Michigan Rolls Out Plan to Expand, Improve Legal Counsel in Child Welfare Court

Office of the Michigan Department of Health and Human Services. Photo: MLive.com

Michigan’s child welfare agency announced that it will work with any interested local court system to help access new federal funds available for the legal representation of parents and children in child welfare courts.

“This funding is a major step forward for families and will help prevent the unnecessary removal of children from their homes,” explained Justice Elizabeth Clement, in a statement issued by the Michigan Supreme Court late last week. “Families in crisis are sometimes overwhelmed by complicated court processes, and legal representation is a critical lifeline that can help speed permanency and reduce time in foster care.”

In late 2018, the Children’s Bureau, the federal agency that oversees most child welfare funding, quietly changed its policy in regard to the use of Title IV-E for legal counsel. IV-E is the federal entitlement program that matches local spending on child welfare services and related administrative costs.

Previously, reimbursement for legal fees was limited only to those costs associated with representing the actual child welfare agency. The bureau expanded the policy to include both children and parents.

But IV-E funds are routed to child welfare agencies, which are not responsible for the provision of attorneys to either party. That responsibility generally falls to the state or local court systems, as is the case in Michigan.

Michigan child welfare director JooYeun Chang: “If we were going to invest time and resources from an administrative standpoint to draw down these funds, we wanted to make sure this was not shifting of resources but a net gain.” Photo: U.S. Administration for Children and Families

Under Michigan’s plan, any interested counties will enter into a yet-to-be-finalized memorandum of agreement with the state Department of Health and Human Services (DHHS) to access the funds. Counties must agree that they will not simply capture the federal funds as savings – they must spend as much or more as they do now, and use the federal dollars to augment their provision of counsel.

“I can’t stress enough how important that was, it was only of value because of that,” said JooYuen Chang, senior deputy director for the DHHS Children’s Services Agency. “It was important that if we were going to invest time and resources from an administrative standpoint to draw down these funds, we wanted to make sure this was not shifting of resources but a net gain.”

Counties will have flexibility on how they choose to bolster representation, Chang said.

“It could mean paying attorneys a percentage more, going toward smaller caseloads, doing more training,” she said. The goal will be to “show what kind of child-level outcomes we can achieve” through these partnerships.

Chang also said her agency will educate counties on the interdisciplinary models of parent representation that have yielded significant child welfare outcomes in Washington and New York City in recent years. Both models pair attorneys with social workers and/or parent advocates to support parents during a dependency court case. Evaluations of both indicate faster progress toward permanency, especially reunification with parents, without increased risk of re-entry into foster care.

“We’re not going to require that, but we will make sure they know about it,” Chang said.

Access to the funding will be limited to representation for clients who have at least one of their children removed into the custody and care of DHHS. The agency will seek reimbursement from the federal government by aggregating the legal fee expenditures from each participating county.

DHHS must then add that total of expenses by the state’s “IV-E penetration rate,” the percentage of foster youth in the state who are eligible for federal funding under an income test included in the entitlement. A 2016 report by the research group Child Trends had the state penetration rate at 65 percent.

While legal counsel in child welfare cases is not guaranteed to parents under the U.S. Constitution, Michigan grants a categorical right to counsel in dependency court. But the quality and scope of legal support varies, according to Vivek Sankaran, director of the University of Michigan’s Child Advocacy Law Clinic and Child Welfare Appellate Clinic.

“In Michigan’s county-based system of representation, far too many families lack the effective assistance of counsel, due to varying caseloads, pay and training requirements, among other reasons,” he said. “This program gives counties a chance to aim high, to innovate and to demonstrate how to make sure that lawyers are responding to their client’s needs.”

On child counsel, Michigan was this year given an “A” rating on its provision of legal representation, in a national report card issued by the Children’s Advocacy Institute and First Star Institute.

Several states have already moved toward use of the IV-E legal funding, including California, Minnesota and Wyoming. Child welfare agencies in Washington and Montana have already established the requisite memoranda of understanding, and are expected to begin receiving federal funds this fiscal quarter.

In the final week of the Obama administration, the federal Administration for Children and Families (ACF) issued a memo in support of “high quality legal representation at all stages of child welfare proceedings.”

In December of 2018, the Trump administration reversed ACF’s policy on legal counsel with a simple tweak to a question in the agency’s online Child Welfare Policy Manual. Previously, ACF had forbidden IV-E to be used on legal fees for parents and children, limiting the entitlement’s reach into the courtroom to paying attorneys for the child welfare agency.

The IV-E funds for parent and child counsel are only available in cases that involve a child who is IV-E eligible, which is based mostly on the income level of a child’s parents or caregivers. In Michigan, about two-thirds of children in foster care are IV-E eligible.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.