How Holistic Legal Representation Supports Reunification

Marty Guggenheim, professor of clinical law at NYU Law School, co-director of NYU Law School’s Family Defense Clinic  

As part of our Fighting for Our Rights series and in recognition of National Reunification Month, Rise is exploring how parent legal representation can support reunification.

Here, Rise talks with Marty Guggenheim, professor of clinical law at NYU Law School, co-director of NYU Law School’s Family Defense Clinic and co-author of the study “Effects of an interdisciplinary approach to parental representation in child welfare.”  His research proves that interdisciplinary legal representation—an approach where a legal team includes a lawyer, parent advocate and social worker—helps families safely reunify more quickly. His research also shows that many children do not need to be in foster care at all.

Q: What was your research study about?

A: The study compared outcomes of two different kinds of legal representation that NYC provides to parents who are eligible for court-assigned representation. The purpose of the study was to test the hypothesis that interdisciplinary legal representation was a better kind of representation for parents than what New York City was offering until 2007.

There was a time before parents were entitled to a lawyer in child welfare proceedings. Then, once parents became entitled to a lawyer, starting in 1972, New York City provided parents with a solo practitioner who was on an “assigned panel,” known as a “panel lawyer” or “18B.”

Some of us advocated for many years to offer parents a different kind of legal representation, known as interdisciplinary or holistic legal representation. We believed that solo practitioner lawyers were a poor method of providing legal representation for parents in child welfare proceedings. Panel lawyers were known as being courthouse lawyers. When they did their job well, they showed up on time with their client in court, but they were saddled with so many cases that it didn’t allow them any meaningful opportunity to do work outside of court. Panel lawyers never had the time or, in too many cases, the interest in getting to know their clients as full human beings—as people who are more than the particular act that caused the case to be filed. The approach was based on the false idea that the courtroom is the most important site for advancing the parents’ cause either to keep children at home or secure their return as soon as possible.

We believed that the most important work in parent legal representation takes place outside of court at agency meetings, family team conferences and the myriad other meetings parents are forced to attend to stay in the good graces of the agency. With panel lawyer representation, parents had to attend those meetings alone. In no other field of practice would a lawyer permit their client to go to a government agency unrepresented to participate in a meeting that could have fateful consequences for the client.

We believed that what parents need to survive and thrive through a proceeding that is among the worst nightmares of their life is to be in regular close contact with people who care deeply about them and their situation. We envisioned that parents would be represented by a team of people—lawyers, social workers, parent advocates. The idea was that each parent would be assigned a team of people working closely with them throughout the case, answering their calls, proactively calling them, reminding them of scheduled visits or requirements imposed on them, giving them an opportunity to vent or curse at us instead of a caseworker, and to make them feel less alone.

In 2007, New York City finally agreed on an experimental basis to offer this second kind of representation. The city began offering every other parent a panel lawyer or a lawyer team from one of the three offices that were given contracts for the first time ever to do this work: The Bronx Defenders, Brooklyn Defender Services and the Center for Family Representation. At the time, Queens only had panel lawyers, but today is served by the Center for Family Representation. Staten Island only had panel lawyers which remains true to this day. Now, Harlem also is served by Neighborhood Defender Services.

Q: You worked with a team of researchers to find out how interdisciplinary representation impacted families. When parents were given interdisciplinary legal representation, did children in foster care return to their families faster?

A:
The results were staggering. I always knew that panel representation was inferior and inadequate but there is a giant difference between knowing something and proving it.

With interdisciplinary representation, family defense offices were able to secure a safe return of children to their families approximately 43% more often in the first year and 25% more often in second year.

These effects were felt from the very beginning of the placement. With interdisciplinary representation, 17% more children were reunified within a month than if they had panel lawyers and 27% more children were reunified within 6 months.

I can’t overstate the significance of these findings. Not only did it prove there is a better way to represent families, it proved that a staggering number of children are needlessly in foster care. Children were needlessly in foster care in New York City for many years because the city wasn’t giving parents the right kind of legal representation. That continues for some parents to this day.

For those of us who want to shrink the foster care population and prevent needless separation of children from their parents—which I  hope is everybody who knows anything about children, families, or justice—this means we should create this kind of legal representation everywhere in the country.

Q: Did the study find that it was safe for children to go home more quickly?

A: The answer was a resounding yes. There was absolutely no difference whatsoever in harm or risk of re-entry to foster care when children were sent home to their parents a year earlier because parents had multidisciplinary representation than when they were reunified a year later because parents had a panel attorney. That means that the children never needed to be in care that long, and probably never needed to be in care in the first place.

Q: What did you learn about the cost or savings involved in offering interdisciplinary legal representation?

A: This was the final major finding of the study.Child welfare is a business that involves paying agencies to take care of other people’s children. We started counting the cost of foster care by using the daily rate that New York City pays for foster care. That daily rate isn’t the rate a foster parent gets, but the rate the agency gets for each day children are in care. We learned that if New York City gave all parents interdisciplinary legal representation, it would save $40 million a year in foster care costs.

We were not just wasting money, we were wasting lives, mostly lives of poor families of color, for no better reason than we had an inadequate imagination for what kind of lawyer they should have had.

Q: Why is this research important?

