planning efforts.24
While AFCARS data show reduced numbers of legal orphans waiting to be adopted, this trend coincides with a steady decrease in the overall number of children in foster care and is not attributable to laws aimed at reducing legal orphans. “System-wide reforms and improved practices throughout the country account for the overall decrease in the foster care population, and thus overall lower numbers of legal orphans. However, the numbers of legal orphans aging out has not been as dramatically impacted….”25
National data on legal orphans reported by AFCARS shows a steady increase in legal orphans aging out and at risk of aging out.26 States with reinstatement statutes have not effectively addressed the “legal orphan problem.” In Nevada, Louisiana, and Illinois, the number of youth without permanent legal connections increased since enacting a reinstatement statute.27
Legal Orphans Need Independent Legal Representation
Reinstatement laws would be more effective and the “legal orphan problem” better addressed if legal orphans were provided independent legal representation. A 2008 study found children represented by attorneys have a much higher rate of exit to permanency.28 Permanency for legal orphans could include post-termination reunification and reinstatement of their parents’ rights. Even in states without a codified reinstatement statute, attorneys can help the child explore available legal options, such as custody and adoption by the birth parent.29
Youth need attorneys to pursue those options because in many jurisdictions only the child and the child-placing agency have standing to file a petition to reinstate parental rights.30 Similarly, if the birth parent is no longer a party to the case, the child’s attorney might be in the best position to advocate for other forms of post-termination reunification. Without attorneys to file the petition, represent the child’s interests, and present critical information, there is a risk the petition would be denied and the child would remain a legal orphan.31 “Attorneys largely control the flow of information to the judge. Attorneys decide what witnesses, evidence, and arguments to present .... Without complete relevant information, judges’ decisions may be ill-informed or even tragically mistaken.”32 Therefore, it is in the state’s interest, as well as the child’s, to appoint independent counsel for legal orphans.
In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), the first comprehensive federal legislation on child abuse and prevention.33 CAPTA requires that states provide guardians ad litem, either attorneys or court appointed special advocates, to all children in child abuse and neglect proceedings.34 To date, over 30 states and the District of Columbia recognize the important functions attorneys serve and have gone beyond the requirements of CAPTA by statutorily mandating legal representation.35
Unfortunately, not all states provide a statutory right to counsel for youth in foster care.36 Of the 17 states with reinstatement statutes, only nine require attorneys be provided for legal orphans.37 “When this type of large disruption in a child’s life occurs, they need many resources, as well as people around them that will keep them informed on what is occurring, explain to them their options, and assist them in making decisions about their life that meet their wishes and are in their best interest.”38
In 2014, Washington State passed legislation requiring the court to appoint an attorney, at public expense, for a dependent child who has been legally free for six months. 39
“The Legislature recognizes that dependency proceedings determine many critical aspects of a child’s future, that children have many legal rights at stake in dependency proceedings, that varying practices across the state have resulted in inconsistent protection of such rights, and that representation by an attorney can be invaluable in ensuring that the child’s rights are respected.”40
The approximately 1,500 legal orphans in the Washington foster care system41 will receive legal representation through the new Children’s Representation Program.42 To receive payment, attorneys must comply with practice, caseload, and voluntary training standards.43 Other states must likewise ensure that legal orphans have adequate representation so they can take advantage of post-termination reunification.44 “It is often post-TPR that the legal orphan most needs legal assistance and advocacy.”45
Practice Tips for Attorneys
Follow practice standards for representing children in child welfare proceedings developed by the American Bar Association and the local jurisdiction.
Ask the youth about possible relative and nonrelative permanent placement options. Advocate for increased contact between the child and identified placement options.
Investigate available legal options, including restoring parental rights. Try locating the birth family by working with the child and social service professionals, using available social media, and checking birth parent registries.
If restoring parental rights is an option, advocate for visitation, reunification, and post-reunification services to support the family.
If there are no viable permanency options, minimize the negative social, emotional, and financial issues by advocating for services to prepare the youth for independence.
Reinstatement laws were passed to address the “legal orphan problem” in states across the country. However, legal representation for legal orphans is key to these statutes’ effectiveness. Providing attorneys would help legal orphans by ensuring they do not leave the system without permanent legal connections. “Effective legal representation will ensure that they have the ability to meaningfully participate in the legal proceedings that will impact every aspect of their lives and determine their future success.”46
LaShanda Taylor Adams is an Associate Professor at the University of the District of Columbia David A. Clarke School of Law. She is a graduate of New York University School of Law and Spelman College.
1. U.S. Dep’t of Health and Human Servs., Admin. on Children, Youth and Families, Children’s Bureau. The AFCARS Report #21, 2014.
