CBS Sunday Morning Underscores Systemic Problems; Counsel for Kids is Part of the Solution

Earlier this week, CBS Sunday Morning news shared the experiences of Vanessa Peoples, Samantha Mungai, and their respective families, with the child protection system. 

The report underscored racial and economic injustice in the system and the impossible choices families often face. It also grappled with the fact that family separation often harms children. 

The majority of child protective services investigations are for neglect, not abuse. Professor Dorothy Roberts noted: “Neglect is usually confused with poverty. Neglect is defined by most states as parents failing to provide the resources children need… because parents can’t afford them.”

And black families are twice as likely as white families to be impacted by the system. 

The system is “responding to harm and inflicting an intervention on those children in a way that causes further harm,” according to Alan Detloff. 

Children have legal rights: the right to their families, the right to sibling connections, the right to be heard, the right to be safe, the right to education, and more.  

But a legal right, without the ability to enforce that right, is often useless. When the child protection system makes the wrong decision, or threatens a child’s rights, it often requires legal representation to address it. As Vanessa People’s family’s experience showed, the only recourse to address systemic flaws came through legal representation. 

We’ve heard the same from other individuals with lived experience in foster care.

However, 14 states still don’t guarantee legal representation for children experiencing the child protection system. The one person at the center of a case is the one person who doesn’t get their own attorney.

That means courts make vital decisions about a child’s life and future—where they will live, where they will go to school, what connection they will have with family—without hearing their voice. 

Counsel for kids also reduce unnecessary school moves, help kids exit the foster care system quicker, and promote racial equity by challenging disparate treatment and ensuring fair access to court and services, among other benefits.  

We need #Counsel4Kids to protect children’s rights, ensure their voices are heard, and help address systemic issues. 

The C4K Cheat Code Revealed: Collaborative Champions and Centering Lived Expertise

The momentum around Counsel for Kids (C4K) continued to grow during the 2022 legislative session, thanks to strong legislative champions and lived experience experts.   Dedicated policy advocates buoyed C4K Campaign efforts in Colorado and Indiana this year.  In each state, diverse coalitions of youth with lived experience in the child protection system, attorneys, foster parents, and national leaders lobbied in support of client-directed representation for youth. Their advocacy highlighted the attorney’s role in holding a state accountable for its duties to children in foster care, expediting permanency, increasing well-being, and in centering and amplifying youth voice. 

This session, three state legislative champions emerged as leaders in the fight to achieve counsel for kids.  Even while committed to other pending bills, they worked tirelessely to educate their peers on the unique needs of children experiencing foster care and the positive impact of attorneys on their experience. 

In Indiana, Senator Jon Ford (R) leveraged his cooperative spirit, knowledge of foster care, and respected position to elevate the issue and encourage discussion of counsel for kids. Sen. Ford told NACC that in his state, “ […]everyone in the child welfare system is represented but the child. The very person who needs the help most doesn’t have someone working for their best interest.” He added, “I believe legal representation can get a child through the system to permanency faster and I hope with less trauma.”

Ford filed Senate Bill 180, a proposal to appoint legal counsel for children in child protection proceedings. When the bill stalled in the Appropriations committee after passing unanimously through the Family and Children Services committee, Sen. Ford skillfully pivoted. He amended the bill to request examination of children’s legal representation by an interim study committee.  Later, when the legislative council declined to assign the topic to an interim study committee, Sen. Ford announced his decision to conduct an independent study on the issue with a diverse group of stakeholders including lived experience experts, agency representatives, the judiciary, Court Appointed Special Advocates, public defenders, and other legislators.  Sen. Ford’s actions—drafting a bill, educating his peers, debating the importance of C4K—have laid the groundwork for eventual lasting change in Indiana.

