ABA-backed Family Justice Initiative has improved access to counsel in child welfare cases
For parents and their children, the child welfare legal system can be confusing and intimidating. That’s where a good lawyer comes in.
For over 40 years, the ABA has been a leader in advocating for improved access to counsel for parents and children in child welfare cases. Those advocacy efforts previously focused on either a child’s right to counsel or a parent’s right to counsel, but not on both. In 2017, the ABA’s Center on Children and the Law played a key role in launching the Family Justice Initiative, a program that helped change the conversation by uniting national advocacy efforts to ensure both children and parents have access to counsel in these cases. The biggest challenge with this effort is securing adequate funding for that counsel.
Traditionally, federal funding could only be used to pay costs for government counsel in child welfare cases, while state and local funding was used to pay legal representation costs for children and parents.
In 2019, the Children’s Bureau at the U.S. Department of Health & Human Services altered that inequity by revising its Child Welfare Policy Manual to allow states to seek partial reimbursement for the cost of providing child and parent counsel in these cases. The ABA sent a letter commending this change as an important step toward better outcomes for countless children, parents, courts and child welfare agencies throughout the country.
Because it is optional for states to request this new federal funding, it was unclear in 2019 how quickly this rule change might help increase investments in access to counsel. Two years later, 25 states and three Native American tribes are already accessing these legal services funds.
ABA President Patricia Lee Refo said the change is having a significant impact.
“This policy has increased the availability of high-quality legal services, making a significant difference in protecting parents’ and children’s legal rights and improving outcomes for children and their families.”
Exiting foster care
Child welfare systems—which operate at the federal, state and local levels—work with children who have been separated from their families, ensuring they can live in safe, permanent and stable settings.
In most cases, children exit foster care by reuniting with their parents.
In 2019, approximately 672,600 children spent time in foster care in the United States, including 251,000 entries into foster care and 248,000 exits from it. Of those children exiting foster care, about 47% reunited with their parents; 26% were adopted; and 17% left with a legal guardian or moved in with a relative.
Legal counsel for parents and for children help children exit foster care sooner without risking their safety. From a child’s perspective, less time in foster care can mean spending birthdays and holidays at home with parents or loved ones; starting a new school in their permanent school district; or in the case of adoption, having a new last name and a sense of security.
Over the past decade, research has consistently shown that investing in child and parent counsel reduces delays in case processing, increases parties’ participation in families’ case plans, informs better judicial decision-making, produces cost savings for child welfare agencies and courts and, most important, helps children reach permanency (reunification, adoption, guardianship) at a time when they are the most vulnerable.
For example, a 2012 study of parent representation in Washington state found that children’s exits to reunification were 11% higher in counties that provided high-quality legal representation to parents.
Similarly, in a 2016 child representation study funded by HHS, children represented by legal counsel were 40% more likely, when compared to a control group, to reach permanency within six months of placement in foster care.
Besides funding legal services, the HHS policy change permits child welfare agencies to fund members of a “multidisciplinary” legal team—including social workers, case investigators and peer mentors—who can assist lawyers by helping parent and child clients outside the courtroom in these complex cases.
While nearly 40% of all eligible states, tribes and other jurisdictions are taking advantage of the new policy, more needs to be done.
The ABA will continue working with its Center on Children and the Law to help remaining states explore options to improve access to legal representation for both parents and children in their child welfare proceedings, thereby helping to improve the child welfare system for all involved.
The Family Justice Initiative is a collaboration between the ABA Center for Children and the Law, Casey Family Programs, Children’s Law Center of California, the Center for Family Representation and the Washington State Office of Public Defense. For more information, visit the website: familyjusticeinitiative.org.
This story was originally published in the June/July 2021 issue of the ABA Journal under the headline: “Advocacy Works: ABA-backed Family Justice Initiative has improved access to counsel in child welfare cases.”
This report is written by the ABA’s Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the U.S. government.