Congress must strengthen the legal rights of foster children

Congress must reauthorize the Child Abuse Prevention and Treatment Act (CAPTA) before the end of this session, with long-awaited language to acknowledge and protect children’s legal rights.

I was only 18 months old when I was removed from my parents and placed in foster care. Like many of the roughly 250,000 children in America who enter foster care each year, my home was plagued with substance abuse and domestic violence that threatened my safety and well-being. My mother, who was only 22, struggled to care for my two older brothers and me, and had another baby on the way. In an attempt to protect her life, she dropped us off at a babysitter’s house and never came back. She thought it would be best to separate from us while my father was served a restraining order in case violence ensued. After several days, the babysitter became worried and made a fateful call to Child Protective Services. 

I remained in the foster care system for 17 years before emancipating, or “aging out,” at 18. My brothers and I would never live together again. I had my own rights and interests, separate and apart from the others involved in my case. I often reflect on those initial days in care and the early decisions made in my “best interest.” I now know that our social workers decided it would be best if we were separated in an attempt to “get our parents’ attention” and compel them to change — as if causing us to suffer could cure their addiction. It did not. Although I do not agree with all the decisions made in my case, I am grateful that as a California resident, I had my own attorney to counsel me on my rights and prepare me for court. 

Now I work as a policy advocate to ensure that children and youth in foster care have their voices heard. The only way to fully protect children’s rights in their court cases is by guaranteeing independent legal representation for their entire case. Dependency court proceedings are intimidating and can present a power imbalance: the child welfare agency and parents have attorneys to advocate for them, but children do not. Though 37 states do make sure children have legal representation, current federal law falsely equates community volunteers to trained legal professionals. They are not the same.

CAPTA is the only federal law that addresses the representation of children in their abuse and neglect cases. The law gets reauthorized every five years, in theory, but reauthorization has been pending since 2015 and some fear that if it is not moved now, with critical pending updates including this provision, it could be stalled for years to come. Both chambers of Congress passed bipartisan reauthorization bills last year and have a chance to make sure it is passed by year’s end. 

And here’s the good news: Federal policy, research, and equity concerns clearly support this change, and funding to help states pay for these attorneys is available. From the start, CAPTA was meant to protect children’s legal rights but a 1996 amendment, fueled by funding shortages, outlined a new standard equating representation by a volunteer guardian ad litem with a real attorney, shortchanging children in the process.

Would you want a nurse to perform your surgery or a paralegal to decide your court case? Attorneys are uniquely qualified to gain their clients’ trust through attorney-client privilege and represent them on equal footing with the other parties by filing motions and appeals and, in some states, subpoenas. Appeals, for example, could challenge the separation of siblings. Fixing this is supported by a bipartisan group of congressional leaders, by stakeholder groups across the child welfare spectrum, and by many former foster youth. The National Foster Youth and Alumni Policy Council identified high-quality legal representation for youth as one of their top recommendations. 

Reauthorization of CAPTA must get through Congress now, to correct this statutory flaw that has denied thousands of children fair representation in cases that will decide the most important parts of their lives.

Sarah Pauter, MPPA, is the founder and executive director of Phenomenal Families, a nonprofit that aims to elevate the voices of those in child welfare and other systems.