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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 recognize 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 approximately 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, was struggling to care for me and my two older brothers, and had another baby on the way. In an effort 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 us while my father served a restraining order in case violence arose. After a few days, the babysitter became concerned and made a fateful call to Child Protective Services.

I stayed in the foster care system for 17 years before emancipating, or “growing 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 that were made in my “best interests”. 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 force them to change – as if it would cure their addiction to making us suffer . It didn’t. Although I do not agree with all of the decisions made in my case, I am grateful that as a California resident I had my own attorney to advise me of my rights and prepare me for court.

Now I work as a policy advocate to ensure children and youth in foster care have their voices heard. The only way to fully protect children’s rights in their court cases is to guarantee 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 lawyers to advocate for them, but children do not. Although 37 states ensure that children have legal representation, current federal law falsely equates community volunteers with 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 is in theory reauthorized every five years, but reauthorization has been pending since 2015 and some fear that if it is not moved now, with critical updates pending, including this provision, it could stall for years to come. Both houses of Congress passed bipartisan reauthorization bills last year and have a chance to make sure they pass by the end of the year.

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 beginning, CAPTA was intended to protect children’s legal rights, but a 1996 amendment, fueled by funding shortfalls, set a new standard that equated representation by a voluntary guardian ad litem to a real attorney, which children in the process fall short.

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

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

Sarah PauterMPPA, is the founder and executive director of Phenomenal familiesa nonprofit organization dedicated to elevating the voices of those in child welfare and other systems.

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