An attempt to constitutionally guarantee legal counsel to children removed from their parents in Florida fell short this week, leaving proponents to mull other strategies for providing lawyers to kids in foster care.
The Constitutional Revision Commission, which is convened every 20 years, offers the straightest line to inclusion in the state constitution. Among the proposals under consideration this session was the following:
Every child who has been removed from the custody of his or her parents or a legal guardian by the state due to abuse or neglect, or is otherwise placed in the jurisdiction of the dependency court, has a right to counsel.
Florida already guarantees a guardian ad litem (GAL) to represent each foster youth in court proceedings, but does not require the GAL to be an attorney. Only 10 percent of Florida’s foster youth are represented by an attorney, according to the analysis done by the Florida Bar Association’s Standing Committee on the Legal Needs of Children. There were 39,243 youth in foster care at some point in fiscal 2016, the last year of federal data.
The proposal was projected to cost $20 million in additional annual funding. GAL guarantees are already funded at $50 million for the current fiscal year.
But the Florida Bar analysis projected a net positive impact, an indication that legal representation for foster youth would steer them home more quickly. It forecasted savings of $39 million in “reduced payments for licensed out-of-home care.”
“Long-term savings will also result from the provision of counsel to dependent children by increasing the likelihood that they leave care with a family,” the analysis said.
The proposal was not reported out favorably from the first round, which took place yesterday and is the first hurdle in a difficult process. Proposals reported out favorably must then receive a simple majority vote by the full 37-member commission, and then a super-majority vote of two-thirds.
There are four other paths to amending Florida’s constitution: through law, a citizen’s initiative, a constitutional convention or a budget reform commission.
The federal Child Abuse Prevention and Treatment Act (CAPTA), passed in 1974, requires representation for children in dependency proceedings, but does not require those representatives to be lawyers. But even that guarantee has been compromised by low appropriations for CAPTA and a lack of federal enforcement.
“CAPTA has no credibility,” said Amy Harfeld, national policy director for the Children’s Advocacy Institute (CAI), in an interview with The Chronicle last May. “There is no state in substantial compliance, no meaningful oversight. States are sending in self-certification, and [the Administration on Children and Families] is extremely clear on the fact that they are not under any threat of sanction or penalty.”
In 2011, the American Bar Association adopted a “model act” on representation for children in abuse and neglect cases. It not only supports the guarantee of lawyers, but says that each child should have “client-directed” attorneys to express their wishes, even if those wishes are contradictory to what a guardian might consider the “best interests of the child.”