Redesigning The Delivery Of Legal Services To Prevent Children From Entering Foster Care

Imagine, for a moment, that we redesigned the delivery of legal services to prevent children from unnecessarily entering foster care.  What would that look like?  How would we allocate resources?  Would it be effective?  Four fundamental principles inform my thinking about these questions. 

First, struggling families need access to legal advocacy well before a problem turns into a crisis.  Consider a family about to become homeless due to a wrongful eviction.  Or a single mother improperly being denied public benefits.  Think about a kid acting out in school and at home because administrators are unwilling to offer him the special education services he is legally entitled to.  Lawyers can play an integral role in solving these problems.  And each of these problems, if unresolved, could add significant stressors to a family that could destabilize a family unit. 

Second, families in crisis – that is those involved with Child Protective Services (“CPS”) – need access to legal assistance to both advise them of their rights during the process and to help them resolve any collateral issues that implicate a child’s safety.  Understandably, parents involved with CPS are scared, don’t trust the motives of the agency, and are often unwilling to cooperate.  This, in turn, leads CPS investigators to misinterpret the parent’s behaviors, assume culpability and infer negative findings even though it is the parent’s fear that is manifesting itself.  Parents need advocates they trust throughout this difficult process to provide them with information, counsel them, get important information to CPS and to inform the agency of ways a child can safely remain at home.

At the same time, these lawyers can also help resolve collateral issues related to the child’s safety in the home.  For example, a lawyer could obtain a personal protection order to prevent an abusive boyfriend from harming the family.  Or she could get a custody order to limit the visitation rights of an unsafe parent.  The lawyer could help a putative father establish paternity so that he could care for his child while the mother addresses her issues.  These are but a few of the myriad ways in which a lawyer could assist a family during the CPS investigatory phase.

Third, if CPS removes a child from her home, parents must have a lawyer either at – or preferably before – the first court hearing.  Research clearly demonstrates that removing a child from her home is perhaps the most toxic intervention at the State’s disposal.  So when it happens, systems must make sure that it is absolutely necessary to protect a child.  Thus, the first court hearing, at which the decision to remove the child is reviewed, is the most important hearing in the case.  At that hearing, the parent’s lawyer must litigate important questions including whether 1) the child needed to be removed, 2) efforts were made by the State to prevent removal, 3) the child can remain safely in the home with services, and 4) any relatives are available to care for the child.  Only with this type of zealous advocacy can we assure ourselves that removal of the child was the only option.

Fourth, if a child remains in foster care, the lawyer must continue working on the case, but the bulk of her advocacy should occur outside of the courtroom.  Key decisions are made at informal meetings, administrative hearings and on phone calls.  By the time of the court hearing, actors with considerable sway over the judge – caseworkers, guardians ad litem, CASAs – have already made up their minds about decisions over visitation, placement and services.  Lawyers looking to reunify families must be a part of these conversations.  And similar to the CPS investigation phase, these lawyers must also handle collateral legal issues – such as housing, custody or public benefits – that could impact the family’s ability to reunify. 

If we want to design a “child welfare” system that seeks to minimize the separation of families, these four pillars would anchor the provision of legal services.

So is our current system close to this reality?  Consider the evidence for yourself. 

·        Seventy-one percent of low-income households experienced at least 1 civil legal issue in the past year.  Twenty-five percent had more than 6 legal issues.  But only 20% of low-income Americans even sought legal assistance to resolve their problems.  Of those who did, most could not find help.  As a result, over 80% of civil legal problems reported by low-income Americans received no or inadequate help.  That equals approximately 1.1 million unresolved legal issues per year.

·        Parents rarely receive legal assistance during the CPS investigation phase.  While grant-funded pilot projects, like the Detroit Center for Family Advocacy, were extremely effective in providing families with this type of advocacy and keeping kids out of foster care (the Center achieved its objectives in 98.2% of cases), no sustained government funding exists to support these types of programs.

·        Many parents do not receive the assistance of an attorney at their first court appearance.  Those that do usually meet their attorney for a few minutes before the hearing.  As a result, most removal hearings are short and perfunctory, resulting in the continued removal of the child from the home.  In other words, all too often, the decision to remove the child is not closely scrutinized by anyone.

·        After the removal hearing, many of the lucky parents that actually get lawyers (again, not all parents are given lawyers) have little interaction with their lawyers, seeing them in the courtroom during subsequent hearings, and not much else.  Those attorneys often have high caseloads as a result of extremely low pay.  In unlucky parents in some states can even have their rights terminated without ever receiving the assistance of a lawyer. 

If we really wanted to prevent children from needlessly being taken away from their families, would we ever design a system that looks like the one we have?

As we move forward, we must build a child welfare system that seeks to reserve foster care’s nuclear option – removal – for the most extreme cases.  Here are some steps that we can take right away to do that.

·        Directors of child welfare agencies, judges and other stakeholders must embrace legal advocacy for parents at all stages of the process and must clearly (and loudly) state that we cannot have a functioning child welfare system without this type of advocacy.  Because legal advocacy is necessary for the proper and efficient administration of the foster care system, federal funds under Title IV-E should be available to support it.

·        Using the four principles above as a guidepost, stakeholders must examine how their jurisdiction delivers legal services to families, identify gaps and begin to develop a plan on how to address them, which must include increased funding.

·        In addition to federal funds available through the Court Improvement Project, child welfare agencies should use funds under Title IV-E to train parent attorneys, and should involve parent attorneys in the development of the state Title IV-E plan that is submitted to the federal government.

·        States must train parent attorneys differently, with a focus on engaging clients in the process and solving problems, as opposed to just in-court trial skills.  States should engage the broader legal services community as well to handle collateral legal issues on behalf of parents involved with the system and to train parents’ attorneys on how to handle frequently occurring issues.

·        States should use Court Improvement funds and foundation grants to support pilot projects – specifically at the pre-removal stage – to demonstrate the impact that legal advocacy can have to prevent unnecessary removals.

Recently, Dr. Charles Nelson, professor of Pediatrics at Harvard Medical School said about the impact of removal, “There’s so much research on this that if people paid attention at all to the science, they would never do this.”  The challenge before us is to reconstruct our legal system to ensure that the irreparable trauma we inflict on children every time we remove them is absolutely necessary to protect their safety.


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