April 2020Vol. 21, No. 3How Can Civil Legal Aid Help Keep Families Together and Kids Out of Foster Care?

By Karlee M. Naylon, research associate, and Karen A. Lash, practitioner in residence, American University, Department of Justice, Law, and Criminology, The Justice in Government Project

To answer the question posed in the title, there are many ways civil legal aid can keep families together. Legal interventions can offer often untapped tools to address abuse and neglect and reduce its prevalence in families at risk of child welfare involvement.

See the law in the problem. The most common problems families face—such as eviction, domestic violence, barriers to employment, family law problems, and lack of access to or erroneous denials of public benefits or health care—often have legal solutions. But studies show that most people see these problems as personal problems or bad luck. They don't recognize the good that a lawyer's intervention could do. 

A parent's inability to resolve complex legal issues associated with poverty too often presents as "failure to act" in the neglect context. When children are removed from their homes, studies show that legal representation can improve the rate of family reunification, double the speed to a child's adoption or legal guardianship, and result in better outcomes for children and families as well as substantial savings for government coffers. Studies also demonstrate how civil legal aid can prevent removal by proactively addressing families' underlying legal problems before they cascade into crises.

Use legal help to prevent neglect. The Family First Prevention Services Act of 2018 aims to resolve issues that destabilize families in order to prevent children in those families from entering or remaining in foster care. In December 2018, the Children's Bureau clarified its support for state and local child welfare agencies opting to incorporate legal services alongside other supportive services. The new Question and Answer 30 found in the Child Welfare Policy Manual allows title IV-E state agencies to seek partial reimbursement for legal representation "for a child who is a candidate for title IV-E foster care or in foster care and his/her parent to prepare for and participate in all stages of foster care legal proceedings, such as court hearings related to a child's removal from the home." This revision can help ensure that reasonable efforts are made to prevent removal.

What the researchers say. According to the Adoption and Foster Care Analysis and Reporting System report for fiscal year 2018, neglect (62 percent) was the top circumstance associated with children's removal from the home. Neglect generally refers to the inability of a parent or caregiver to meet a child's basic needs, putting them at risk of harm. The following are examples of studies and data showing how legal aid can help prevent or redress some legal problems that may otherwise lead to removal:

• Many states have published reports documenting legal aid organizations' effectiveness in helping people access benefits by helping families apply for or appeal erroneous denials of services and benefits, such as the Children's Health Insurance Program, home energy assistance, Medicaid, Supplemental Nutrition Assistance Program, Social Security Disability Insurance, Supplemental Security Income, and Temporary Assistance for Needy Families (TANF).
• Studies show the effectiveness of civil legal interventions to stabilize a family experiencing domestic violence, such as helping survivors file a protection order, secure child custody, finalize a divorce, and obtain employment and housing.
• Effective reasonable efforts related to housing may include offering legal representation to parents at risk of eviction or foreclosure or pushing landlords to redress unlawful unsanitary conditions to improve a child's related health problems.
• Research shows that legal help to open pathways to mental or behavioral health services can prevent removals due to behavioral problems and caretakers' inability to cope.
• Studies show that lawyers can help parents with alcohol or substance use disorders access treatment through medical-legal partnerships or by challenging improper Medicaid denials.
• Researchers found that providing legal aid to help people expunge or seal their criminal records increased employment rates and wages and reduced recidivism. It can also improve job prospects by helping to reinstate a suspended driver's license or prevent the need for wage garnishment by modifying a child support order to reflect an individual's actual ability to pay.

Federal funds are available. Title IV-E funds can become a lifeline to legal representation that can help prevent removal, shorten a child's stay in foster or kinship care, and stabilize low-income families. Other federal funding options can also tackle legal needs related to health, education, employment, housing, and domestic violence that can trigger child welfare involvement.

States receive a significant influx of federal grants from the U.S. Department of Health and Human Services (HHS), the Department of Housing and Urban Development, the Department of Justice (DOJ), and the Department of Labor to implement particular policies and programs that allow states to fund civil legal aid. These state-administered "pass-through" funds are curated and collected in The Justice in Government Project's Grants Matrix.

Funding that intersects with the needs of families involved with or at risk of entering the child welfare system include the following:

• HHS says state and local TANF administrators can use funds for legal aid for low-income families in ways that further TANF's goals.
• HHS's State Opioid Response grants, Substance Abuse Prevention and Treatment Block Grant program, and Community Mental Health Services Block Grant program have all been used to support legal aid that facilitates prevention and treatment services, as well as to support children who have a parent with a substance use disorder.
• The rule for DOJ's Victims of Crime Act Victim Assistance Formula Grant Program clarifies that state administrators can use funds for legal assistance for victims of child abuse and neglect and their kinship caregivers, as well as for elder abuse, domestic violence, and other crimes that may precipitate removal.

Bottom line: You can do this. Passage of the Family First Prevention Services Act and the Children's Bureau's landmark allowance for legal representation reimbursement signal transformational change for parents, children, and the child welfare professionals who serve them. They bring child welfare financing into alignment with research-informed practices to keep children in their homes whenever safe and possible. If a child must be removed from their home, these policies keep reunification and permanency within reach by supporting legal representation. We must now ensure that all states rise to the Children's Bureau's challenge and take full advantage of title IV-E legal representation reimbursement and other federal funding opportunities so that every family in need of high-quality legal representation can get it.

This article was adapted from "Using Legal Aid to Keep Families Together and Prevent Child Welfare Involvement," published in the spring 2020 edition of The Guardian, the National Association of Counsel for Children's quarterly law journal.