New Standards needed for Parent’s Attorneys
Monday, January 11th, 2016
Parents have a long-recognized constitutional right to raise their children as they see fit, without governmental interference. The U.S. Supreme Court has repeatedly upheld this right, most recently in the 2000 case of Troxel v. Granville (530 US 57). However, if the government determines that a parent has abused or neglected her children, the government can take the children from her and place them in foster care. Under state and federal law, parents whose children cannot safely return home to them within twelve months of entering foster care lose their parental rights permanently.
In recognition of the fundamental right to raise one’s children, the law requires that parents receive notice and a hearing before the state can place their children in foster care. At the initial hearing and throughout the series of hearings that occur while their children are in foster care, parents are entitled to be represented by counsel. If the parents are unable to afford to hire counsel, Virginia law mandates the court to appoint them an attorney.
Although the law provides parents a right to an attorney to help them retain or regain their children from state custody, pay for attorneys appointed for indigent parents is so low the work is considered by many to be pro bono. Unlike attorneys for the state, who are paid a salary, or guardians ad litem for children, who are paid an hourly rate, attorneys appointed to represent parents earn only $120 per appealable order, or no more than $600 for a case that often requires dozens of hours of work and lasts for a year or more.
Furthering the potential difference between the effectiveness of counsel for parents and that of counsel for children and the state is the different levels of training required. The children’s guardians ad litem must undergo specific training before they are qualified to represent a child, and they must attend ongoing training each year to maintain their qualifications. Counsel for local departments of social services (the arms of the state that determine when a child must be removed from his parents for safety reasons) receive special training every year. But there is no specific training required for attorneys to represent parents, even though these attorneys must understand and use the same complicated laws used by the attorneys representing the children and the state. And while attorneys who represent children in some localities must also accept appointments to represent parents in other cases, this is not true statewide.
Increasing pay and requiring annual, minimum training for all attorneys representing parents in foster care cases across Virginia will benefit more than just the parents. Quality representation for parents has been shown to also benefit the children involved. In one study, improved parent representation increased the number of youth who reunified with their birth parents by 11%, increased the rate at which youth were adopted out of foster care by 83%, and decreased the average amount of time children remained in the foster care system. (See: Courtney, Hook and Orne, “Evaluation of the Impact of Enhanced Parent Legal Representation on the Timing and Permanency Outcomes for Children in Foster Care,” Feburary 2011.) Since Virginia has the highest rate in the country of youth “aging out” of foster care without permanent connections, we cannot afford to ignore the need to improve parent representation and the benefits this improved representation can have for Virginia’s youth.