Imagine you are in court, listening as the state uses legalese to explain why a judge should permanently take your family from you. This nightmare is a reality for families and children involved in the child welfare system across the country. And in that nightmare, every single one of us would want a well-trained lawyer by our side.
In July, the federal government published a new rule that codifies and expands federal funding for legal services for families involved in the foster care system. This means more families and kids will receive legal help during some of the most difficult, confusing and consequential days of their lives.
The regulation solidifies policy positions that both the Biden and Trump administrations advanced. And regardless of the outcome of elections in November, it’s important that the federal government continue to expand access to high-quality legal services for families.
When a parent is accused of child neglect or abuse, a judge determines what happens next: where the child will live, when they will see their siblings, how they will go to school and much more. These cases are complicated, often traumatic and high-stakes. Ultimately, judicial officers decide whether to permanently separate a child from their parents or not.
In a field that has become increasingly ‘data-driven,’ legal representation is backed by plenty of proof that it works. Nearly two decades of research shows – unequivocally – that lawyers improve the odds for kids caught up in this fraught process. Studies demonstrate that high-quality legal representation prevents unnecessarily long stays in foster care, maintains school stability and improves reunification rates. All of this can save taxpayers money, too.
But forget wonky studies for a moment. Even without the data, the importance of due process is self-evident. Lawyers are sometimes the last safeguard against the errors of a flawed, human system that wields immense, permanent power. It doesn’t take data to recognize that a parent should receive competent counsel before potentially losing their child forever.
And it doesn’t take a new study to understand that kids can’t file a motion or cross-examine a witness on their own. They need attorneys just as much as parents do to uplift concerns to the judge, especially when they may be unsafe in foster homes or congregate care facilities. Shockingly, 13 states still do not guarantee lawyers for children in these cases.
For many years, funding has been the primary impediment to providing access to legal counsel in foster care court cases. The federal government’s new rule — which built off action by the Trump administration in 2019 — helps solve the fiscal puzzle. It allows states to draw matching federal funds to provide legal representation for children and parents, as well as for tribes, Indian custodians and relative caregivers — all without interfering with state law.
Additionally, the regulation now makes funding available for civil legal aid to prevent a child from entering foster care in the first place. These lawyers fight to address housing, nutrition, medical, safety and other challenges — keeping families together and saving the government money.
Now it’s time for Congress to align its efforts. Recent legislative proposals are common-sense steps in the right direction, but have failed to receive a vote. In the next Congress, leaders must prioritize passing a federal mandate for counsel into law.
“We hold these truths to be self-evident,” wrote the Founding Fathers, declaring independence from a British government that quartered troops in homes and punished people without a fair trial, among other injustices. Imagine what other constitutional amendments the founders may have written if King George’s courts removed children from their families. A right to legal counsel in these cases would likely not have been overlooked.
We all want children and families to thrive in a safe, healthy and fair society. But for the child welfare system and courts to be truly fair, and buffered from human error, kids and parents need highly skilled and well-resourced lawyers – self-evident facts to remember no matter who is in power next year.
