Representing Child Welfare Clients: Best Practice Considerations

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

On January 17, 2017, the U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau issued new federal guidance on the importance of quality legal representation for child welfare system clients. The guidance shares research, best practices, and strategies to promote quality legal representation for parents, children, and child welfare agencies at all stages of child welfare proceedings. It stresses the value of early appointment of counsel, training and specialization for child welfare attorneys, and the need for a multidisciplinary team approach to representation. 

Best practice considerations from the guidance are reprinted here. Readers are encouraged to read the full Information Memorandum.

There are a number of strategies that a jurisdiction can employ to ensure high-quality legal representation for all parties in child welfare proceedings. Each of the strategies can be adjusted in scale and approach to meet the unique characteristics and resources available in all jurisdictions. There are also a number of best practices that attorney offices or independent attorneys practicing child welfare law can adopt to provide high-quality legal representation. Both structural and attorney best practices are included below. 

Structural Best Practices to Ensure High Quality Legal Representation 

• Adopt, implement, and monitor statewide standards of practice for parents’ attorneys, children’s attorneys and agency attorneys. 
  
  
• Implement binding authority or constitutional protection requiring parents, children and youth to be appointed legal counsel at or before the initial court appearance in all cases. 
  
  
• Develop a formal oversight system for parents’ attorneys and children’s attorneys to ensure quality assurance. This can be achieved through the creation of an office, the addition of a division to an existing office such as the public defender’s office, as a duty for the presiding family court judge, through the work of a committee or by any other means that are used to ensure accountability and continuous quality improvement. In determining the assignment of oversight responsibilities, it is important to address any conflict of interest issues. 
  
  
• Require mandatory initial child welfare training for parents’ attorneys, children’s attorneys and agency attorneys. Where resources do not exist for in-person training or geographical challenges make attendance difficult, states are encouraged to explore distance learning and online training experiences. 
  
  
• Institute mandatory annual training requirements for parents’ attorneys, children’s attorneys and agency attorneys. Child welfare law and regulations and court rules change regularly at the state and federal level. It is important to have an effective way to keep all attorneys up-to-date. Annual update or “booster shot” trainings are one effective way to ensure all practitioners are kept current in law and practice. 

• Support adequate payment and benefits to “professionalize” this type of law practice, and move from a contract system with competing priorities to an employment system like other indigent and state agency representation. 
  
  
• Support a payment system for parent and child representation that is designed to promote high-quality, ethical legal representation and discourages overly large caseloads. 

Attorney Best Practices to Provide High-Quality Legal Representation 

• Communicate regularly with clients (at least monthly and after all significant developments or case changes) and in-person when possible. 
  
• Ensure that language translation services and other accommodations to ensure equal access and full participation in all processes are available to all clients at all stages of child welfare proceedings. 
  
• Thoroughly prepare for and attend all court hearings and reviews. 
  
• Thoroughly prepare clients for court, explain the hearing process and debrief after hearings are complete to make sure clients understand the results. For children this must be done in a developmentally appropriate way. 
  
• Regularly communicate with collateral contacts (i.e., treatment providers, teachers, social workers). 
  
• Meet with clients outside of court (this provides attorneys an opportunity to observe clients in multiple environments and independently verify important facts). 
  
• Conduct rigorous and complete discovery on every case. 
  
• Independently verify facts contained in allegations and reports. 
  
• Have meaningful and ongoing conversation with all clients about their strengths, needs, and wishes. 
  
• Regularly ask all clients what would be most helpful for his or her case, what is working, and whether there is any service or arrangement that is not helpful, and why. 
  
• Work with every client to identify helpful relatives for support, safety planning and possible placement. 
  
• Attend and participate in case planning, family group decision-making and other meetings a client may have with the child welfare agency. 
  
• Work with clients individually to develop safety plan and case plan options to present to the court. 
  
• File motions and appeals when necessary to protect each client’s rights and advocate for his or her needs. 
  

Providing high-quality legal representation to all parties at all stages of dependency proceedings is crucial to realizing these basic tenets of fairness and due process under the law. Research shows legal representation for all parties in child welfare proceedings is linked to increased party engagement, improved case planning, expedited permanency and cost savings to state government. Jurisdictions should work together to ensure all parties receive high-quality legal representation at all stages of dependency proceedings.

