July 17, 2019

High-Quality Legal Representation is Critical to Creating a Better Child Welfare System

by David Kelly and Jerry Milner

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. 

This article was adapted from remarks by Jerry Milner and David Kelly of the U.S. Children’s Bureau at the ABA Center on Children and the Law’s spring 2019 National Conferences, held April 9-12, 2019 in Tyson’s Corner, VA.

The Children’s Bureau has a new vision for child welfare in the United States. It is a vision rooted in preventing child maltreatment from occurring and reducing the need for family separation and foster care. We believe we can do this by investing in primary prevention to help keep families and communities strong and position both to thrive. We believe in allowing funds that historically have been used to respond to maltreatment allegations – separating families and providing foster care -- to become available for a wider range of supports to address family vulnerability and keep families safely together.

Attorneys for parents, children, and the child welfare agency are critical to bringing our vision to life. To reshape our system from one that is too often experienced as punitive to one that is helpful, supportive, and healing, we will need high-quality legal representation at every step of the continuum. Because the legal community is central to our vision, it was our honor to be part of the opening of the ABA Center on Children and the Law’s spring 2019 National Access to Justice Conference and closing of its National Conference on Parent Representation. We came to deliver one message: Our current trajectory in child welfare is unsustainable and we cannot in good conscience allow the system to continue on its current path.

How do we know the current path is unsustainable? The facts are clear:

  • The numbers of youth entering foster care continue to rise – as you read this article, there are over 443,000 children in care and the number is growing (as of 2017);
  • 75% of founded incidences of child maltreatment result from neglect;
  • 64% of those incidences somehow relate to poverty;
  • We continue to struggle with disparity and disproportionality of people of color in the child welfare system;
  • We know that even when needed, removing children from their parents to foster care is deeply traumatic;
  • We know the trauma of parent-child separation can last a lifetime, yet we continue to spend money on creating more evidence-based practices to fix the trauma after it has occurred, rather than preventing it from happening in the first place; and
  • The outcomes for youth exiting care and alumni of care are shockingly poor.[1]

These outcomes should stop us in our tracks. They should cause us to question whether we are doing more harm than good. At the very least, they should be a compelling argument that we need to take a different approach. Yet, so many in our community are committed to doing the same things in the same ways, somehow expecting different results. Albert Einstein called that the definition of insanity. We struggle to make any sense of that and offer no apologies for our impatience with guardians of the status quo.

If we want different outcomes and different experiences, we need a fundamentally different approach. That approach must recognize that, overwhelmingly, most parents love their children and the “parents” most children need are their own.

Reimagining a New Child Welfare System

In addition to our remarks at the ABA’s conferences, we issued a call to action in both the opening and the closing sessions of our National Conference on Child Abuse and Neglect, held on April 24, 2019, and implored all in the audiences to join us in embarking in a different direction. We repeat that charge here, and with this article invite all who may not have been present to make that same commitment.

Together we can work to:

  • strengthen families,
  • reduce unnecessary parent-child separation,
  • disentangle poverty and neglect,
  • squarely address disparities,
  • empower communities to support families, and
  • promote family well-being and integrity instead of threatening to destroy it.

We invite all readers to help us create a system that does not require children to be at imminent risk before supports are available to their families. This is what parents and youth with lived experience in the child welfare system tell us would have been helpful when we meet with them across the country; this is the future state they use their voices to implore us to create.

So many of the inequities we face as a society – poverty, oppression, disproportionate challenges for people of color, disconnected youth – are all magnified in our current child welfare system. It does not have to be that way. Many in our community say they wish to change this but are unwilling to consider a funding structure that will allow it.

Reimagining a different child welfare system, one solidly grounded in supporting all families before they become known to the child welfare system, is absolutely doable. Nothing stands in our way except complacency, attachment to the status quo, fear of losing what is known, and comfort with a system that does not lead us where we need to go.

Investing in Family Well-Being, Achieving Justice

It is time to invest in family well-being and the protective capacities of all parents, not just those for whom a report of child abuse and neglect has been made. This is not a call for government overreach or more intrusion in the lives of families, but is a clear call to make voluntary, nonstigmatic supports that all families need readily accessible at the community level; services designed to head off the need for formal contact with the child welfare agency.

We must acknowledge as a country and as a field that our current system is not achieving justice for families. We can achieve justice and well-being for families by committing to:

  • A jointly owned, shared vision of child welfare as a family support system that is community-based and universal for anyone who needs help, to make asking for help nonstigmatic and nonpunishable;
  • Working diligently to reach consensus with other federal and national partners to create the conditions for healthy and thriving families and communities, where children are free from harm;
  • Focusing on primary prevention to reduce the need for foster care;
  • Making foster care a support for the entire family, not a substitute for parents or an expedited conduit for adoption; and
  • Ensuring high-quality legal representation across the entire continuum, from community-based legal services and prepetition representation to formal involvement in dependency courts.

