New York To Tap Federal Funds For Parents and Kids Legal Costs in Child Welfare Cases

by Michael Fitzgerald

Aiming to “enhance the quality of legal representation for children and parents in child welfare proceedings,” New York state officials have released a plan to draw on newly available federal funds for attorneys handling abuse and neglect cases.

The stakes are high for low-income parents being investigated or accused of child maltreatment — and for children who may be separated from their families. And a quality lawyer is increasingly viewed as critical for best outcomes.

Concerned about overwhelmed and underfunded civil legal services nationwide, in 2018, the federal government expanded its policy for allowing states to access an obscure funding stream within the Social Security Act, known as Title IV-E.

Now, according to documents posted with little fanfare Thursday to the Office of Children and Family Services’ website, New York counties, including New York City, tribal governments and the state’s Office of Court Administration can seek these federal funds to pay the costs of legal representation in family court. To receive the funds, the agencies must provide new training on child welfare proceedings and best practices for representing parents and children.

Beyond simply giving court-appointed lawyers raises, or hiring new ones, each jurisdiction will have to first submit “enhanced quality plans.” That could include hiring parent mentors and social workers for legal teams — a model innovated by New York City legal aid firms like Center for Family Representation and Lawyers for Children — or providing parents and kids with access to counsel at the earliest stages of a child welfare investigations, before a petition has been filed in family court.

The plan is being released two years after the chief judge of the state highlighted a “crisis” in legal representation — particularly for parents being accused of child maltreatment, who are disproportionately people of color.

“Our parental legal representation system is overwhelmed and underfunded, often resulting in inadequate legal services with harmful consequences for children and families and, ultimately, the communities we all live in and call home,” said New York Chief Judge Janet DiFiore, summarizing a 2019 report from the Commission on Parental Legal Representation she convened.

DiFiore’s commission praised New York City for its heavier reliance on multidisciplinary legal teams, compared to the rest of the state. Along with compensation that hasn’t increased since 2004 for some attorneys, and too-high caseloads, the commission also expressed concern that in more than 2,500 cases between 2015 and 2018 a child was removed from a parent during an initial court hearing, even though the parent had no lawyer present at all.

A right to counsel for parents in such cases has been embedded in state law and high-court decisions since the 1970s.

The state’s Office of Indigent Legal Services will be responsible for approving each counties’ plans to enhance the quality of parents’ representation. The state’s court system will be responsible for coming up with its own similar plan for the children’s representation program it manages.

In an interview, David Kelly, a former federal child welfare official who grew up in New York and went to law school in Buffalo, praised his state for finishing its plan for improved representation, calling it a “great first step.” Kelly said he was especially encouraged by support for multidisciplinary legal teams, and legal representation for families early in child welfare cases.

Kelly said he hoped the state would enhance and expand its current level of court-appointed representation for low-income clients, rather than simply using the newly available federal funds to supplant existing spending.

A spokesperson for the state’s Office of Children and Family Services, John Craig has previously told The Imprint that the federal funding “would not supplant any current spending,” adding, “counties will now have funding available to invest into improving quality.”

The state’s Office of Court Administration, which is responsible for the court-appointed children’s attorneys, agreed. Spokesperson Lucian Chalfen said local governments can use the funds to enhance training, add staff to legal teams who come from different disciplines such as social workers, hire attorneys to lower caseloads — “or whatever is determined to be needed in the various localities.”

A New York legal advocate who fought for the federal funding policy change in Washington, D.C. praised the Empire State for finishing its plan, and said the system badly needs new funds to be distributed as quickly as possible. But she is concerned the state is already behind.

“We all know COVID-19 has been brutal to families who are poor — and Black, brown and indigenous families in particular, when they are subject to child welfare system interventions,” said Susan Jacobs, a founder of New York City’s Center for Family Representation. “There are many other states that are further along and have already been able to grant and distribute these funds to legal programs. It looks to me like New York will still take some time before the money actually hits the ground.”