In Colorado, Representatives Lindsey Daugherty (D) and Tonya Van Beber (R) successfully led the charge to pass House Bill 22-1038, legislation that guarantees client-directed legal counsel for children age 12 and older in child protection court proceedings.  As a lawyer-legislator with extensive experience as a Guardian ad litem attorney, Rep. Daugherty understood the importance of legal representation for children and the value of centering young people who have experienced foster care in any systemic reform efforts. Rep. Van Beber, the bill’s co-sponsor, has lived expertise as a young person in the child protection system, as an adoptee, and as a foster parent.  She purposefully committed to engaging a diverse array of stakeholders in a collaborative legislative process.  Rep. Van Beber told NACC, it was critical to her that “everyone who is impacted has a voice in the process” including “the youth who are at the mercy of a system that they find themselves in under difficult circumstances and through no fault of their own.”

With this dynamic duo in place, HB 22-1038 sailed smoothly and unanimously through committees to the Governor’s desk for signing.   But they were not alone:  Rep. Daugherty explained that the testimony of youth with experience in the foster care system resonated the most with her peers—helping them understand the need for client-directed legal counsel.  Support for the bill was solidified after legislators -heard directly from young people about the need for an attorney to ascertain and advance “what they actually [want].” Rep. Daugherty told NACC that,  “Empowering our youth is essential for them to create a positive future. We need to ensure that our youth have the tools and resources necessary to make something of themselves, and that all starts with amplifying our children’s voices so that they know they are actually heard.”  

Stakeholders in both Indiana and Colorado agree that effective collaboration with a bill’s legislative sponsor is key to policy reform.  Sponsors who understand the value of counsel for kids and are best positioned to persuade their legislative peers. Trust and effective communication cement the partnership between policy advocates, staffers, and the legislative sponsor.  Communicating about the schedule of committee hearings, arguments raised by opponents, and areas where constituent voice is needed are particularly vital to the advocacy campaign. 

2022’s C4K movement in Indiana and Colorado demonstrated that policy advocacy thrives with the support of committed legislators.  Thank you to Sen. Ford,  Rep. Daugherty, and Rep. Van Beber for centering the voices of individuals that have experienced foster care and championing children’s rights in the community, in committee hearings, and on the voting floor. Onwards!

Pictured Below left to right: Tonya Van Beber; Lindsey Daugherty,  Jon Ford

Alaska Foster Youth Get More Input in their Cases

Alaska foster youth will soon have more of a say in what happens with their cases. 

In early April, the Alaska Supreme Court passed Order No. 1979, which amends court rules to allow foster youth the ability to attend hearings and have court-appointed attorneys argue their own wishes in their cases….

Under the new order, youth in foster care will now have their lawyers represent their wishes when they refuse residential or psychiatric treatment, are themselves parents, want their therapy records private, or are on “runaway status” from a foster home. 

Read more in The Imprint.

Counsel for Kids Campaign Update – Spring 2022

The Counsel for Kids (C4K) Campaign continues to grow – expanding state coalitions, evolving partnerships, increasing media visibility, improving public awareness, and enhancing tools and resources to influence policymakers.
Youth should be seen, heard, and represented: watch our new video.

Technical Assistance (TA) Requests

In addition to ongoing technical assistance in Florida, Idaho, Indiana, and South Carolina, the Counsel for Kids campaign received new requests for TA from Colorado, Connecticut, and Washington. We continue to accept TA requests to advance children’s right to counsel. Technical assistance services include policy analysis, data review, policy drafting/review, resource development, campaign strategy support, youth engagement, coalition building, litigation strategies, and high-quality legal representation.

New Tools

C4K released two new tools to assist stakeholders in public education and advocacy efforts: Complementary Roles: Attorneys and CASA’s and Promoting Race Equity Check them out and share with your networks!
Our Toolkit also includes factsheets and resources on:

  • Including lived experience experts
  • Appropriations
  • Mythbusters on Counsel for Kids
  • Guide for Policy Advocates
  • How to write an Op-ed
  • Model Statute
  • Chart on Models of Representation
  • Policy Advocacy Matters slides
  • Template for a factsheet for your state

State by State Policy Update

Alaska: Supreme Court of Alaska issued Order No. 1978 making significant changes to Child in Need of Aid (CINA) rules, effective October 17th. Rule 3 guarantees a child’s right to be present and participate in court hearings and Rule 12.1 mandates the appointment of legal counsel to children age 10 or older in CINA proceedings in certain circumstances: if they refuse residential treatment or psychotropic medication; if they are pregnant or parenting; if they want to protect their therapy records as confidential or under other circumstances; or if they’ve been put on runaway status from a foster home placement. C4K provided comments on the proposed rules during the Supreme Courtscall for comment. The rule changes are a welcome expansion of access to legalcounsel for Alaskan youth.