2. See 45 C.F.R. 1355.20 (defines “foster care” as 24-hour substitute care).
3. The AFCARS Report #21, 2014.
4. Ibid. 24% of youth in foster care have a permanency goal of adoption. Adoption is a legal process by which the rights and responsibilities of the biological or legal parent are granted to another.
5. Adoption and Safe Families Act (ASFA, Public Law 105-89).
6. The AFCARS Report #20. The mean time elapsed from termination of parental rights to adoption is 13.1 months. The median is 9.2 months.
7. “Juvenile Courts, Etc.” § 63, American Jurispudence 2d (2008).
8. Taylor, LaShanda. “Resurrecting Parents of Legal Orphans: Un-terminating Parental Rights.” Virginia Journal of Social Policy & the Law 17, 2010, 318, 326-327.
9. The AFCARS Report #21, 2014. As of September 30, 2013, 58,887 children were waiting for adoption whose parents’ rights had been terminated. This number does not include children 16 years old and older whose parents’ rights had been terminated with a goal of emancipation.
10. National Council of Juvenile and Family Court Judges. Resolution Calling for Judicial Action to Reduce the Number of Legal Orphans at Risk of Aging Out of Foster Care in the United States, March 21, 2012.
15. National Council of Juvenile and Family Court Judges. Forever Families: Achieving Permanency for Legal Orphans, April 2013, 20. States with the greatest numbers of legal orphans were invited to participate in the project. The project’s goals include reducing the number of legal orphans in the state and providing practice recommendations for court systems seeking similar results.
16. Children’s Commission.Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families, Basic Projects.
18. National Council of Juvenile and Family Court Judges, April 2013.
19. Taylor, 2010, 320.
20. National Council of Juvenile and Family Court Judges, April 2013.
21. CA, NV, WA, LA, OK, IL, NY, HI, AK, ME, NC, VA, DE, UT, MN, GA, and CO.
22. Children’s Bureau. About AFCARS. July 2, 2012.
25. National Council of Juvenile and Family Court Judges, April 2013, 9.
26. The AFCARS Report #21, 2014.
27. Ibid. Since enactment of their respective statutes, the number of legal orphans in NV has increased from 766 to 790; in LA, from 749 to 806; in IL, from 2,475 to 2,970.
28. Zinn, Andrew and Jack Slowriver. Expediting Permanency: Legal Representation for Foster Children in Palm Beach County. Chapin Hall Center for Children at the University of Chicago, 2008.
29. Taylor, 2010.
30. National Conference of State Legislatures. Reinstatement of Parental Rights, updated October 2012.
31. Taylor, LaShanda. “A Lawyer for Every Child: Client-Directed Representation in Dependency Cases” Family Court Review 47, 2009, 605.
32. Hardin, Mark. Testimony Before the Subcommittee on Income Security and Family Support of the House Committee on Ways and Means, April 8, 2003.
33. Child Abuse Prevention and Treatment Act, P.L. No. 93-247, 88 Stat. 4.
37. CO, GA, LA, NC, NY, OK, UT, VA and WA receive legal representation. In the other eight states, appointment of counsel is discretionary or depends on child’s age. See FirstStar, Child’s Right to Counsel. In 1999, The Children’s Law Center of Minnesota began its State Wards Project in Hannepin County. Funded by the Hannepin County Bar Foundation, the project provides representation to legal orphans.
38. Baldari, Cara. The Washington State Legislature Should Mandate Counsel for Children, First Focus Campaign for Children, February 3, 2014.
39. S.B. 6126 and H.B. 1285. See Washington Courts, Administrative Office of the Courts. Meaningful Legal Representation for Child and Youth in Washington’s Child Welfare System: Standards of Practice, Voluntary Training, and Caseload Limits in Response to HB 2735. The Legislature appropriated more than $1 million for the program’s implementation.
40. House Bill Report, H.B. 1285, 2013.
41. Rally Ethics for Orphans and At-Risk Minors (REFORM). Washington Governor Signs Foster Care Bill S.B. 6126, April 4, 2014.
42. Bamberger, James A. "Statewide Children’s Representation Program to Launch," Washington State Office of Civil Legal Aid, April 28, 2014.
43. Washington State Office of Civil Legal Aid, Legal Requirements of 2ESSB 6126.
44. See FirstStar, Child’s Right to Counsel (grading each state on providing legal representation to youth in foster care and awarding over half of the states with a reinstatement statute a C or worse).
45. National Council of Juvenile and Family Court Judges, April 2013, 13.
46. Bamberger, 2014 (quoting Senator Steve O’Ban).