Benefits of Legal Representation for Child Welfare Clients

[L]egal representation for children, parents and youth contributes to or is associated with: 

• increases in party perceptions of fairness; 
  
• increases in party engagement in case planning, services and court hearings; 
  
• more personally tailored and specific case plans and services; 
  
• increases in visitation and parenting time; 
  
• expedited permanency; and 
  
• cost savings to state government due to reductions of time children and youth spend in care. 

The decisions courts make in child welfare proceedings are serious and life changing. Parents stand the possibility of permanently losing custody and contact with their children. Children and youth are subject to court decisions that may forever change their family composition, as well as connections to culture and heritage. Despite the gravity of these cases and the rights and liabilities at stake, parents, children and youth do not always have legal representation. Child welfare agencies also sometimes lack adequate legal representation. In some states parents or children may not be appointed counsel until a petition to terminate parental rights has been filed. The absence of legal representation for any party at any stage of child welfare proceedings is a significant impediment to a well-functioning child welfare system.

^{Reprinted from IM-17-02: High Quality Legal Representation for All Parties in Child Welfare Proceedings, January 17, 2017.}

Promoting Procedural Justice in Child Welfare Cases

Lack of trust and lack of familiarity with the child welfare system can create significant barriers to engagement, especially for youth and parents. Lack of engagement can stand in the way of identifying strengths, needs and resources and impede all elements of case planning. When a parent or youth is unable or unwilling to engage with child protective services or agency caseworkers it is less likely that they will feel the process is fair. 

Research supports that when a party experiences a sense of fairness, he or she will be more likely to comply with court orders, return for further hearings, trust the system, and will be less likely to repeat offenses.¹  In the legal field, this feeling of fairness or trust in court proceedings is known as procedural justice. Researchers have identified four key components to procedural justice: 

• Voice—having one’s viewpoint heard; 
  
• Neutrality—unbiased decision makers and transparency of process; 
  
• Respectful treatment—individuals are treated with dignity; 
  
• Trustworthy authorities—the view that the authority is benevolent, caring, and genuinely trying to help.²

Several studies and program evaluations examining legal representation in child welfare proceedings have identified competent legal representation as a key element in enhancing party perceptions of procedural justice. A small study in Mississippi compared the outcomes of child abuse and neglect cases for parents who did and did not have legal representation in two Mississippi counties.³ Parents who were represented by an attorney believed that they had a greater voice in determining case outcomes, and they understood the court process better than parents without attorneys. In addition, preliminary findings indicate a trend toward more positive outcomes in cases where parents were represented by an attorney: they attended court more often, stipulated to fewer allegations, and had their children placed in foster care less often. 

The importance of procedural justice has also been recognized by the Conference of Chief Justices and the Conference of State Court Administrators. In 2013, the Conferences jointly adopted a resolution to support and encourage state supreme court leadership to promote procedural fairness, identifying procedural justice as critical for courts to promote citizen’s experience of a fair process.⁴

^{Reprinted from IM-17-02: High Quality Legal Representation for All Parties in Child Welfare Proceedings, January 17, 2017.}

Sources:

1. See generally Leben, S. & K. Burke “Procedural Fairness: A Key Ingredient in Public Satisfaction.” Court Review, 44, 2007-08, 4-17; Tyler, T. & N. Zimerman. “Between Access to Counsel and Access to Justice: A Psychological Perspective.” Fordham Urban Law Journal 37, 2010, 473-507; Tyler, T. “Procedural Justice and the Courts.” Court Review 44, 2007-08, 26-31; Tyler, T. Why People Obey the Law: Procedural Justice, Legitimacy, and Compliance. New Haven: Yale University Press, 1990.

2. Tyler, T. & N. Zimerman, 2010, 473-507.

3. National Council of Juvenile and Family Court Judges. Exploring Outcomes Related to Legal Representation for Parents Involved in Mississippi’s Juvenile Dependency System, Preliminary Findings, 2013 

4. Conference of Chief Justices and Conference of State Court Administrators. Resolution 12: In Support of State Supreme Court Leadership to Promote Procedural Fairness, 2013.