Colorado: Governor Polis signed House Bill 22-1038 –requiring client-directed legal counsel for youth age 12 or older in child protection matters—into law on April 12th. NACC Executive Director Kim Dvorchak testified (@ minute 10:56) in committee hearings, submitted written testimony of support, and participated in the signing ceremony.

ConnecticutSenate Bill 309 would allow youth age 18-23 in extended foster care to be eligible for legal representation. NACC submitted written testimony of support for a March 8th hearing but the bill stalled in committee.

GeorgiaHouse Bill 322 would establish statewide performance measures and standards, minimum training requirements, duties, and responsibilities of attorneys representing parties in child protection matters. The bill passed the House in 2021 and was carried over for consideration by the Senate this session where it was passed by substitute, but later stalled.
House Bill 1234 would provide a right to an attorney for any child receiving extended foster care services from the Department of Family and Children Services. The bill was passed by the House Juvenile Justice committee but stalled in the Senate Judiciary Committee.

FloridaSenate Bill 948House Bill 1549 would create a statewide office of child representation and new right to direct representation by an attorney for children placed in out-of-home licensed care. The Children, Families, and Elder Affairs committee unanimously approved the bill in a public hearing, on January 11th during which lived experience experts and child welfare law practitioners testified in support. Although this bill later died in in Appropriations Subcommittee on Criminal and Civil Justice, House Bill 5001 includes a Child Representation Pilot Program in Broward and Palm Beach Counties. The Governor is expected to consider and sign the budget in coming weeks. C4K supported advocates by circulating this action alert to encourage the Governor’s support.

Indiana: Senate Bill 180 would require the appointment of legal counsel to children in abuse and neglect proceedings. On January 10th the Family and Children Services committee voted unanimously to pass the bill on to the Appropriations committee, which amended the bill to require a summer study children’s legal representation. A diverse group of stakeholders including attorneys, foster parents, and judges testified at the committee hearing on the original bill language (begins at minute 15). NACC submitted written testimony of support.

New Mexico:House Bill 46, known as “The Family Representation and Advocacy Act,” establishes a new independent Office of Family Representation and Advocacy committed to providing high quality legal representation to children and families involved in the child protection system. Governor Grisham signed it into law on March 8th.

South Carolina: C4K has continued to build relationships with key decisionmakers in South Carolina. After addressing the Joint Citizens and Legislative Committee on Children townhall, C4K supported the development of an annual report that highlights improved outcomes associated with legal representation and their utility in states with active CASA/GAL volunteer programs.

Washington: Early in the year, the Washington Association of Child Advocate Programs sought budget funding to hire attorneys to represent volunteer guardians ad litem. This request arrived just after House Bill 1219 (2021) was signed into law guaranteeing legal representation to children age 8 and up. A six-year phase-in process was established to mitigate the initial fiscal impact of HB1219. NACC submitted a letter to the house appropriations committee opposing the budget proposal that would appoint attorneys to volunteers before all children are represented. As recommended by NACC, this proviso was stricken from the final budget.

What’s Next for C4K?

This summer, we are excited to host undergraduate and graduate level interns from the Center for Law, Brain & Behavior at Massachusetts General Hospital of Harvard Medical School in partnership with clinical faculty of William James College.  The interns will research and write a white paper on the developmental capacity of school age children to direct legal representation.

The Counsel for Kids campaign is developing a comprehensive policy paper to educate legislators and staffers about why legal representation for children is necessary and how states can implement legal services delivery systems. C4K plans to publish the paper in August 2022.

How Can You Help?

To build awareness of the importance and impact of high-quality legal representation on children and families, we provide training to state groups upon request. Please notify Natalece Washington ([email protected]) about opportunities to provide public education in priority states. 

You can also send this update to your network, tell your friends about, follow @NACCchildlaw on social media, and share why #Counsel4Kids is important for your state!