A major barrier to funding legal representation in the child welfare system was basically just eradicated with an update to the question-and-answer section of a federal manual.
Yesterday, the Department of Health and Human Services (HHS) made clear that Title IV-E, the federal entitlement program for child welfare services, can now be used to pay for legal support to children and parents who are involved with the child welfare system. The decision opens up potentially millions of dollars for state and county agencies willing to spend on greater legal protections for families.
The IV-E entitlement has always offered a 50 percent split on administrative costs related to foster care and adoption. Recently, the Family First Prevention Services Act expanded the scope of the entitlement to include efforts to prevent the use of foster care in some child welfare cases.
But a previous policy guidance laid down in 2004 established that legal services to children or parents was not considered to be allowable under administrative costs. “Only the state agency’s participation in judicial determinations is an allowable cost,” the previous policy stated.
This week’s announcement reverses that.
“This change in policy will ensure that, among other things: reasonable efforts are made to prevent removal and finalize the permanency plan; and parents and youth are engaged in and complying with case plans,” said the Children’s Bureau (CB), in an update to the Child Welfare Policy Manual (CWPM).
The new policy was circulated today on federal listservs, and will be added to the question/answer segment of Section 8.1 of the CWPM. In all likelihood, a more elaborative and formal guidance will be forthcoming on the subject.
News of the policy change was celebrated by advocates who champion better legal protections for children and parents involved with child welfare agencies.
“It’s the realization of many years of progress toward acknowledging children’s basic civil rights in their own cases,” said Amy Harfeld, national policy director for the Children’s Advocacy Institute. “IV-E was always the most appropriate place to address legal representation, and now it can be accessed for that purpose.”
Vivek Sankaran, a clinical law professor at the University of Michigan, called the shift a “potential game changer in child welfare.”
“The actual [IV-E] statute doesn’t prohibit money for legal support,” he said. “But symbolically, this is the first time the need has ever been recognized. [CB Associate Commissioner] Jerry Milner has been a big proponent on this.”
There is little requirement from the federal government that either party at the heart of a child welfare proceeding – the child, or his parents – are given a lawyer. The Child Abuse Prevention and Treatment Act (CAPTA) does require that a child is represented in court, but two problems exist there:
- CAPTA’s funding is tiny, so no state really complies with its many requirements.
- The representation does not necessarily have to be a lawyer. In many states, a guardian ad litem, who may or may not be a lawyer, will suffice. In Florida, for example, just 10 percent of foster youth are represented by an attorney.
The American Bar Association’s model standards for representing kids is that for older youth, they get a lawyer that will advocate for what they want, not just what a lawyer or guardian believes is in their best interest.
Parents have even less guarantee to counsel under federal law, even when their rights as parents are at stake. In 1981, the Supreme Court decided in Lassiter v. Department of Social Services that the state did not have to provide legal counsel to a parent for a proceeding to consider terminating her parental rights.
For the best reporting ever done on the subject, read “Broken Families, Broken Courts,” a 2008 series on legal counsel for kids and parents in California by Karen De Sá, the greatest reporter on family services ever. It offers a fairly sobering view of how, with low investment in legal protections, systems blow by the requirement to make reasonable efforts at keeping families together.
In general, states have moved on their own toward some counsel guarantees for both parties. Assuming there’s no maintenance of effort attached to this new policy, it’s sort of a no-brainer for agencies to start tapping into IV-E to pay for what is already offered.
For advocates celebrating CB’s new policy, the job now begins to sell systems on the idea of spending more on legal help for families.
“That’s going to be my work from now on, convincing agencies to do this,” Sankaran said.