How do people working in the child-welfare system determine what is in a child’s best interests? Meeting the child in question might seem a good first step. A new report from the California legal advocacy group AdvoKids, however, found that the lawyers representing foster children in court often fail to perform this basic task.
In a survey of more than 1,000 caregivers for foster children as well as former foster youth, almost two-thirds of respondents said that the appointed attorney never met with the client—i.e., the child. Forty-three percent of these children and caregivers never even received their lawyer’s name and contact information.
If it sounds like that might make proper legal representation tough, it does. Under California law, a juvenile court must appoint a lawyer for a child who is the subject of a dependency petition that alleges abuse or neglect. That attorney is supposed to “advocate for the protection, safety and physical and emotional well-being of the child” and is “charged in general with the representation of the child’s interests.”
The professional guidelines for lawyers working with such kids are well-publicized. The National Association of Counsel for Children recommends meeting with the child within 48 hours of appointment, preferably in person. After that, the American Bar Association notes, the lawyer should meet with the child when the child is around parents, foster parents, and other caregivers. They can visit him or her at school, at home, or wherever the child is comfortable. Legally requiring such visits should help, but remarkably, some of the counties with the most precise attorney-visit rules had the highest proportion of lawyers who failed to make such visits. Sadly, laws stipulating how often lawyers should meet with clients are often violated, with no consequences.
Attorneys need to interact with children, particularly younger ones, in these settings to appreciate their situation fully. You can’t have a conference with a three-year-old outside of a courtroom just before a hearing is about to begin and expect to provide competent counsel. It’s crucial to speak with the adults in these kids’ lives, particularly their caregivers. Unfortunately, the relatives and nonrelatives fostering these children are also often cut off from children’s legal representatives.
AdvoKids runs the only legal hotline in California that relatives and foster parents can contact to help them navigate the court system. Over the years, the organization has tried to track down these lawyers, often to no avail. Frustration led the organization’s leaders to conduct the study, hoping to understand the extent of the problem.
The resulting report contains the survey and excerpts from in-depth interviews with some of the subjects. Both the short and long answers hit the same themes. As Shyla, a Central California caregiver, tersely noted, “The child’s attorney has been completely unreachable the entire case. Impossible to contact. Only contacted the night before one court hearing but still the child’s wishes were not taken into consideration.”
Not surprisingly, respondents reported that when a lawyer did visit the child and got an understanding of the situation, better outcomes followed. One former foster child reported entering a new placement at the age of 14 with her autistic brother, who had been struggling in the unfamiliar environment and was not eating. She called her lawyer, who helped find a new placement for them closer to their grandmother. “My attorney is amazing, and he really is my superhero,” she reported.
In the absence of a lawyer who is advocating for the child, of course, the child’s voice is silenced. That void is then filled by the interests of others, such as the biological parents or the child-welfare agency. As the report notes, “To many caregivers and former foster youth who reported never meeting the appointed counsel or seeing them only at court hearings, the attorneys were simply ‘rubber-stamping’ the social worker’s findings and recommendations.”
Given that the law and professional guidelines are clear, how do lawyers get away with this? Often not enough lawyers are available to represent all kids needing counsel, a shortage worsened by low pay. Often, no one speaks up about lawyer no-shows. When an adult is represented by a derelict lawyer, the adult will fire him or ask the court to appoint a new one. A child not being properly represented has little recourse.
The report notes that “enforcement by local juvenile courts may be lenient or disregarded because very few complaints about appointed counsel are filed with the courts.” Why is that? “A majority of counties do not allow caregivers or other concerned adults to file complaints on behalf of the children.” In other words, the only people who know and care enough to complain are not allowed to do so.
The report has several suggestions for fixing the no-show problem, including changing the complaint rule. Another simply is to ask lawyers when they appear in court to state for the record when they last met with their client. A third and essential reform would be requiring courts or social workers to provide children or caregivers with the lawyers’ contact information.
These proposals are far from revolutionary. But absent the attention of the court system and lawmakers, foster children will continue to get inadequate legal representation. In the vacuum created by these inept lawyers, many adults will offer opinions about what should happen to foster kids. Some of those opinions will be based on self-interest; others will be ideologically driven. None can reliably represent the best interest of the child.
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