A few days before Christmas, the federal government extended an invitation to state child welfare agencies that has the potential to completely transform the system.
The invitation did not arrive with great publicity. Nor was it lengthy. Instead, it was announced in a few ordinary-looking sentences, in a very ordinary-looking email.
But looks can be deceiving. The change announced by the federal government could lead to far fewer children being placed in foster care. It could expedite the reunification of those children in care. It could increase visitation between children in care and their parents. And it could get children into permanent homes more quickly, even when they can’t return home.
So what is this change that could bring about these dramatic results? The federal government announced that it would permit uncapped, matching federal child welfare funds under Title IV-E of the Social Security Act to support the representation of parents and children in the child welfare system.
The significance of this change cannot be overstated. For decades, the federal government has overlooked the fact that a functioning child welfare system needs effective advocates for parents and children. The United States Supreme Court, in Lassiter v Department of Social Services, held that the United States Constitution does not guarantee parents an absolute right to counsel before their rights are terminated.
No federal statute requires states to provide attorneys to parents and children involved in the proceedings. And the federal government has never required states to provide legal advocacy for families in order to receive federal child welfare funding. To the contrary, for decades the federal government explicitly prohibited child welfare funds under Title IV-E from being used to support legal advocacy for families.
Without federal support, states have struggled to provide families – the overwhelming majority of whom cannot afford a lawyer – with the advocacy they need to navigate the foster care system. In some states, a parent can have their child removed without ever having received the help of a lawyer.
Others are worse, even allowing courts to terminate parental rights without giving parents an attorney. And in pretty much every state, lawyers for indigent parents are underpaid, overworked and lack important supports – like a social worker or investigator – to effectively represent clients. The reality in most jurisdictions is that families will not receive the type of legal advocacy that they deserve. But without an infusion of funding, little hope existed that the situation would change.
The new availability of federal funding to support legal representation for parents and children allows states to remake their child welfare systems to produce the outcome that all stakeholders want – more children residing safely with families, increased contact between children and parents, and expedited legal proceedings. Study after study supports the conclusion that strong legal advocacy improves the outcomes of the child welfare system.
But while this opportunity is within our grasp, it will require significant action by the child welfare community to take advantage of it. Since federal funding under Title IV-E only flows to child welfare agencies and only matches state expenditures by that agency, states must now rework their payment structures for legal representation so that the current state funds supporting representation are being spent by the agency. Unless the state agency is the entity spending the money, the state cannot receive matching federal funds.
In a second part to this column on Monday, I’ll share my thoughts on how states should think through and plan to seize this momentous opportunity.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.