A: It is an astonishing study. We found that 12% of children in foster care in this study would be home if they had the right kind of legal representation. If we apply that throughout the United States today, where the majority of parents receive solo practitioners, there are probably over 50,000 children in foster care for no other reason than that their parent was not given the right kind of representation.

Everybody wants to talk about science and see an approach that is “evidence based.” We now have a peer-reviewed study published in the leading journal in the world of its kind that is evidence-based proof that interdisciplinary legal representation is a reunification service that should be employed everywhere.

Our legal system says that no child should ever be separated from her family unless absolutely necessary. This study proves that we are recklessly, needlessly, unacceptably separating children from their parents all too often. This study should lead to the conclusion that all families should be given this kind of legal representation.

Q: Across the country, do parents have a right to legal representation?

A: In almost every state but one or two, parents have a technical legal right to representation. But that is misleading. In the vast majority of the country, parents are unable to get the kind of representation they need. In many parts of the country, the judge appoints a lawyer too late in the case or appoints a panel lawyer.

It would be hard to overstate the radical difference of perspective between the courtroom lawyer and the multidisciplinary practice arrangement. The panel lawyer regards the courtroom and courthouse as the most important site for their work, and might be paid $300 for the entire proceeding, which creates a disincentive for the lawyer to do any work whatsoever.

The interdisciplinary team regards the parent herself—her needs, her emotional condition, and the interactions she must regularly have with agencies out of court—as the most important focus of the work.

So, on the one hand, the panel lawyer thinks about child welfare as being about courtroom advocacy. On the other hand, the interdisciplinary team sees the focus of its work as the client as a full human being, someone who may be forced to engage in services that are stupid, useless, wasteful and setting her up to fail. We fight to prevent those services from being placed into the plan. We also look carefully at the multiple ways in which a parent’s life can be made more complicated after a petition is filed. The parent might be at risk of losing her lease or might get a health condition that requires hospitalization.

What we know is that for parents to survive the child welfare system, they have to thrive during it. What the holistic, multidisciplinary model is all about is doing what is possible to pay attention to the client’s needs, whatever they are, during the case.

Q: What makes the parent advocate and social worker so important?

A: Lawyers aren’t invariably well trained to display the kind of meaningful concern that is so vital to the success of someone who just lost a child and is on a downward cycle—maybe was recently evicted, maybe ended a relationship, may be depressed, or may be using substances to get through a long night. One loses hope. One of the major keys to success in this field is helping people get through that funk.

It is important to work with someone who shows that she cares about you and is available to answer your calls or texts and to know you are not alone. Parent advocates are often individuals who themselves have endured this nightmare and can attest to the fact that the sun can and will come up again and the key is to get through this.

It is also absolutely essential that parents never attend an agency meeting without someone there on their team. Agencies won’t allow lawyers in the room. So among the most important things is that either the social worker or parent advocate attend that meeting. When the agency says, “Why haven’t you been doing X?”, there is someone there to explain. And if the agency says, “You must do Y or you will never get your child back”, there is someone there to say, “That is nonsense. That service isn’t needed. There is no reason to do it.” And to fight back.

Q. Your research focused on New York City. Are other jurisdictions using the interdisciplinary approach?

A. Yes. Washington State is a national leader, and a number of other cities and counties, on a smaller scale, have embraced this. It is a growing movement. We are based at the American Bar Association (ABA). We have a national steering committee that advances this model throughout the country. Wherever research has been done—Philadelphia, New Jersey, Washington State—we have the same findings. It reduces the foster care population safely. It proves that children are needlessly separated from their families too often, and there is a safe simple way to minimize that horrible truth.

Q. Will you continue to do research on this topic?

A. This first study was a quantitative study looking at outcomes of cases, starting with 28,000 cases. We’ve done two other studies on this topic. 

For the second study, we interviewed parents, judges, children’s lawyers, parents’ lawyers, panel lawyers and family defense office lawyers. Many of them worked in the court system before the new offices came into being and during the time when there were both kinds of representation. It was a joy to read the interview results. Everybody said these new offices raised the level of practice, served families better than they had ever been served before, and pushed the agency, not just to make a claim that there was a need for a child to be in care, but to prove the claim (which very often couldn’t be proved). That is about to be published.

In a third study, we looked at a series of cases and described in detail how offices achieved the objective of preventing placement or returning children safely to their family. The three studies are all part of one package. We are well on the way to completing them.

I don’t think we need more research. What we need now is the will of child welfare officials to start doing this everywhere. If they mean their rhetoric, they have an evidence-based solution staring them in the face.

Q: Is new funding needed to implement this type of program?

A: The federal Children’s Bureau headed by Jerry Milner and David Kelly are huge fans of interdisciplinary legal representation. They were able to ensure that federal funds are available to all states to spend money to add social workers and parent advocates to their legal teams.

One of the amazing things about this study is that it showed that, if you used interdisciplinary lawyers and paid them very handsomely, versus if you used only panel lawyers who were paid nothing, it would still be much cheaper to pay the family defenders. The more you spend on better legal representation, the more you save.

Funding isn’t the problem. The problem is the heart and commitment to do it. Child welfare officials commonly make the assertion that they are opposed to even one child’s needless separation from their family. This is the time for them to step up to the plate and say they are going to do everything possible to use this evidence-based reunification service called interdisciplinary legal representation.