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July 04, 2018

Reshaping Child Welfare in the United States: Lawyers as Partners in Prevention

By 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. 

As a former state child welfare director from a state once subject to a class action lawsuit because it was not serving children and families well enough, it might seem odd that I firmly believe attorneys are critical players in a well-functioning, effective child welfare system in the United States. I do not believe lawsuits are always effective in fundamentally reshaping child welfare systems, and I certainly believe they should not be necessary in the first place. However, in some instances they drive how state child welfare systems operate and how children and families experience the system.

In Alabama, where I spent a number of years working in the child welfare system, the nature of the litigation and resulting consent decree which was atypical of most state child welfare settlements, brought many positive changes for children and families. This was largely because the plaintiffs sought something more than a mechanical consent decree that might have led to counting widgets rather than achieving real changes. The decree called for the state to re-envision how it serves children and families, and shape much-needed changes around core values and principles that included:

  • respecting the parent-child relationship,

  • taking an individualized approach to casework practices and service delivery, and

  • valuing the voices of families and children.

While the decree prompted the change in direction, the success of the effort rested with the state’s commitment to doing better by children and families.

To achieve the desired improvements, nothing short of a culture change was necessary. Although it took many years to institutionalize, the culture changed as the system’s stakeholders adopted a set of guiding values and principles and truly began to see their roles and purposes as family strengtheners and children and families as the beneficiaries. The re-envisioned system required enhancing partnerships, including between the legal and judicial community and the child welfare agency, that otherwise would not have been in place. It also enabled joint ownership across the child welfare system of the better outcomes we all wanted for children and families. Change of this order and magnitude should not be forced by litigation -- it can be a choice.

Prevention: A Federal Priority

At the Children’s Bureau, the federal agency responsible for administering the Title IV-E and IV-B programs that fund much of the states’ foster care, adoption, and child protection programs, we believe the evidence is clear that child welfare in the United States needs a radical transformation in its funding, programs, and its definition of what child welfare can and should achieve. Too often, we use foster care as our primary intervention to protect children, and lack the flexibility in funding and services to respond to families’ needs before they are in crisis and harm to children has occurred. This approach has resulted in growing numbers of children in care, over four million reports of child maltreatment in the most recent reporting year, poor outcomes for children and families, and perpetuation of intergenerational cycles of trauma, maltreatment, and family vulnerability. Certainly, these are not the outcomes we hope to achieve, nor are they the outcomes children and families deserve.

One key message I hear from youth and parents who have experienced the child welfare system is that things could have been different. Far too many youth who have experienced foster care express their disappointment and heartache that their parents or caregivers did not receive support early enough -- support that may have allowed them to remain safely at home. It does not have to be this way.

Children’s Bureau Vision

Strength through Partnerships

The vision of the Children’s Bureau begins with recognizing that the child welfare system is much more than the child welfare agency alone -- it includes many other agencies and organizations that touch the lives of children and families and affect the outcomes they achieve, including courts, schools, medical and other service providers, public and private agencies, communities, and more. It is a vision that cannot and should not be possible to achieve without the support and partnership of the legal and judicial community.

Helping Families Thrive

Our vision is grounded in a firm belief that the charge and responsibility of the child welfare system should include preventing child maltreatment and the unnecessary removal of children from their homes, in addition to responding to those situations where children cannot remain safe in the care of their families. We think it is possible to support families so they thrive, not simply avoid contact with child protective services. I’m confident there are children in foster care whose families could have remained intact and even thrived had effective prevention services been available and provided.

Supporting Families Where They Live

We believe services that strengthen critical protective factors should be available to all families, in their communities, when families need and desire assistance. Such services, offered in nonthreatening environments by local organizations and partners that are known and trusted and in tune with community needs, can equip families with the resilience and capacity to avoid the trauma of maltreatment and family disruption. Our vision includes the pursuit of flexible federal child welfare funding that state and local agencies can use in partnership with other stakeholders and funding sources to support and enable community-based, primary prevention-focused environments – in contrast to the current imbalance of federal funding for foster care placements.

Maintaining Family and Community Ties

Even when it is not safe for a child to remain at home, we believe the value of family to a child remains strong. We can address that value by placing children with kin and keeping them in their communities where they can maintain important ties, continue to have as much contact with parents, siblings, extended family, neighbors, and friends as possible, and avoid school disruption. We support recruiting foster parents who welcome birth parents into their homes to provide a safe, nurturing environment for families. While the physical safety of children must remain paramount, we should do everything we can to promote and enhance the broader well-being of children and families. This means giving attention to social and emotional needs and making efforts to avoid additional trauma when foster care is necessary. This part of the vision doesn’t necessarily require more funding to achieve, but it does require a commitment to serving children and families differently than we do now. It also requires advocacy and engagement from the legal community.

The Role of the Legal Community

Attorneys and judges are essential to bringing this vision to life, committing to unified guiding values and principles, and adhering to those values and principles in their daily practices. Aggressive efforts to keep families together safely, working diligently to promote child and family well-being, and recognizing the role of community supports are key areas where the legal and judicial communities can make a difference.

We must work together under a jointly owned vision to strengthen families and prevent child abuse and neglect as our main interventions and common cause. It is an unfortunate reality that child protection and foster care will always remain necessary; however, we believe that maltreatment rates and the need for foster care can be reduced, and it is our shared duty and moral obligation to do all we can to move in that direction.

In the end, we can achieve together what plaintiffs’ attorneys in class actions, social workers that enter the field, judges, attorneys for parents, children and the child welfare agency all ultimately seek -- better outcomes for children and families. Our best shot at achieving those outcomes begins with thinking about the system we are all a part of differently, and each committing to be agents of change.

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


Children’s Bureau

The Children’s Bureau has funded research and technical assistance to improve legal representation for children, parents, and child welfare agencies. Information on these efforts are available on its website.

Court Improvement Program (CIP) Talks

On February 28, 2018, the National Center for State Courts (NCSC) hosted this event designed by the Children’s Bureau in collaboration with the Capacity Building Center for Courts. "How Judges and Attorneys Help Strengthen Families” featured succinct talks by 10 nationally recognized child welfare experts discussing the roles that courts and attorneys play in keeping families healthy, strong, and together.

Capacity Building Center for Courts

The Center for Courts focuses on building the capacity of court improvement programs to improve child welfare practice in the courts and legal community.