Money Matters: How Funding Changes Affect Legal Representation Quality

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. 

Webinar Alert: Please join us Monday August 31, 2020, 3-4 pm ET for a webinar highlighting the California assessment findings. Learn how to use the assessment when pursuing funding for dependency counsel and advocating for greater investments in child and parent counsel in your communities. Register

Child welfare legal advocates don’t enter this field for the money, but money matters. Adequate funding for counsel drives the kind and quality of representation advocates can provide their clients. In a new report – Effects of Funding Changes on Legal Representation Quality in California Dependency Cases – the ABA Center on Children and the Law assesses how increases and decreases in funding for child and parent counsel affect factors typically associated with high-quality representation, including: caseload size, recruitment and retention to ensure consistent representation, training and experience, time for out-of-court advocacy, and interdisciplinary models of practice.

The report and its executive summary explain how state and local jurisdictions across the country can use the findings to improve legal representation for children and parents by leveraging new opportunities to invest in counsel. This guidance is especially timely as jurisdictions address budget shortfalls in the wake of the global COVID-19 pandemic while carefully considering how to ensure quality representation through efforts supported by the policy change in Title IV-E reimbursement for legal representation. This article, written primarily for lawyers who represent children and parents and know firsthand how funding challenges advocacy for clients, provides guidance about how to use the new California assessment to advocate for greater investments in child and parent counsel in communities. It also provides guidance about how to use the report’s other findings to advocate for areas of system reform that also affect the quality of legal representation children and parents receive while involved in the child welfare system.

"In the face of unexpected budget constrictions as a result of the pandemic the assessment not only helps explain why leveraging new federal funding for counsel is so important, it also provides a useful tool for articulating the potential risks of lowering funding for children's and parents’ counsel at this period in time. "
-- Prudence Beidler Carr, Director, ABA Center on Children and the Law

About the Assessment

Dependency counsel funding changes in California provided an opportunity to assess how funding affects attorneys’ abilities to provide children and parents high-quality representation. Beginning in 2007, the Judicial Council of California approved a methodology for calculating attorney workload and funding need in each county and for the state as a whole. Some jurisdictions had dependency counsel budgets that met over 100% of their calculated need, while others met less than 50% of calculated need. In 2014, the Judicial Council provided a four-year reallocation plan to bring jurisdictions to parity across all counties, meaning they would all meet the same percentage of need at the end of four years of incremental adjustments.

In 2016, the Walter S. Johnson Foundation funded the ABA Center on Children and the Law to assess the impact of California’s budget changes and reallocation by looking at the effects on legal representation quality in sites where dependency counsel budgets decreased and sites where budgets increased. These reallocations provided an opportunity to look at how legal services providers adjusted to the funding changes over the four years of the assessment (2014-2015 through 2018-2019) and how those adjustments affected their ability to provide high-quality legal representation to child and parent clients.

Based on a careful selection process to identify only those sites where no additional factors influenced overall funding, the ABA Center assessed three locations: a large, mostly urban county with an increase in funding (Site A); a large, mostly suburban county with a decrease in funding (Site B); and a small, mostly rural county with decrease in funding (Site C). The assessment relied on three data sources – case  management systems, attorney surveys, and interviews with site participants.

Findings

The ABA Center’s assessment identified three findings:

1. Funding changes directly affected representation quality.

The primary areas affected by funding changes fall into two categories: staffing and time. Staffing is critical in delivering high-quality legal representation. Adequate staffing leads to fewer delays in the court process, consistent representation for the client, and opportunities to improve practice through training, experience, and oversight. Attorneys need to be well trained to handle complex dependency cases to best serve their clients. They also need to develop a relationship with clients that comes from consistent representation rather than rotating staff.

Attorney Recruitment and Retention

The assessment found two barriers to adequate staffing are attorney recruitment and retention. In the data across all three sites, changes in compensation, including salary and benefits, affected attorney recruitment. Assessment data also showed compensation changes affected attorney retention. Retention is critical because high turnover creates inconsistency, court delays, inefficient hiring and training procedures, and a loss of expertise.

Retention arose as a common theme across all assessment sites. Interview respondents noted that qualified and trained attorneys regularly leave child or parent practice to take a government position (e.g., County Counsel, Public Defender), which provides higher compensation, better benefits, and more job stability. These retention challenges affect representation quality because often the attorneys who move to other positions are the best trained, most experienced attorneys. Overall, attorney movement occurred in the direction of better pay and benefits.

