Representation matters: Foster youth deserve to be heard in court
As we celebrate today’s anniversary of the Supreme Court’s landmark ruling in Gault, we must ensure all youth have their voices included in legal decisions about their lives
By Dana Matsunami, Skadden Legal Fellow at the National Center for Youth Law
Imagine sitting in a courtroom where a judge is making monumental decisions about your life. Imagine that, unlike the court cases you may have seen on TV, there is no lawyer by your side. The judge has the right to make decisions about your future, but you don’t have the right to an attorney.
For most adults, this would be a terrible nightmare. Yet, it is still an all-too-common experience for youth involved in the child welfare system.
It was 57 years ago today — May 15, 1967 — that the Supreme Court issued its landmark Gault opinion, which extended due process rights, including the right to counsel, to youth facing juvenile delinquency charges. In other words, for the first time, young people in the juvenile justice system were guaranteed a lawyer. While this historic decision marked a watershed moment for youth rights in the U.S. — and is certainly a milestone worth celebrating — there is still much work to be done to ensure that young people’s voices are included in the legal decisions that impact their lives.
Today, youth in 13 states do not have a right to counsel in child welfare cases — cases in which life-changing and often irreversible legal decisions are made about a young person’s family, life, and future. Ensuring that everyone, including children, has access to quality legal representation in court cases is critical to safeguarding integrity, dignity, and justice. In recognition of the 57th anniversary of the Gault decision, let’s explore how the right to counsel can lift up the voices of youth and help reduce the harm they experience in the child welfare system.
Silencing voices
Hawai’i, the state where I live and work, is one of 13 states that still does not guarantee any right to counsel for youth in foster care. These youth are pulled into the child welfare system due to allegations of abuse or neglect by their caregivers. They are placed in the care of the state, and a judge is authorized to make crucial decisions about their lives, including where they will live and whether they will ever see their parents or siblings again.
Most states require that youth in the child welfare system be appointed a lawyer. Hawai’i is one of the few that only requires appointment of a guardian ad litem. While I have encountered tenacious and dedicated guardian ad litems, the role is distinct from that of a lawyer: a guardian ad litem’s duty is not to advocate for what their client wants. Instead, they make their own determination about what is in “the best interests of the child.”
Some states require both that a youth in foster care have a lawyer, and that the lawyer advocate for the outcomes that the youth wants; Hawai’i guarantees neither. This practice means that young people in Hawai’i can be removed from their families, communities, and homes; separated and alienated from siblings; placed in state custody; prevented from attending extracurricular activities; forced to change schools; permanently legally severed from their parents; and more, all without involvement from anyone who is required to advocate for what the youth wants.
Having qualified legal representation can make a world of difference: Children represented by specifically trained legal counsel are 40% more likely to leave the foster system within their first six months and experience a 45% higher reunification rate with their biological parents. They also experience a 30% reduction in the rate of placement moves, and 65% reduction in the rate of unnecessary school moves. Uplifting youth choice and voice in these proceedings ensures that young people have a say in what happens in their lives — and the transformative power of that say on outcomes for the young person, both in the short and long term, cannot be disregarded.
Without legal representation, children are left to navigate complex and often traumatizing proceedings on their own, putting them at risk of unfair treatment and having vital decisions about their lives made without their input.
Creating change
Children and youth have legal rights in foster care, including a right to family integrity, community connection, and safety. To protect these rights, we must listen to young people and ensure they have access to attorneys with specialized training in child welfare law.
The child welfare system has deep and troubling roots in slavery, the forced assimilation of indigenous youth, and anti-immigrant sentiment. To this day, nationwide, child welfare interventions overwhelmingly disrupt the lives of families of color. The racist impact of the child welfare system plays out uniquely in Hawai’i, where the legacies of colonization contribute to a complex cultural and racial landscape. Native Hawaiian families are disproportionately likely to be targeted by the child welfare system: Native Hawaiian children make up just 33% of Hawai’i’s child population, but account for nearly 45% of children in foster care.
I’m extremely grateful to be partnering locally with EPIC ‘Ohana, Inc., an incredible organization in Hawai’i that does thoughtful, difficult, hands-on work to improve outcomes for those entangled in the child welfare system. I work with community stakeholders, including youth leaders with lived-experience in the state’s child welfare system, to understand what a meaningful right to counsel would look like for foster youth and to advocate for new models that will better serve youth.
Partnerships like these — grounded in the strengths of a community — are foundational to the fight for child safety, family integrity, and racial justice. In this project, we are beginning to imagine a culturally responsive model of representation that supports young people and elevates their voices, instead of making them spectators to their own lives.
As we celebrate the anniversary of Gault, it’s critical that we continue to build on its legacy and ensure that young people always have voice and choice in their own lives and futures.
Dana Matsunami is a Skadden Legal Fellow at the National Center for Youth Law, where they are focused on issues related to child welfare. Dana’s fellowship project is focused on advocating for a right to counsel on behalf of youth who are impacted by the child welfare system in the state of Hawai’i. She collaborates with youth in Hawai’i as well as local and national advocacy partners to ensure young people’s wants and needs are amplified.
