By Paul Kiefer
Last month, a new state law took effect that will guarantee legal representation for children facing dependency hearings, in which a judge considers whether they should remain with their family or go to foster care. For more than a decade, Washington lagged behind much of the rest of the country in expanding children’s access to attorneys during foster care cases, so when the legislature passed the law in April, most children’s rights advocates across Washington lauded the change as a step in the right direction.
Access to an attorney can make a significant difference in the outcome of foster care cases. A study conducted between 2017 and 2019 by Washington’s Office of Civil Legal Aid (OCLA), which provides financial support to low-income Washington residents in civil cases, found that children represented by attorneys in dependency cases are much more likely to reunite with their families. The study found that having a lawyer made an especially notable difference for older children and kids of color, who are also the least likely to be adopted if left in foster care.
The new law lays out a plan to introduce new children’s representation programs—a county-by-county network of independent contractors who OCLA will assign to cases—over the next six years. The state’s new program will build on an existing service of OCLA, which has provided attorneys to children in a narrow set of circumstances since 2014. First, though, a work group established by the legislature will spend a year revamping the state’s guidelines for attorneys who represent children—guidelines many advocates call outdated.
For example, lawyers who represent children in dependency cases are allowed to have as many as 60 clients at a time, a caseload that could leave children with a less-prepared attorney when a court decides whether they go to foster care. Erin Shea McCann, deputy director of the Legal Council for Youth and Children, argues that with a “cap that high, we run the risk that attorneys won’t be able to meaningfully engage with any of their clients. That could mean that attorneys go into court without having a really good sense of what their client wants. We need to set an expectation that attorneys take on a number of clients that gives them time to be attentive and careful with each case.”
“Given what we know about the science of leading questions, and children’s innate tendency to offer answers they perceive will please adults, it is especially hard to have frank and meaningful conversations with child clients.”—Tara Urs, King County Department of Public Defense.
Lisa Kelly, a law professor at the University of Washington who directs the school’s Children and Youth Advocacy Clinic, also suggested the work group could consider how OCLA solicits information and feedback from young clients about their attorneys. “We haven’t figured out how to ask clients to review their attorney’s performance, but honest input from the children themselves will be really key in making sure this program is serving its clients as it should,” she said. “One of the key problems up for consideration is figuring out how to be attentive to the needs of a client who is nonverbal or still learning to speak.”
Another major challenge will be ensuring that attorneys working for the state’s new children’s representation programs know how to speak for—and with—child clients, especially younger ones. “Arguably, attorneys for children require even more training and supervision than attorneys for parents because communicating with children is a uniquely fraught prospect,” said Tara Urs, the special counsel for civil policy and practice with the King County Department of Public Defense.
“Given what we know about the science of leading questions, and children’s innate tendency to offer answers they perceive will please adults, it is especially hard to have frank and meaningful conversations with child clients.” Without a clear understanding of what a child client wants, an attorney could risk unintentionally pushing a child to leave their family or remain in an unsafe home.
The legislature chose to rely on independent attorneys to provide representation for children. Urs disagrees with this decision, arguing that public defenders would be better equipped to represent new child clients because of the hands-on support their offices provide each attorney, particularly less-experienced attorneys. “Our supervisors walk side by side with our attorneys, co-trying their cases, staffing complex legal issues, providing coverage when necessary, helping to transfer cases when attorneys leave,” she said.
McCann believes that the workgroup and the OCLA will have to consider the challenges that counties may face in building out a program that has traditionally relied upon public defense agencies, including how children’s attorneys will be folded into existing work and how to address conflicts of interest. However, she isn’t opposed to public defenders representing children; in fact, McCann shares Urs’ concerns about the lack of oversight for independent attorneys.
The work group won’t complete its revisions until next March, four months before OCLA’s program begins its staggered launch. Jill Malat, who leads the Children’s Legal Representation Program for OCLA, says that demand for attorneys could spike just as the program gets off the ground. “We’ve seen fewer dependency cases in the past year,” she said, in part because of the COVID-19 pandemic. “Because children haven’t been in school and caseworkers haven’t been visiting homes,” she said, “abuse and neglect aren’t getting reported as often.”
While the eventual return of in-person schooling might bring a surge of dependency cases, Malat said that she’s hopeful that OCLA’s ability to provide attorneys to more children will work in tandem with other state efforts to expand addiction treatment and mental health care options for parents. “The more we can help families repair themselves, the fewer kids we’ll need to represent.”[This story was updated on September 2 to more accurately reflect the McCann’s perspective on the potential role of public defenders in the child representation program.]