A new report contends that two-thirds of kids in California foster care’s system have never met with their legal counsel outside of court, but critics call the data and conclusions flawed.
Court-appointed attorneys for foster children represent the voice of abused and neglected children in dependency court. They inform judges about where their vulnerable clients should live and go to school, make sure they stay connected with relatives and ensure they receive the counseling and other support they may need for life in government care.
But a survey released this week of 879 caregivers and 190 current and former foster youth reveals frustration with children’s lawyers, concluding that “most children in foster care in California have likely never met with the lawyer appointed to advocate for their protection, safety, and physical and emotional well-being.” The result, according to the legal advocacy groups Advokids and the Western Center on Law & Poverty, represent “real dangers to children in care who do not receive the quality of legal advocacy promised under California law.”
In findings that quickly became controversial, the groups reported Tuesday that lawyers who fail to meet with their clients are in violation of national standards, state law and local rules that require in-person contact.
“Many of these attorneys fail to meet the minimum standards of competent representation,” they state, “including providing their contact information, and meeting with their child clients.” Described as the first of its kind, the survey highlights “the extent of the incompetent and ineffective representation of children in foster care by the very attorneys appointed to represent them in the neglect and abuse court hearings that determine so much about their lives.”
The survey response of a caregiver from Northern California identified as Teresa summed up the concerns. “In foster care, an attorney is a mystical creature, we’ve been told they exist,” she stated. “Unless we go on a scavenger hunt while navigating a dysregulated child in the trenches, they continue to escape us. Baffled an attorney can take funds without ever knowing their clients.”
The current and former foster youth surveyed ranged in age from 18 to 37, some recalling experiences in the system from decades ago.
Roberto was among the anonymized respondents. He stated that when he did meet with his lawyer, his voice in court-appointed counsel “didn’t really listen to anything that I asked, they spent five minutes with me to tell me what they think should happen. It’s like they didn’t care.”
Findings disputed
With assistance from the global law firm Akin Gump, authors of the report titled “Out of Sight, Out of Mind: When Children in Foster Care in California Don’t Meet Their Court Appointed Attorneys” are working with a state lawmaker on corrective fixes. They also make a series of recommendations, including greater state oversight of dependency court attorneys.
But their findings, and the basis for them, were quickly disputed by prominent children’s attorneys. In a four-page letter posted to the website of the Children’s Law Center of California, lawyers representing a large share of foster children in the state said the survey data is “grossly inaccurate” and does not support the report’s final conclusions. Representatives of six law firms working in 11 counties signed the statement, describing the report as relying on “seriously flawed research and erroneous data.” As a result, it states, “the conclusions drawn are irresponsible, misleading, and potentially damaging to the overall goals of high-quality representation, accountability, and adequate funding.”
The group of attorneys pointed to their own internal data on client contact to back up their position. Sixty percent of the children under court supervision in the state live in counties where the six firms work. And in those counties, their representatives say, attorneys or their “agents” see clients in person the vast majority of the time. The agents tend to be social workers employed by the law firms, who work on cases of younger children requiring home visits.
“It’s a biased sample, and it’s really quite irresponsible to disparage an entire profession based on this survey.”
— Children’s Law Center Executive Director Leslie Heimov
The Children’s Law Center, which represents roughly 16,000 foster children in Los Angeles, Sacramento and Placer counties, reports that its attorneys regularly visit in person with more than 99% of their clients. In Stanislaus County, 84% of children represented by Dependency Legal Services meet with their court-appointed lawyers, according to the firm’s data. The law firms said in cases where children haven’t met with an attorney or office representative, they have either just entered foster care, or have reached adulthood and declined in-person meetings.
Children’s Law Center Executive Director Leslie Heimov said while it’s clear that more funding and oversight of dependency court representation is urgently needed, the survey of just over 1,000 respondents is not a precise enough sample to draw the sweeping conclusion that most of the state’s children do not meet with their attorneys.
Heimov noted that the survey includes adults as old as 37, who may have been in foster care when legal representation was less robust. Foster youth may also be speaking privately to their attorneys and not informing their caregivers, she said, which falls under their rights as confidential clients. Heimov also described the survey of caregivers as skewed because it included those who called the Advokids hotline, which provides free legal information “to anyone concerned about a child in foster care in California.”
“Caregivers who are happy and content don’t respond to surveys and don’t reach out to Advokids,” Heimov said. “It’s a biased sample, and it’s really quite irresponsible to disparage an entire profession based on this survey.”
Today, days after the report’s release, Advokids released a statement defending its findings and describing the authors as “surprised and saddened” to read the letter signed by lawyers from some of the state’s largest dependency court firms.
