1 How Family Defender Offices in New York City Are Able to Safely Reduce the Time Children Spend in Foster Care

• Author: Martin Guggenheim
• Pages: 1-36

1



New York City Are Able to Safely

Reduce the Time Children Spend in

Foster Care

MARTIN GUGGENHEIM*

Introduction

This is the third in a series of articles discussing the results of child

welfare cases in which parents in New York City were represented by a

 

        

Effects of an Interdisciplinary Approach to Parental Representation

in Child Welfare, was published in 2019.1 It described the results of a

multiyear study in New York City that compared the outcomes of child

welfare cases in which parents were represented by multidisciplinary

     

1. Lucas A. Gerber et al., Effects of an Interdisciplinary Approach to Parental Representation

in Child Welfare, 102 CHILD. & YOUTH SERVS. REV. 42 (2019), https://doi.org/10.1016/j.

childyouth.2019.04.022 [hereinafter Effects of an Interdisciplinary Approach].

* Martin Guggenheim is the Fiorello LaGuardia Professor of Clinical Law at New York

University School of Law. He gratefully acknowledges the outstanding research assistance

provided by Sean Eagan, New York University School of Law Class of 2019, and also thanks

Luke Gerber, Chris Gottlieb, Sue Jacobs, Peter Pecora, and Tim Ross for their support and

the careful attention they gave to this Article. This Article is dedicated to the outstanding

professionals who work in the family defense practices at the Bronx Defenders, the Brooklyn

Defender Services, the Center for Family Representation, and the Neighborhood Defender

        

        

the many parents living in poverty who have to endure the coercive intervention of the child

welfare system. Special thanks go to Caitlin Becker, Michelle Burrell, Michele Cortese, Emma

Ketteringham, and Lauren Shapiro for making it possible for this Article to have been written.



Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

2 Family Law Quarterly, Volume 54, Number 1, 2020

solo practitioners assigned from a rotating panel of lawyers.2 The outcomes

       

by the reduced amount of time children were kept from their parents’

custody as compared with parents whose lawyers were solo practitioners.3

The second article was a qualitative analysis that described the interviews

conducted of a wide group of professionals and former clients who work

closely with the two different kinds of legal representation models that

were compared.4 That article revealed the opinions of a broad range of

professionals working in the courts on what distinguishes the family

5

This Article serves to provide the reader with a deeper understanding

            

better explain how they achieve the results found by the quantitative





         

qualitative study. Part IV, the heart of the Article, describes accounts of

actual cases undertaken by this new breed of family defenders, to help

explain their superior ability to achieve the objectives of keeping children

safely with their families. This is written both to clarify why this kind of

representation is so successful and to help export the model to jurisdictions



characteristics of successful parent representation in child welfare cases

with a particular emphasis on proactive representation out of court. The

Article ends with the conclusion that those committed to a child welfare

system that avoids the needless separation of children from their families

   



2. Id.

3. Id. at 52.

4. Lucas A. Gerber et al., Understanding the Effects of an Interdisciplinary Approach to

Parental Representation in Child Welfare, 116 CHILD. & YOUTH SERVS. REV. 105163 (2020),

https://doi.org/10.1016/j.childyouth.2020.105163 [hereinafter Understanding the Effects of an

Interdisciplinary Approach].

5. Id. at 4–9.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

 3

I. A Brief History of Parental Representation in Child Welfare

Cases in New York City6

In 1972, New York’s highest court ruled that parents have a constitutional

right to counsel in child welfare proceedings.7 In 1975, the legislature

           

parents in child welfare proceedings.8 The legislation delegated authority

for funding and managing parental representation to the counties.9

Once parents had the right to counsel in child welfare proceedings, it

fell to the local New York City court administrators to design the legal

services delivery system to meet this new constitutional and statutory

right. But no one in the court administration or local government positions

in New York had any experience designing or maintaining a legal services



           

Coordinator, which had deep knowledge of the criminal justice system but

no experience with the child welfare system. As we will see, the lack of

  

welfare deeply disadvantaged parents and families for the next forty years.

    

parents in child welfare cases to solo practitioners from an assigned panel

of available lawyers.10 These lawyers, known colloquially as “panel

lawyers,” were already being used to represent parties eligible for court-

assigned counsel in juvenile delinquency proceedings, among a number of

6. Unless otherwise noted, the discussion in this Article concerning the history and practice

of parental representation in New York City is based on my own experience and knowledge

    



My professional experiences in New York City include founding and co-directing the Family

Defense Clinic at New York University School of Law; serving as a Founding Board Member

for the Center for Family Representation; being a member of the Board of Advisors for the New

York City Administration for Children’s Services from 1996 to 2013; and, most recently, since

2017, serving as a member of the New York State Commission on Parental Legal Representation.

7. In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972).

8. See N.Y. FAM. CT. ACT §§ 261, 262 (McKinney 2020).

9. See Id. § 262(c); MERRILL SOBIE, PRACTICE COMMENTARIES (McKinney 2020).

10. See N.Y. COUNTY LAW § 722(3) (McKinney 2020). To be eligible for assignments from



placed on the panel by a committee that reviews applications. In addition, they must be reviewed

periodically and formally retained to remain active members of the panel.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.