Caseloads and Workloads

Site attorneys identified lack of time to adequately represent their clients as the greatest challenge they face in providing high-quality legal representation in both increased funding and decreased funding sites. Increased funding meant legal service providers were able to expand total staffing, which in turn led to reduced caseloads per attorney. This meant more time per case, including time for out-of-court advocacy, more time to prepare for court hearings, and more time to meet with clients. However, an attorney’s workload was also a key factor in representation quality because workload affects the amount of time an attorney can devote to all the tasks associated with high-quality representation. When more complex cases enter the system, workload per case increases despite the reduced caseload, placing additional demands on attorney time.

People will go into this work because they want to make a positive difference. They want to be able to go home at night knowing they did something to help a child or a parent or family. And when your caseload is such that the attorney just feels like they’re just chasing emergencies, they'd lose that feeling of satisfaction in their work and of making a positive difference. That adds exponentially to compassion fatigue and burnout and high turnover as much or more so than the dollars. The impact of the reduced caseload is that you have a workforce that feels good about what they're doing and then gets the energy and the motivation to deal with the trauma and the emotional toll of this work, which is extreme. I think that point is important and should not be undersold.
--Leslie Starr Heimov, Executive Director, Children’s Law Center of California

Multidisciplinary Legal Practice and Representation in Specialized Courts

Another key component of staffing is multidisciplinary legal representation, where the attorney works with other team members such as a social worker and a peer advocate (for youth) or parent advocate (for parent clients). Multidisciplinary models increase the legal services provider’s ability to meet the out-of-court case needs of children and families. Funding changes for child and parent legal representation affected some legal service providers’ ability to complement the attorney role with multidisciplinary partners to best serve client interests and needs.

Funding allocations affected multidisciplinary legal practice in the sites. In the increased funding site, for example, added funding helped the children’s legal services provider hire additional investigators (i.e., social workers for clients) and paralegals as part of the legal team, which allowed for greater client contact. Even with these increases, however, some still noted that not enough social workers who work with attorneys were available. While the ability to provide more specialized attorneys and supports for children as well as social workers to see some child clients in their homes improved, there was still not enough time to support clients and meet children’s needs. In contrast, a legal services provider in one of the sites with decreased funding wanted to establish a multidisciplinary practice but could not due to funding limitations.

A children’s legal services provider in the site with increased funding uses a multidisciplinary model in specialized courts, including treatment teams, peer advocates, mental health professionals, and special education attorneys who work with clients. Collaborative or specialized courts serve specific populations, including nonminor dependents, victims of commercial sexual exploitation, parents with substance use disorders, and dually involved youth, and can also affect staffing and caseload/workload issues, especially if attorneys in the specialized courts have lower caseloads.

High-Quality Legal Representation Tasks

Funding changes affected attorneys’ ability to devote time to the activities that comprise high-quality legal representation. Attorneys were asked if they had enough time to perform specific tasks associated with high-quality representation, such as out-of-court advocacy, building strong relationships with counsel for other parties, understanding any related litigation involving their clients, understanding what services or assessments their clients need to complete, visiting with clients outside of court, or attending case-planning meetings.

Responses varied across sites, but most parents’ counsel reported they lacked enough time to investigate and plan for contested hearings, understand what assessments or services their clients need, understand related litigation involving their client, visit their client outside court, develop a strong relationship with agency counsel, and attend case-planning meetings. Children’s counsel across all three sites similarly identified spending time outside court learning about the case, investigating and preparing for contested hearings, understanding what services or assessments their clients need to complete, and attending case-planning meetings as tasks they lacked time to perform.

How to use this information to advocate for parent and child counsel funding

Use the California assessment to explain:

• the impact of compensation on recruitment and retention of counsel, which leads to more consistency in representation and greater ability to keep the case moving without unnecessary scheduling delays, an advantage for all parties and the court.
• how decreases in caseload per attorney can help ensure attorneys meet with their child and parent clients more regularly, identify critical needs, build trust and develop stronger relationships with other counsel on the case to lead to better outcomes.
• how increases in funding can help provide greater access to multidisciplinary models of legal representation that involve an attorney, social worker, and peer advocate on the client’s team. These models have been shown to significantly improve case outcomes and time to permanency for children.
• how decreases in funding can lead to increased caseload as well as decreased retention and consistency in representation with corresponding delays and disruptions in the court process. 

2. In addition to attorney funding, other child welfare system factors affect the quality of child and parent legal representation.

