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A Child's Right to Counsel

Children are the vulnerable parties in child abuse and neglect cases, with every aspect of their lives at stake when they face removal from their families or enter a courtroom.

Dependency courts dramatically shape a child’s future and have complete authority over the children in their custody. In child abuse and neglect cases, the judge is the legal parent, deciding who the children live with, where they will go to school, and what their relationships with their family will be. Judges consider the counseled positions of the state and parents through their attorneys, but in many states, the child has no attorney and their voice is omitted.

Quality legal representation is essential to protecting the basic constitutional rights and privileges of all parties, including children. Research indicates that legal representation for children is associated with better outcomes, shorter times in foster care or expensive group home settings, and cost-savings for states.

In 2017, 3.5 million children received an investigation or alternative response for child abuse or neglect, and 674,000 were deemed to be victims of abuse and neglect at the hands of their parents or guardians, according to U.S. Department of Health and Human Services (HHS) data. An estimated 1,720 children died in 2017 as a result of maltreatment.

Children who survive abuse and neglect often “age out” of the foster care system unemployed, homeless and at high risk of experiencing mental health problems, incarceration and other traumatic outcomes. Only about half receive high school diplomas, and only 3 percent of former foster youths receive a bachelor’s degree. These are not outcomes we would accept for our own children, and they are not acceptable for these children, who are “ours” by their status as wards of the state.

Despite improved outcomes and reduced costs, and the benefits to children of protecting their fundamental liberty interests by ensuring that judges consider their voices, many states still don’t provide quality legal representation to abused and neglected children.

Our latest report analyzes and grades state statutes based on six criteria, including whether independent counsel is required for children, is provided for all related proceedings, is client directed, must undergo multi-disciplinary training, and must maintain confidentiality and liability under professional responsibility standards and whether the child has party status. Extra credit is provided if the statutes establish caseload standards.

This report card (A Child’s Right to Counsel, 4th Edition) finds steady progress among most states in providing counsel to maltreated children and very good models in place in over half of the states, but nearly two dozen states still fail to protect the legal rights and interests of abused and neglected children by not providing them with appropriate legal representation.

State grades have increased steadily between 2009 and 2018, with 31 states showing improvement. Our current report gave a record 19 states an “A” grade, which represents a significant increase over the past decade. But the report also shows 11 states receiving “D” or “F” grades, indicating that the legal rights and interests of children there are getting short shrift and leaving them vulnerable to further harm. Another 11 “C” and 10 “B” states have statutes in place that better provide counsel, but fall short of the representation recommended by the American Bar Association’s best practice measures.

The Children’s Bureau at HHS recently issued a policy directive allowing federal dollars to flow to states to help pay for legal representation in child welfare proceedings. States can claim federal matching funds through Title IV-E of the Social Security Act to help pay up to 50 percent of the costs of legal representation for both children and parents in these cases. Before this change, matching funds were available to help pay for attorneys representing child welfare agencies, but not children’s or parents’ attorneys.

This federal policy change recognizes that legal representation of abused and neglected children, parents and agencies not only helps protect their legal rights but also helps create better outcomes for children and families. And it serves state interests by reducing costs and long-term dependency.

We strongly encourage all states to take advantage of this federal money to establish quality programs or improve existing programs to provide legal representation to children. States that fared poorly in our analysis have an opportunity to better protect the rights and amplify the voices of children in their child welfare systems. Stakeholders from the local level to Congress all have a role to play in moving towards a day when there is a decisive national right to counsel for all abused and neglected children, just as there is in criminal cases.

Professor Robert C. Fellmeth is the founder and executive director of the Children’s Advocacy Institute, and is the Price Professor of Public Interest Law at the University of San Diego School of Law.

Noy S. Davis, vice president of The First Star Institute and a lead author of A Child's Right to Counsel, has been an advocate for abused children for more than 20 years.

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