Advokids Deputy Director Jan Sherwood, a longtime legal expert respected in the child welfare field, noted limitations about data collection in an interview. But she said while the survey’s respondents were not randomly selected — as they would be in a more formal study — their observations are nonetheless important and worth paying attention to.
Sherwood also said without adequate data on how often lawyers meet with their clients in all counties, it’s impossible to know how well the dependency court system is working statewide. She added that her survey’s initial data suggests problems in parts of the state where representation is less robust than in Los Angeles County — a region where in-person meetings are routine.
“Just because it’s happening in L.A. doesn’t mean it’s true everywhere,” Sherwood said. “There’s still a lot we don’t know about legal representation in all parts of the state.”
Jill Duerr Berrick, a longtime UC Berkeley professor of social work, reviewed methods and findings for the Advodkids report last fall. In an interview this week, Distinguished Professor Berrick said she had raised concerns about the sample size, sample distribution, selection criteria and survey instrument, among other issues. The report’s authors added appendix items to address those issues.
“The appendix clearly states, among other things, that ‘caution should be exercised in interpreting and generalizing this evidence,’” Duerr Berrick said. “That may be the most important line in the document.”
‘Completely unreachable’
The Advokids report cites Butte, Fresno, Kern, Riverside and Stanislaus counties as the “worst offending.” Eighty percent of survey respondents from those counties, which have a combined foster care population of more than 8,000, said the child had no contact with an attorney or their representative.
Firms that represent children and representatives of the Superior Courts in Riverside, Kern and Fresno counties, as well as court officials in Butte County, did not respond to requests for comment on the report sent by The Imprint.
“Just because it’s happening in L.A. doesn’t mean it’s true everywhere. There’s still a lot we don’t know about legal representation in all parts of the state.”
— Advokids Deputy Director Jan Sherwood
Statewide, survey responses from adults who’d spent time in the system as well as foster parents, relatives and extended kin caring for foster youth indicated that 65% had not spoken to their attorney before court hearings. Forty-five percent stated that a lawyer never provided a name and contact information.
“The child’s attorney has been completely unreachable the entire case,” a central California survey respondent identified as Shyla stated. “Impossible to contact. Only contacted the night before one court hearing but still the child’s wishes were not taken into consideration.”
Davina, a caregiver surveyed from Southern California, described a different attorney appearing for the child at every court hearing. “Whoever shows up that day, and whoever pulls the name from the pot and wishes on a damn star is who goes to court,” she stated.
“Open-ended” sections of the survey and subsequent interviews “revealed that attorneys rarely observed younger children in their placements or conducted an independent investigation by contacting the child’s doctors, therapist, and other treatment providers, leaving such attorneys unaware of the needs or desires of children who were assigned to them.”
But there was also positive feedback among the survey respondents. “Effective attorneys were described as communicating often; making themselves available to proactively resolve issues such as protective orders, visitation concerns, and educational issues; and frequently explaining court processes,” the report states.
In an interview, Advokids’ Sherwood described how critical it is that children in foster care receive competent legal representation. Attorneys can hold the foster care system accountable in court on significant issues in children’s lives, including special education, mental health care and visits with siblings.
Fixed payments for individual cases contribute to what Sherwood describes as ineffective assistance of counsel, offering little incentive for attorney visits outside of court and other time-consuming parts of the job. Too often, Sherwood said, that results in lawyers who bring few independent positions to judges and simply agree with whatever social workers and child welfare agencies recommend, regardless of whether the plans are in children’s best interest.
“Someone who has never met their client doesn’t have all the facts,” Sherwood said. She called it “potted plant representation.”
“They don’t know whether the placement is good or bad or whether that kid is actually getting the therapy they need.”
‘Bringing accountability’
Advokids has several recommendations for improving practice.
They include creating a California Office of Dependency Counsel that would ensure all attorneys appointed to represent foster children are properly trained and receive uniform pay. They also need lower caseloads and regular performance reviews, with corrective action if needed, the report states. Other recommendations include amending state law to clarify that court-appointed attorneys are required to meet with the children they represent regardless of their age, and to hold the juvenile court responsible for responding to complaints about lawyers.
Pending legislation supported by Advokids, the Western Center on Law & Poverty and a number of child welfare advocacy groups approaches some of those aims.
Authored by Los Angeles Assemblymember Isaac Bryan, Assembly Bill 3049 would require dependency court judges to delay hearings if foster youth have not had the opportunity to consult with their attorneys. AB 3049 passed the Assembly Judiciary Committee this week and is headed to the chamber’s Human Services Committee.
In an email sent to The Imprint, Bryan cited the new report’s findings that dependency court attorneys in some counties fail to meet with their clients as the impetus for his legislation.
“This bill will bring accountability to the dependency court system and ensure that when decisions are made about a child in the foster care system, that decision is informed by the child’s own opinions and lived experiences,” Bryan said.
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