The Family Justice Gap

    In July, the Governor of Minnesota signed a critical piece of legislation requiring courts to appoint lawyers in foster care cases for parents who cannot afford them. Years of tireless advocacy culminated in the enactment, and local leaders predicted it will help reduce Minnesota’s foster care population and address glaring racial inequities in their foster care system. 

    Certainly, those who worked hard to achieve this legislation should take pride in this accomplishment. But the rest of us in the child welfare system should take a step back and reflect about how we have been complicit in allowing a system to separate children from their parents with affording families a basic modicum of due process. Consider these realities.

• In Montana, a child welfare agency can take children away from their parents for 20 days before a court must even hold an initial hearing.
• In Georgia, a lawyer representing a parent in a termination of parental rights appeal might not even get the court of appeals to consider the merits of the case because there is no automatic right to appeal the destruction of one’s family. 
• In Virginia, a lawyer representing a parent can only make $120 for their work on the case.

    This is just the type of the iceberg. Speak to lawyers who represent parents across the country and they’ll highlight the everyday indignities they endure that affect their ability to represent their clients. They don’t get documents the agency submits to the court. They aren’t allowed to attend out of court meetings between their clients and agency caseworkers. 

    They get chastised for filing motions, requesting trials or challenging “junk expert testimony” that makes its way into child protective proceedings that would be impermissible in any other legal system. They file appellate briefs without actually getting the transcripts from the trial court proceedings.

    These indignities occur in our plain sight. We see them every day but allow them to fester. We silently acknowledge that parents don’t get a fair shake in the system we’ve designed. But we remain quiet. So consequently, it takes Minnesota decades to afford such a basic right as giving parent a lawyer before their family is separated and perhaps destroyed. Family justice has simply not been a priority in child welfare.

    We can change this trajectory by asking ourselves a simple question: would we tolerate the system we’ve created for someone we care about? If your sister lost her children to the foster care system, would you be okay if she had to wait nearly three weeks for a court hearing?  If your brother was assigned a lawyer who could make more money working a few hours at a fast food chain, would that feel like justice?  If your aunt had an attorney who had to advocate for her without actually receiving the evidence the other side was relying on, would you think she got a fair shake? 

 

    None of us would tolerate these things for people we care about. And yet, while we publicly profess the need to stop the “othering” of families in the child welfare system, our actions tell a different story. “Those” families in the system don’t deserve the type of justice all of us expect.

    We must make family justice a priority in our child welfare work. Officials in President Biden’s Children’s Bureau can lead by creating a commission or funding a study to reveal the plethora of family justice gaps in today’s foster care system. Child welfare agency directors can speak openly and frequently about the changes needed in their states for families to experience justice. Judges can share outrage about the lack of due process in their courts, instead of tolerating a broken system that doesn’t resemble what courts should look like. 

    Change might happen quickly if institutional agents – like federal officials, state child welfare directors and judges champion this cause. When those charged with running our foster care system start speaking out about the family justice gap, perhaps we will see meaningful change.  

    Until then, we can continue to celebrate things that should have been accomplished decades ago.