Last September, the Biden administration proposed a new rule that would codify and expand on federal support for legal counsel to parents and children in child welfare cases. This week, it finalized the plan with only a few modifications around flexibility in cases involved Native American children and families.
“This finalized rule is another affirmation of the importance of high-quality legal representation,” said Allison Green, legal director for the National Association of Counsel for Children. “We’re especially thrilled to see the rule’s expansion further upstream, to support the critical civil legal aid work that helps keep children out of foster care.”
During the Trump administration, the use of IV-E funds to pay for legal counsel was greatly expanded. Whereas before federal funds could only help pay for the child welfare agency’s lawyers, as of 2019 it could also be used to pay for 50% of the cost of lawyers for both parents and children involved in child welfare cases.
That expansion came in the subtlest of policy shifts: essentially, the online Q&A section of the federal Child Welfare Policy Manual was updated without any other fanfare. But over the next five years, that shift led to hundreds of millions of dollars flowing to states for parent and child counsel. It came about at the same time as the Family First Prevention Services Act, legislation aimed at creating a path for IV-E funding to support parenting, mental health and substance abuse support aimed at preventing entries into foster care in some cases.
This rule on legal counsel more firmly implants the federal participation in funding legal counsel, and also makes clear that this extends to legal support aimed at preventing families from ever facing a separation. That work, which has come to be known as “pre-petition” counsel, helps parents at risk of further child welfare entanglement address things like eviction notices, protection orders and other civil legal matters. Click here for Youth Services Insider’s explainer from when the proposed rule was introduced.
Jerry Milner, who served as associate commissioner of the U.S. Children’s Bureau under Trump, told Youth Services Insider that the funds for counsel could “potentially be more impactful than the Family First Prevention Services Act in preventing family break-up by taking on the social conditions and civil circumstances that often lead to agencies removing children from their parents.”
The administration drew just over 100 comments from the public on the proposal, almost entirely in support of it. The only changes made in the wake of those comments relate to counsel for Native American families and tribes. The final rule makes clear that federal IV-E funds to pay for independent counsel for “Indian custodians” of children (either parents or those with temporary legal custody); that the funds can be used to support non-attorneys to assist tribes; and that tribes do not have to intervene in a case for legal counsel to be supported.
“This is a good day for justice,” said David Kelly, who served as a senior advisor to Milner at the Children’s Bureau and now leads a consulting group with him. “The final regulation will help ensure that parents and youth are seen, heard and have agency over what happens to their families.”
Stories like these take time and many resources to produce. We can’t do this without support from our community. Donate today – any amount makes a difference.