Changes that directly affect attorney advocacy include:

• A child welfare agency’s approach to filing petitions. Changes in a child welfare agency’s approach to filing petitions only in cases presenting the greatest risk to child safety can reduce total caseload numbers per attorney. The change can also affect the complexity of cases coming before the court, thereby increasing the attorney’s workload per case even as the total number of cases that attorney handles goes down.
• A child or parent client’s ability to access services as part of a case plan. Unlike other legal systems in which attorney advocacy hinges on representing a client relating to allegations about prior facts, in child welfare cases attorney advocacy also requires understanding how clients (child and parent) are doing in real time. For parent clients, it requires knowing how well the parent is following the case plan and accessing required services. Service-related challenges to attorneys’ ability to advocate for their clients’ needs, regularly see their clients, perform out-of-court work, and manage their workloads may include:
  
  • Services not paid for by the child welfare agency that clients cannot otherwise afford or access.
  • Lack of co-located services and limited facilities at the courthouse, which may also affect accessibility.
  • Difficulty meeting mental health, education, and trauma-related service needs of children and families.
  • Insufficient services requiring placing children outside the county so higher-need services can be provided.
• Court funding and staffing.  Changes to court funding and staffing affect factors that shape representation quality because court backlogs limit attorney time in and out of court. Both influences can alleviate or add to workloads related to time per case. Judges from multiple sites said changes in dependency counsel funding did not align with the court’s needs and resources. Therefore, increases in funding for counsel did not necessarily improve the court’s ability to move cases forward, despite having enough attorneys to staff the court or the ability of supervisors to cover hearings. A decrease in dependency counsel funding combined with insufficient court resources also had a negative impact.

How to use this information to advocate for high-quality legal representation

You can use the California assessment to explain:

• how agency petition filing practices can affect the total attorney caseload that parent and child counsel may handle and their workload per case, which may increase when caseloads go down if an agency files petitions on more complex and difficult cases but supports families to resolve other cases outside the legal context.
• how court funding and structures directly affect case processing and efficient use of attorney and client time waiting for hearings. This is an especially relevant now when many courts across the country have transitioned to remote hearings for many cases.
• that the availability and accessibility of services for clients affects high-quality legal representation because access to services often directly bears on how the case progresses and the parent and child’s ability to reunify or reach other permanency outcomes.  

3. Factors outside the child welfare system also affected the quality of legal representation available to children and parents in the sites studied.

For example, homelessness and poverty were regularly reported as significant challenges for effective legal representation because factors such as unstable housing, lack of access to affordable transportation, or a rural location made it difficult to meet with clients and ensure they appeared in court.

Homelessness, poverty for youth and their families, and immigration status were significant challenges in all three sites. Poverty affects clients’ ability to pay for housing, services, and transportation. Lack of housing can prevent reunification and limit parent counsel from meeting with or communicating with their clients, while lack of personal or public transportation can make it hard to attend hearings or services. Courthouse location, court accessibility for attorneys and families, and time for attorneys to meet clients before hearings were challenges in each site.

How to use this information to advocate for high-quality legal representation by addressing outside factors that affect client advocacy

Use the California assessment to explain the connection between high-quality legal representation and potential influences that exist outside the context of child welfare that can affect attorneys’ ability to meet with and support parent and child clients, including:

• Transportation limitations for clients.
• Housing access and stability for clients.
• Challenges in cases involving immigration and child welfare law.

Understand and address these influences through advocacy, legislative action, and increased awareness so that supports for children and families can increase their ability to meaningfully engage in services, attend meetings with counsel, and successfully reunify and achieve permanency.

How to use this information to advocate for high-quality representation through improved data management systems

Collecting data for this assessment revealed the need for more robust data in each site to track representation quality. High data quality contributes to consistent results, reliable data, and the ability to easily interpret data. Use the California assessment to advocate for improved and refined data management systems to track important variables that better reflect the quality of legal representation and case functioning generally. Advocate for increased and adequate funding for child and parent dependency counsel with data from improved data management systems. By increasing use of robust data to study and improve practice, the quality of legal representation can be better measured and linked with outcomes for children and families.

Conclusion

This assessment presents important considerations when investing in legal representation to better support children and families in the child welfare system. Complementing existing research showing how high-quality representation improves outcomes for children and families, this assessment provides an opportunity for jurisdictions to carefully consider how to invest and allocate attorney funding to increase the quality of legal representation to best serve children and parents and for practitioners to use the findings as a tool in their advocacy.

Connecting back to the first finding, the best way to reduce caseloads is to have fewer families in our systems, and the only way to have fewer families in our systems is to either not bring them in to begin with, which is the child welfare policy piece, and the second best way to have fewer families in our system is to move them in and out efficiently and to provide them with the services they need.
– Leslie Starr Heimov, Executive Director, Children’s Law Center of California

Eva J. Klain, JD, director of the health program at the ABA Center on Children and the Law, directed the California assessment of funding changes project.

The call-out quotes in this article were drawn from a webinar introducing the funding assessment report findings and significance to California child welfare legal professionals on July 15, 2020.