Kids in foster care have right to counsel

OPINION:

It’s 9 o’clock in the morning when the phone rings asking me to collect a newborn from the hospital. She’ll be my fourth foster baby in two years, and I’m exhausted. But I still say yes.

I know the community needs all hands on deck. The city’s shelters and office buildings overflow with newborns and young children. It’s the peak of the opioid crisis, and every 15 minutes, another drug-exposed infant struggles into the world. 

By this time, I think I know what to expect: the complications from withdrawal, the sweating and shaking, the sleepless nights, the near-daily visits to the pediatrician.

What I didn’t expect is that to best care for this baby, I’d need to hire a lawyer.

As the baby’s first birthday neared, her mother asked me to adopt her permanently. She saw her toddler growing, thriving and loved. But the child protection agency filed a motion to block the mother’s wishes. In its estimation, my home worked fine temporarily, but the toddler should be raised with “her own kind.”

I felt sad. And angry. But above all, I felt like a mom. I started researching the law and making calls.

I couldn’t wrap my head around the fact that there would be no one to speak for the toddler in court. Although her future hung in the balance, she’d be the only party in court without representation.

So, I did what any mother would do. I hired two law firms to give her a voice. We successfully intervened in the case and after two grueling days in court, justice prevailed. Today, my school-aged daughter devours graphic novels, loves her rescue cat, and protests folding the laundry.

After that experience, I had to act. With three adoptions behind me and a seventh foster baby on my hip, I founded the Center for the Rights of Abused Children. We opened a pro bono Children’s Law Clinic and subsequently passed a consensus reform giving abused children the right to an attorney in Arizona, our headquarters.

Most children in the foster care system across the U.S. still lack this basic due process right — a right noticeably extended to the criminally accused who abuse them.

The Supreme Court in In re Gault guaranteed children accused of delinquency the right to counsel to protect their life and liberty interests. For the same reasons, the court should extend this guarantee to abused and abandoned children who are wards of the state.

Children in state care experience severe restrictions on their liberties, including a limited right to associate with family and placement in group homes, jails and even psychiatric facilities. One young man I met lived in state custody nearly his entire life, placed in 47 different homes from age 3 to 17.

Fundamentally, children’s lives are saved or lost in court proceedings. Children who die of abuse often have long histories of involvement with child protection. Consider the gruesome torture and murder of Gabriel Fernandez, baby Dylan Groves, and Chaskah Smith.

Representation won’t prevent every tragedy, but it would give more children a fighting chance. Research shows children in foster care with legal representation have better outcomes than those without. Children with counsel spend less time in foster care and group settings and move more quickly to adoption, guardianship or reunification.

Attorneys also provide a critically important backstop when state workers operate from ignorance or bias or simply get a child’s removal wrong.

One of our pro bono cases involved an 8-year-old girl. Adopted by relatives due to severe physical abuse, Baylee thought she’d found safety. Sadly, her nightmare had just begun. Doctors discovered grim physical evidence of sexual abuse on her tiny body.

Baylee bravely told workers about the repeated acts of sexual abuse she’d suffered, but the child welfare agency didn’t seek her protection. Instead, the agency sought reunification and forced Baylee to visit her abusers. The child was so frightened that she couldn’t get through the front door of their home without wetting herself.

We took Baylee’s case and won. Without an attorney in her corner, Baylee likely would have been returned to her rapists. 

At her final hearing, Baylee chose a new name for herself. It was telling that she chose to take the name of our litigator who had fought for her. Baylee thanked our attorney for giving her a voice and protecting her life when no one else would.

Children in foster care face odds few of us can imagine. Up to 80% of these children enter care with a significant mental health need. Children in foster care need special education more often than their peers, and just over half graduate from high school. Less than 5% graduate with a college degree.

The least we can provide innocent children is access to justice. We invite lawmakers to act now to guarantee counsel for these vulnerable and voiceless wards of the state, a first and necessary step to justice, family, and a future.

• Darcy Olsen is the founder and CEO of the Center for the Rights of Abused Children.