There are nearly 400,000 children in foster care in the United States. These children enter care for a variety of reasons, including due to physical abuse, sexual abuse and exploitation, neglect, parental substance abuse, abandonment, etc. In other words, some sort of trauma brought them to the attention of state or county child welfare officials. These children then experience a second trauma when they are removed from their homes and families. And some experience additional traumas while they are in foster care.
It is not surprising, therefore, that these children have complex, varied, and urgent legal needs. They are involved in family court matters because of the abuse or neglect that brought them into care. There may be criminal proceedings pending. They may need assistance with their immigration status, housing, their education, or to ensure their civil rights are not being violated. And, of course, those who are harmed while in care may also want to consult with a lawyer and take legal action against bad actors.
Many young people in foster care (and those supporting them), however, do not understand the legal resources that are available. With the hope of providing some clarity, below is a brief guide to the categories of lawyers who advocate on behalf of children in foster care.
Attorneys for Children and Guardians ad Litem in Abuse and Neglect Proceedings – Attorneys for children (“AFCs”) and guardians ad litem (“GALs”) are attorneys who appear on behalf of children in their underlying abuse and neglect cases. These attorneys will come to removal hearings, permanency hearings, termination proceedings, and the like.
It is important to understand, however, that these lawyers play very different roles. AFCs typically engage in direct advocacy, meaning they will argue for whatever position a child wants in court proceedings. GALs, on the other hand, must advocate for whatever is in the “best interest” of their client, even if that is not what the child wants.
Every jurisdiction has different laws and rules around which types of attorneys represent children. In New York City, for instance, children are entitled to an AFC, who advocates for whatever the child wants, so long as that child can state a position. In Colorado, on the other, hand, children under 12 are given a GAL, and those 12 and over are given an AFC.
Civil Rights Attorneys – If a child is harmed while in foster care, they can (and should) consult with a lawyer to determine which legal remedies are available to them. These harms come in many forms—foster parents, other youth, human traffickers, service providers, or staff at group homes or residential facilities might harm a vulnerable child. ALM Law represents children in these cases. In a later post, we’ll explore in more detail how youth who have been harmed while in care can find justice.
Criminal/Juvenile Justice Attorneys – If there is a criminal case pending because of something that happened to the child, a prosecutor may be in touch with the child. (Prosecutors represent the people of their jurisdiction, not individual victims.) Many prosecutors’ offices have victim advocates who will work alongside prosecutors to guide a victim through the criminal justice system and services that are available. Conversely, if a young person in foster care has a criminal or delinquency proceeding pending, then they will be entitled to a lawyer who can defend them in that case.
Disability Rights Lawyers – The National Disability Rights Network is the organization for the federally mandated protection and advocacy (P&A) system. There is a P&A agency in every state and U.S. territory, and they are charged with providing legal advocacy services to people with disabilities in their jurisdictions. For example, P&As will visit congregate care facilities (group homes, residential facilities, psychiatric residential treatment facilities) to ensure they are not violating the rights of children with disabilities. They will also get involved in lawsuits when children are not placed in the least restrictive, community-based setting.
Education Attorneys – These attorneys have expertise in ensuring youth’s educational needs are met while they are in foster care. This might mean making sure IEPs are created and the required services are put in place. It also might mean helping to ensure a child has educational stability and isn’t bouncing from one school to another. Some law firms, like Lawyers for Children, where I used to work, have in-house educational attorneys who specialize in those issues.
Housing Attorneys – Young people may also need assistance with housing, especially if they are about to age out of foster care without returning to a parent or guardian. In New York City, The Door is a wonderful program for young people, and their lawyers will assist them with landlord-tenant issues and accessing public benefits.
Immigration Attorneys – Immigration attorneys can assist young people in foster care their immigration needs. One example is with Special Immigrant Juvenile Status “SIJS” applications. SIJS is an immigration classification for undocumented youth who have been abused, neglected, or abandoned. It allows these young people to obtain legal permanent residence in the U.S.
Systemic Reform Lawyers – If a child welfare system is not functioning properly and is violating children’s civil rights, there are a handful of non-profit law firms that will try to reform those broken systems. My old firm, A Better Childhood, is one of them. Other firms include the ACLU and Children’s Rights. These firms will file class action lawsuits, litigating on behalf of many children at one time.
Trafficking Attorneys – These attorneys will often have expertise in several areas, including immigration law. They can link survivors with services, help them navigate the criminal justice system, and assist with civil and related immigration proceedings.
This may seem overwhelming at first, but it is important to understand the types of legal services that are available to children in foster care. Luckily, there are many legal experts out there who care deeply about their work and who can help!