Why Appoint an Attorney for a Youth in Foster Care?
Although some children in Washington are currently given legal representation (for example, all foster youth over age 12 in King County are given attorneys and under a new law, children of all ages who have been legally free as to both parents for six months or more also have the right to be represented by an attorney), the right to counsel does not extend to all foster youth across Washington State or to foster youth of all ages. Fortunately, youth in foster care of all ages, across the entire state have the right to request an attorney to help them in their cases. Additionally, parents and caregivers have the right to request counsel be appointed for children.
Attorneys can be very helpful to youth in the dependency system by advocating for important issues that other parties might not prioritize, such as individualized services, sibling visits, or educational rights. Additionally, they can ensure that the child’s voice and perspective are being heard and respected in the court room. Below are real life examples of how the appointment of an attorney has helped Washington foster youth.
Click here to find a template Motion for Appointment of Counsel that can be used by attorneys for parents, CASAs, siblings and caregivers to request the appointment of an attorney for the child at public expense in their dependency or termination case.
Why appoint an attorney for a youth in foster care?
1. Attorneys for youth can ensure child’s previously unmet needs are addressed and can bring any unresolved issues to the attention of the court.
Children in foster care have legal rights to: reasonable safety, freedom from an unreasonable risk of harm, basic education, and adequate services to meet their basic needs. Braam v. State, 150 Wn.2d 689, 699-700 (2003); Wash. Const. art. IX § 1.
In one Washington case, a six year old with severe developmental delays was forced to use a wheelchair with missing pieces. One of the missing pieces was a strap that holds his head in place. In order to prevent him from falling out of the chair, his school was using duct tape to secure him. The child’s foster parent had been working for over a year to get the parts replaced, and both the CASA and the social worker knew of the problem, but did not bring the issue to the court’s attention. Under the new law, an Office of Civil Legal Aid (OCLA) attorney was recently appointed to represent the child. Once an attorney was appointed who understood the legal rights of the child, the attorney coordinated with all parties to ensure that the missing strap was replaced immediately.
2. Attorneys for youth can conduct child-focused investigations.
Children’s attorneys in Washington State are held to the standards as outlined in Meaningful Legal Representation for Children and Youth in Washington’s Child Welfare System. These standards require an attorney to advocate for the expressed wishes of their child client, to receive specialized training in representing youth, and to conduct independent investigations to support the child’s position, among other things. Meaningful Legal Representation Standards, 1.1(6); 1.2; 4.2.
In one Washington case, a 12 year old client was living in a group home after Children’s Administration said there were no foster homes available to him. The child had told the department that he wanted to live with his now adult sister, whom he had been separated from as a result of the dependency action, but the department reported that her whereabouts were unknown. When the child was appointed an OCLA attorney under the new law, the child’s attorney was able to conduct an independent investigation and within weeks located the sister and several other adult siblings. The child’s attorney contacted the sister, who was thrilled to get the call; the child is now visiting regularly with his sister and is on track to be placed with her permanently.
3. Attorneys for youth can prevent children from languishing in the foster care system.
Children in foster care have a right to permanence and a speedy resolution of their foster care proceedings. RCW 13.34.020.
In one Washington case, a birth mother voluntarily relinquished her parental rights almost immediately upon the birth of her child. Despite the child being legally free for adoption, the child languished in the foster care system for one and a half years. After the child was appointed an OCLA attorney under the new law, the attorney was able to hold the department accountable to the child’s right to permanence and a speedy resolution. Soon after the attorney was appointed the adoption was finalized and the case was closed.
In another Washington case, an OCLA appointed attorney was able to participate in adoption support negotiations to ensure the adoptive parents received the financial support they needed to care for a child with significant medical needs. This advocacy outside of the courtroom by the child’s attorney allowed the parties to reach an agreement, finalize the adoption and close the dependency case.
4. Attorneys can inform and advise youth on their legal rights.
In Washington State, youth who have had their parental rights terminated, but have not reached permanency in over three years, can request a reinstatement of their parental rights. RCW 13.34.215. This is a complicated legal proceeding that has the potential of opening previously closed opportunities for a permanent home for a foster youth. Without a legal advocate, children in the foster care system are unlikely to know about this option or how to go about exercising it.
In one Washington case, a child was adopted into a family after her biological parents’ legal rights were terminated. The child’s adoptive family was abusive to her and she was removed from her adoptive home and the legal rights of her adoptive parents were also terminated. The child had been in contact with her biological parents who had been clean and sober since their rights were terminated. The child’s attorney was able to explain the process of reinstating parental rights to the child, who decided this was an avenue she wanted to explore. The child’s attorney advocated for her client’s wishes and, though the Department did not initially support a petition for reinstatement, the attorney was able to convince the Department to agree to reinstate parental rights. The child is now happily living with her biological parents, who are on the path to a full reinstatement of rights and a closed dependency case.