State Child Welfare Policy Guide: Part of the Policy Matters Series

14.1 Appointment and Involvement of Legal Representation for Parents and Children

In spite of the trauma to child development that results from separation from parents and the enormous implications for a child’s future, only 36 states and the District of Columbia require that a lawyer be appointed to a child in dependency and foster care proceedings [i] , more than forty years after the Supreme Court established a child’s right to counsel in delinquency cases [ii] . While there is a federal right in delinquency court, there is no corresponding right in dependency court.  As a result, the system of representation of children and parents in dependency cases is fragmented and uneven. Legal representation is the only avenue to ensure client involvement in dependency matters which go to the core of families.  The best example of mandated representation is Mississippi which requires that all parties are represented by counsel at all stages of dependency proceedings. [iii] This ensures that all parents and children are provided an opportunity to engage in the proceedings and be heard in matters fundamental to families. Ideally the mandate for continuous representation would be coupled with a strong legal services program such as the Brooklyn-based Center for Family Representation. The Center has created the Community Advocacy Team which consists of an attorney and a social worker that begin work with the client before a court petition is filed and continuously throughout the life of the case. ^[iv]   The attorney/social worker team provides an interdisciplinary approach that can result in better service plans and case outcomes.

States can require that representation for parents and children is appointed and actively involved prior to the first court hearing and continuously throughout the proceedings, including appeals through automatic appointments prior to the first hearing, and ongoing throughout case including appeal.