We need high-quality representation for children. Family First Act funds can help.

Tuesday, August 27th, 2019

At a discussion earlier this spring, Virginia youth shared experiences of working with the attorneys who represented their interests while they were in foster care. Some said they never met their attorneys; one said hers didn’t believe her when she told him she and her siblings were being abused in their foster home.

This year’s National Report Card on Legal Representation for Abused and Neglected Children evaluated and graded state laws based on factors like how client-directed representation is and if attorneys represent children at all hearings. The report card gave Virginia’s statutes a “B”—but there’s more to the story.

In Virginia child abuse or neglect cases, the court appoints an attorney, or guardian ad litem (GAL), to represent the child’s best interests and help the court decide if a child stays with their family or enters foster care. GALs present what they believe is in the child’s best interest, but judges must also consider the child’s stated wishes. Usually, GALs convey children’s wishes to the court because the child isn’t present. When GALs don’t meet with children and parents, courts make life-altering decisions with only limited knowledge of what is best for the child.

Although Virginia’s laws may warrant a decent grade, recent surveys shed light on what is – and isn’t – actually happening on the ground. The results should concern us.

A 2015 Virginia State Bar survey of lawyers exposed a harsh reality: many GALs don’t meet with or discuss the wishes of their child clients. Many reported that GALs don’t conduct appropriate investigations or perform their best; some noted that GALs have little oversight, and judges often “rubber stamp” GALs’ conclusions.

In a 2017 survey of Virginia court-appointed special advocates (CASAs), 45 percent reported that GALs seldom or never met face-to-face with the child; 42 percent said GALs seldom or never interviewed the child. Only 21 percent reported that GALs always or often met with the child’s parent(s).

These results highlight children’s lack of protection in dependency proceedings, where critical interests are at stake as a judge determines whether a child’s parent or guardian is abusive or neglectful and whether to temporarily or permanently remove the child from the parent’s home. GALs are obligated to convey to the court a child’s wishes when they conflict with the GAL’s recommendation, but many do not, thereby silencing children’s voices and preventing judges from making fully-informed decisions. Despite a 2017 Virginia Supreme Court workgroup recommendation, there is still little accountability for GALs.

Further worsening the issues, GALs are not fairly compensated. The current structure–$75 per hour in court and $55 per hour out of court–gives little incentive for GALs to meet with their clients. Until we equalize GALs’ hourly pay in and out of court, we cannot expect all children to receive the representation they deserve. Children are entitled to high-quality advocates who advance their interests, and their attorneys deserve fair compensation.

Fortunately, the 2018 Family First Prevention Services Act (FFPSA) will open up federal funds to states to provide high-quality legal representation for children. Virginia should take advantage of these funds to increase GAL compensation, which will improve the caliber of their advocacy.

Higher quality legal representation helps protect children while also generating better permanency outcomes: children with quality counsel spend shorter times in out-of-home care and achieve permanency more quickly. This provides stability for children and results in cost-savings for the state.

To ensure that children are safe and able to experience the benefits of a permanent family, we need to do more to help GALs better represent children’s best interests. Virginia should demand GALs’ compliance with standards and utilize FFPSA funds to increase GAL compensation.

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