Updated: May 28, 2020
As we enter a new year, we find ourselves in a familiar position—more kids are entering foster care than are leaving. This means increasing caseloads, which affect every aspect of the child welfare system. Children’s attorneys struggle to represent their clients, often finding themselves putting out fires and preparing for hearings the day before they go to court. From high caseloads to lack of resources to help families and to overcrowded court dockets, many elements of the child welfare system seem out of our control. But what if there was another way, right now, for children’s lawyers to dramatically improve the lives of individual clients and the system as a whole? We believe that there is.
We are four lawyers from three states who share a common belief—that advocacy is the answer to our struggling child welfare system. You may wonder, how can children’s attorneys transform the child welfare system? We believe attorney can do this, but only if there is a culture shift in our profession. We know what we are suggesting may sound unrealistic to some—but stay with us. By the end of this article, we hope you will be ready to join our effort to elevate our profession and take charge of getting our clients home.
While there have been many strides in the area of children’s law, we are still a relatively young profession compared with other professions that serve children—such as pediatric medicine, which is mentioned in ancient texts from the sixth century BC. We got our start in 1874, when an attorney rescued an orphan, Mary Ellen Wilson, from abusive adoptive parents in Hell’s Kitchen with a writ of habeas corpus. There were no laws protecting children from abuse, so that lawyer, Elbridge Gerry, founded the New York Society for the Prevention of Cruelty to Children. It was the first child protection agency in the United States. Even though it was a child’s attorney who first took action to systemically protect children in our country, it was not until 100 years later, in 1974, that the federal government would pass the Child Abuse Prevention and Treatment Act (CAPTA). While CAPTA does require some form of representation, it does not do enough to promote quality. The real drivers of effective representation are mainly addressed at the state level: training, caseload size, compensation, and accountability. This has resulted in wide variation among states, with children receiving representation in many different forms and structures.
For 44 years, children’s attorneys have struggled to remove our common roadblocks because we are constantly putting out fires. When we do have time to think globally, we tend to pull in opposite directions. We argue about the nuances of representation that do not affect the majority of children. Some of us take up the banner of due process, believing that every child having some kind of counsel should be the ultimate goal. Others believe that holistic representation is the goal—having enough lawyers and trainings and conferences to address every possible need a child could have. And many, many lawyers are just trying to keep their heads above water, doing the best they can to represent too many children with too little time.
As we speak to children’s lawyers from across the country, we find that the practice looks drastically different from state to state and, in some cases, from county to county. There are, however, some unfortunate constants: high caseloads, low compensation, inadequate training, and lack of supervision. There are other problems, but these are the four constants. At least one and probably some combination of the four are present in your jurisdiction. How would the practice be different if we were specialized doctors, rather than specialized lawyers? To return to the pediatric medicine metaphor—we essentially operate as the legal equivalent of pediatric trauma surgeons. We just are not resolving physical problems; we are resolving much more complex emotional, familial, and behavioral problems for our clients. And we must agree as a profession that all of these problems are best resolved in the context of a permanent family. That is our shared role. It starts with recognizing our value as professionals and demanding respect by achieving results for our clients. And it ends with a drastically changed child welfare landscape where the child’s attorney is not an afterthought but is instead the person whose vision guides the child home. Would pediatric trauma surgeons be asked to work on 150 to 200 children at one time? Would they be asked to do it without nurses or physician’s assistants? Would surgery be scheduled every half hour of the day? Parents would not stand for this. But the children we represent don’t have another option. They get us, in whatever form we take. Our role is critically important to our clients, and we must hold ourselves accountable.