Why An Attorney May Not Be Enough In Child Welfare Cases

By Kevin Penton | July 14, 2019, 8:02 PM EDT

Jason Bragg was confused. He felt angry. But more than anything, he wanted his son back.

Washington authorities removed the 4-year-old from his father's custody in January 2012 after receiving reports of drug use by Bragg. It took 20 months for the ensuing child welfare case to be dismissed and for Bragg to fully regain custody of his son.

"I was super angry. I was caught in a system that I didn't understand and that didn't understand me," Bragg said. "It was red tape that was keeping him out of my home."

Bragg said he believes the reunification would have taken far longer had he not received guidance from the Parents Representation Program, a service for low-income parents operating out of Washington state's Office of Public Defense.

Bragg received the services not only of an attorney who guided him through the legal terrain, but of social workers and other experts who advised him on which public programs and services he qualified for that would help him establish a firmer case for reunification. More and more states are considering types of this so-called multidisciplinary approach to legal representation, with one study linking such methods to less time in foster care for kids.

Researchers at New York University School of Law and at Action Research recently analyzed the results of thousands of child welfare cases from 2007 to 2014 in New York City in which poor parents were assigned either a single attorney or services similar to what Bragg received in Washington.

Their study found that families were reunited 43% more often during a case's first year when parents received multidisciplinary representation compared with when they were represented by a single assigned attorney, and 25% more often during a case's second year.

The study, published in the July edition of Children and Youth Services Review, noted that the multidisciplinary approach did not appear to reduce the rates by which children either entered foster care or were maltreated again.

But for the instances in which the parents received the multidisciplinary guidance and the children entered foster care, the minors spent an average of 118 fewer days in the care during the following four years, according to the study, which was funded by Casey Family Programs, a Washington-based foundation that provides foster care and related consulting and public policy services nationwide.

"The potential impact on the size of our country's foster care system could be tremendous should the findings hold for other jurisdictions," the study said.

The study's findings come as states are increasingly looking at variations on the multidisciplinary approach when crafting programs to serve low-income families, said Mimi Laver, director of legal representation projects for the American Bar Association. More than 20 states are working on developing pilot programs or expanding existing efforts, she said.

Those potential reconsiderations of how to provide legal assistance to low-income parents facing child welfare cases — 39 states statutorily call for universal legal representation in child welfare matters heard in family courts, according to the study — may be buoyed by a December announcement by the U.S. Department of Health and Human Services that expanded federal reimbursement possibilities.

Federal Title IV-E funds through the Social Security Act are now available to states not only for the legal representation of children, who are typically counseled by attorneys working with state child welfare agencies, but also for their parents, according to HHS' website.

"The opportunity to use federal dollars to invest in this model is very exciting," Laver said.

"There are a number of states that think that the best use of these resources would be to implement the multidisciplinary model."

The multidisciplinary approach can set up a situation where a government is paying for two sets of social workers — a case worker employed through a child welfare agency, and one who is working as part of the parents' legal representation — Laver said.

Some parents simply don't trust the case worker from the child welfare agency, seeing them as part of a government system that is trying to take away their children, Laver said.

Martin Guggenheim, an NYU Law professor who was one of the study's authors, said the child welfare system is designed with a "deep schizophrenia" that tasks case workers with either helping parents gain the return of their children or permanently terminating the parents' rights, with each outcome viewed as perfectly acceptable.

"It's an evil system," said Guggenheim, who also sits on the board of directors for the Center for Family Representation, which provides multidisciplinary legal services for low-income families in Manhattan and Queens. "It's built on a fundamental flaw that is disgusting."

While the study did not find evidence that the multidisciplinary approach reduces reports of new substantiated maltreatment incidents, it is also important that the figures did not demonstrate evidence of the opposite, said Michele Cortese, the Center for Family Representation's executive director.

"Some critics were potentially saying, 'Are those kids as safe? If kids come home fast, is there a chance they're coming home too fast?'" Cortese said. "This study ... indicated that our clients' children come home faster than when parents are represented by a solo practitioner, and there's no increased repeat maltreatment.

"There's nothing that indicates they're not as safe," Cortese said.

While the study suggested New York City could save millions of dollars annually if it fully implemented the multidisciplinary approach, Washington actually quantified annual savings of at least $30 million through its program, said Joanne Moore, director of the state's Office of Public Defense.

Washington's program started nearly 20 years ago as a pilot, slowly expanding until it reached all of the state's counties in 2018, Moore said. At each step along the way, Moore said the office was able to demonstrate to legislators that Washington would actually save money by investing more in the program, as out-of-home care, foster care and other costs went down.

"As other states become more aware of that, they're going to be figuring that this is better for their budgets, and of course so much better for the families, allowing them to succeed," Moore said.

Bragg, who regained full custody of his son in October 2013 and began to work for the Parents Representation Program several months afterward, has been able to use his experience to help other parents. As a social service specialist with the program, he said his clients seem to develop a bond with him more quickly and become open to his suggestions after he tells them he was once sitting in their chair.

"It's super beneficial to families that I'm working with for me to say, 'I understand where you've been, and I can show you the way out,'" Bragg said.

--Editing by Aaron Pelc.

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