July/August 2019Vol. 20, No. 6New Study Shows Providing Parents With Multidisciplinary Legal Representation in Child Welfare Cases
Written by Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law and co-director, Family Defense Clinic, New York University School of Law
The child welfare canon holds that children should only be placed in foster care when necessary. This reflects the universally recognized understanding that the needless separation of children from their families can profoundly harm them. Among the more contentious aspects of the child welfare system in the United States is whether, as some claim, too many children are needlessly placed in foster care or remain there longer than needed to protect them from harm.
A major study (Gerber, Pang, Ross, Guggenheim, Pecora, & Miller, 2019) makes a compelling contribution to this inquiry. Although it did not address whether children are needlessly removed from their homes, it showed that children can be safely returned to their families significantly sooner than commonly happens by the simple device of employing the right kind of legal representation for their parents.
Efforts to prevent the unnecessary separation of families are notoriously difficult to study because so many factors complicate the risk analysis. Researchers from New York University, Action Research, and Casey Family Programs took advantage of a unique opportunity to compare the outcomes of cases involving more than 18,000 children in which child abuse or neglect was alleged. The study examined what happened when, in 2007, New York City began contracting with holistic family defense offices to provide parents with representation in child welfare cases.
Until that time, New York City, like most jurisdictions in the United States, exclusively appointed solo-practicing lawyers to represent parents from a rotating panel of lawyers. Panel lawyers in New York are highly experienced practitioners who must apply to be accepted to the panel and are reviewed annually to ensure they take their job seriously and perform it well. Since 2004, these lawyers receive $75 per hour for both in- and out-of-court work. In most cases, there is no cap on the total amount of compensation they can receive once the court is satisfied that the hours they billed were necessary to represent the parent effectively.
The study focused on the outcomes of cases based on which kind of lawyer parents received by comparing the most popular form of representation used in the United States—solo-practicing panel lawyers—with a reimagined legal representation team that includes lawyers, social workers, and parent advocates. The idea behind multidisciplinary parent representation is that the solo practitioner model is poorly suited to the unique tasks of representing parents in child welfare cases. Because child welfare cases proceed simultaneously along two tracks—the courthouse and the agency—truly excellent parent representation requires that parent lawyers or other members of the parent representation team actively participate with their clients in all aspects of the case. When parents attend team meetings and conference with caseworkers and other agency personnel, parents deserve to be represented on those occasions.
That, in any event, was the basis upon which New York City gave contracts beginning in 2007 to three parent representation offices. These offices—Brooklyn Defenders, Bronx Defenders, and the Center for Family Representation—began by representing about half of all cases filed in the New York City Family Courts. Today, a fourth office, the Neighborhood Defender Service of Harlem, also has a contract to represent parents. Together, these four offices currently represent the vast majority of all parents in child welfare cases in New York City.
What all New York City family defense offices have in common, besides employing staff attorneys whose salaries are not based on the number of cases they carry, is that the offices employ social workers and parent advocates who partner on teams with the lawyers to offer their clients a broad range of support well beyond the courthouse. The lawyer member of the team provides legal representation in court. The social worker helps the client access stabilizing services, such as housing, employment training, drug treatment, and domestic violence counseling. Parent advocates—trained professionals who have personally experienced the child welfare system and can empathize with vulnerable families—provide emotional support and help parents engage in services.
The study's principal purpose was to determine whether the kind of representation provided to a parent makes a difference in terms of keeping families safely together and reducing the time children spend in foster care. The researchers took 3 years and developed a rigorous statistical design that effectively compared outcomes and screened out potential distortions. This meant carefully matching cases based on more than 20 variables, including age, race, number of children involved, county, judge, severity of allegations, and prior involvement with the child welfare system. It also meant that the researchers were able to say that differences in outcomes between the two kinds of representation were attributable to the representation the parents received.
The results are staggering. The family defense offices were able to secure the safe return of children to their families approximately 43-percent more often in the first year and 25-percent more often in the second year than the solo lawyers. The effects were felt from the very beginning of a child's placement. The researchers found that 17-percent more children would be reunified within a month and 27-percent more children would be reunified with their families within 6 months if their parents had multidisciplinary representation rather than assigned panel attorneys.
Providing parents with family defense teams allowed children to be permanently released to relatives more than twice as often in the first year of a case and 67-percent more often in the second year. Of those children who could not be returned to their families, 40-percent more children ended up with permanent dispositions of guardianship when their parents had multidisciplinary representation compared with children whose parents were represented by panel lawyers.
This study makes clear that many children are kept in foster care simply because their parents were not provided with the right kind of representation and key support services. The study's ultimate finding is that even while the family defense offices helped parents regain the custody of their children months or years sooner, children were at no greater risk of any type of abuse or neglect than their counterparts whose parents were represented by solo attorneys. This means that providing the parents an interdisciplinary legal team dramatically reduces the trauma of family separation without any increased risk to child safety.
New York City is a national leader in employing interdisciplinary family defense as the preferred method of providing legal representation for parents. It has helped reduce trauma experienced by families and children. It has also saved an enormous amount of money that would otherwise have been spent on children remaining in foster care. The study found that full implementation of a multidisciplinary representation model would reduce the foster care population by 12 percent and annually reduce foster care costs by $40 million as compared with exclusive reliance on solo practitioners.
The finding that family defense offices achieved a significant reduction in foster care is all the more striking because New York City places children in foster care at one of the lowest rates in the country. In much of the rest of the country, foster care is significantly overused.
The study was announced at a particularly auspicious time because the federal government recently issued new guidance that will allow reimbursement to states and localities for half the cost of lawyers for children and parents in eligible cases. We now have clear evidence of how to prevent unnecessary family separation in child welfare. Based upon the 12-percent reduction in out-of-home care shown in the study, providing parents with this new kind of legal representation throughout the country suggests we can safely reduce the national foster care population of 440,000 by more than 50,000 children.
"Effects of an Interdisciplinary Approach to Parental Representation in Child Welfare," by Lucas A. Gerber, Yuk C.Pang, Timothy Ross, Martin Guggenheim, Peter J. Pecora, and Joel Miller (Children and Youth Services Review, 102), is available at https://www.sciencedirect.com/science/article/pii/S019074091930088X.