Valuing High-Quality Legal Representation

We believe so strongly in the importance of high-quality legal representation that we changed our federal policy to support it financially.[2] We made the policy change because we know that without high-quality representation, families and children often experience a system where their voices are not fully heard and their needs go unarticulated and unmet. High-quality legal representation is key to keeping families together and promoting the well-being and safety of children and parents alike.[3]

For evidence of the importance of high-quality legal representation, we need look no further than what reasonable efforts determinations have become in most situations, a checkmark on a court order. This is not what the law intended or requires. Reasonable efforts findings around the country have largely been reduced to perfunctory findings without supporting facts. Common practice is to accept inadequate efforts as reasonable efforts.[4]

As a community concerned with the well-being of children and families, we need to ask ourselves some direct questions:

  • Is it reasonable for a parent to have to use multiple forms of transportation to get to an hour of counseling that may be cancelled when she arrives or, worse yet, may not even be what she needs?
  • Is it reasonable to expect a referral for services alone will get a parent what they need to care for their children safely?
  • Is it reasonable to expect parent-child relationships to grow and flourish with only weekly visits in unnatural settings as social workers peer at them through a window?
  • Is it reasonable to pay a foster family to care for a child, often far away from everyone and everything they know, rather than keep the child in the home and community they know and use the money to provide parents what they need to care for the child themselves?

None of this is reasonable; yet these are real-world examples of the reality in our current system and what is accepted as normal. It is wholly unreasonable.

Investing in Primary Prevention

If we want a better system, if we want better outcomes, if we want parents to describe their experiences in child welfare positively, we must stop doing what is unreasonable and start actively supporting parents in their efforts to care for their children. We must have the courage and fortitude to stick with those choices, even in difficult times when things go wrong instead of retreating to the relative safety and protection of a CYA approach to child welfare.

We recognize there will likely always be a need for child protective services and for foster care, but we believe they should be secondary and tertiary to a strong unwavering focus on preventing the need for either. Investing in robust primary prevention should reduce the need for formal family interventions.[5]

We have a terribly imbalanced child welfare system and, we believe, a lack of vision and commitment to make it different by taking chances. Some are so concerned with the possibility of reduced funding, of having to exert vision and leadership, that they are stymied. They focus exclusively on what might be lost as opposed to what might help. They use child fatalities as an excuse to reject prevention and family support work, even when strengthening families is our best hope for protecting children and preventing maltreatment and fatalities. Instead of these protectionist postures, we could and should focus on what might save families and reduce the likelihood of maltreatment.

Committing to a New Vision

We are not stymied in the Children’s Bureau. We are committed to a radically different and improved child welfare system --

  • one that values families;
  • one that believes families can be helped to avoid the travails we spend our days trying to fix;
  • one designed to prevent imminent risk of harm from ever occurring;
  • one committed to breaking harmful intergenerational cycles of maltreatment and family disruption;
  • one focused on preventing bad things from happening to children and their parents;
  • one that applies what we know to handle instances of maltreatment more humanely and effectively; and
  • one that leads to the outcomes we all talk about, but seldom do anything tangible to bring about.

 High-quality legal representation can lead the way.

Jerry Milner, DSW, is Associate Commissioner of the Children’s Bureau at the U.S. Department of Health and Human Services.

David Kelly, JD, MA, is Special Assistant to the Associate Commissioner/Child Welfare Program Specialist for Court Improvement at the U.S. Department of Health and Human Services.

Endnotes

[1] See generally U.S. Department of Health & Human Services Administration for Children and Families Administration on Children, Youth and Families. Child Maltreatment 2017; See, e.g., U.S. Children’s Bureau. Focus on Youth CFSR Findings: 2015-2017, January 31, 2019 (highlighting results from the Child and Family Services Reviews related to older youth aged 16–17 in foster care for the 38 states reviewed during the first 3 years of Round 3).

[2] U.S. Department of Health & Human Services, Administration for Children & Families, Children’s Bureau. “8.1B TITLE IV-E, Administrative Functions/Costs, Allowable Costs - Foster Care Maintenance Payments Program” Child Welfare Policy Manual; The statute at section 474(a)(3) of the Act and regulations at 45 CFR 1356.60(c) specify that Federal financial participation (FFP) is available at the rate of 50% for administrative expenditures necessary for the proper and efficient administration of the title IV-E plan. The title IV-E agency’s representation in judicial determinations continues to be an allowable administrative cost. Previous policy prohibited the agency from claiming title IV-E administrative costs for legal services provided by an attorney representing a child or parent.

[3] See U.S. Children’s Bureau, Information Memorandum, ACYF-CB-IM-17-02, January 17, 2017 (highlighting the value of high-quality legal counsel for children, parents and the government in child welfare proceedings).

[4] See Milner, Jerry & David Kelly. “Reasonable Efforts as Prevention.” ABA Child Law Practice Today, November 6, 2018.

[5] See, e.g., U.S. Children’s Bureau, Information Memorandum, ACYF-CB-IM-18-05, November 16, 2018.