Grasping the Opportunity to Remake Child Welfare

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

 As I wrote last week, the federal government quietly introduced a momentous new funding source for child welfare systems before the holidays. The Department of Health and Human Services will now reimburse states for legal support given to parents involved in child welfare proceedings, and to their children.

This requirement will necessitate that states be creative. For example, in most parts of the country, counties pay for the costs of legal representation. So to access federal matching funds, counties might need to enter a cost sharing agreement in which it agrees to send funds to the state agency so that the agency can pay for the expenses of advocates for parents and children.

But this, in turn, will require state agencies to draft conflict of interest agreements to prevent the possibility that advocates will engage in relaxed advocacy because they are being compensated by an adverse party, the state child welfare agency. In other words, we don’t want to create a system in which attorneys are worried that their zealous advocacy might result in them not getting paid. Or one in which the state agency changes its mind and drops its support for legal representation based on a disagreement in a single case.

So how do we move forward now? I see four logical steps to start the ship moving.

First, the federal government, national foundations and other stakeholders need to persuade directors of child welfare agencies that strong legal representation for families will improve child welfare outcomes. While this evidence exists, it needs to be communicated to those in charge of agencies. To do so, a national convening for agency directors centered on legal representation would be a logical first step.

Second, state child welfare stakeholders should determine how much their state currently spends on legal representation for parents and children, and where those payments come from. Is the system funded by the state, or by counties?  This type of project would be perfect for a multidisciplinary entity, like a state Court Improvement Program team.

Once that information is ascertained, child welfare stakeholders should dream big. Assess the current quality of representation. Imagine what their system could look like if they had twice the funds to spend on legal representation. Would they create an office-based system, similar to the Center to Family Representation in New York City, which has achieved incredible results for families?  Do they wish to create a state-based system, which establishes meaningful standards and training requirements for attorneys, like the systems in Colorado or Arkansas?

Or perhaps they want a hybrid approach, with a few model offices existing within a statewide system? The potential infusion of federal funds gives stakeholders a chance to design the system they think will best serve families within their jurisdictions.

And while dreaming big, states might wish to start small, with a pilot project in a particular county. For example, one county could agree to send its legal representation funds to the state agency, so that it can receive twice as much money in return to support advocacy for families within its child welfare system. Once this type of agreement works in one county, others will be more likely to sign on.

None of this will be easy. It will take time. It will be frustrating. It might seem impossible.

But until families are provided with effective legal representation, the child welfare system will continue to struggle. Judges need lawyers to produce the information that will help them reach the right decision in a given case. Legislatures want strong attorneys to ensure that the correct laws and procedures are being adhered to.

And most importantly, parents and children need the advice of trusted advocates to guide them through the most difficult and painful time of their lives.

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.

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