I. Introduction

The right to raise one’s children as one sees fit is perhaps “the oldest of the fundamental liberty interests recognized” in the United States and Pennsylvania. Troxel v. Granville, 530 U.S. 57, 65 (2000); In re D.C.D., 105 A.3d 662, 676 (Pa. 2014). However, as with most rights, the right to raise one’s children is not unlimited, or beyond the power of the state to regulate.  The state has the power, and perhaps the duty, to protect the health, safety, and welfare of the children who reside within its borders.  The legal framework through which the Commonwealth of Pennsylvania regulates the right of its citizens to raise their own children is colloquially referred to as the “juvenile dependency system.”  Through the juvenile dependency system, the court can temporarily– or permanently– remove children from their parents and homes and establish a permanency goal of reunification, which means returning the children to the parents, or some other disposition including the voluntary or involuntary termination of parental rights, which culminates with the adoption of the child.  

The Supreme Court of Pennsylvania has recognized that a decree terminating parental rights “is widely regarded as the civil law equivalent to the death penalty, forever obliterating the fundamental legal relationships between parent and child.”  In re Adoption of C.M., 255 A.3d 343, 362 (Pa. 2021). In fact, termination of parental rights is so serious that federal courts require proof beyond a reasonable doubt when the government seeks to terminate the parental rights of Native American parents over whom the federal government has jurisdiction. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) citing Indian Child Welfare Act of 1978, Pub.L. 95–608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp.IV) (noting that “Congress requires ‘evidence beyond a reasonable doubt’ for termination of Indian parental rights, reasoning that “the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty....”).  In Pennsylvania, the standard applied to termination of parental rights proceedings is clear and convincing evidence, which is generally recognized as the highest standard of proof in civil law, but a lower standard than proof beyond a reasonable doubt, which applies in criminal law.    

II. Background- the Adoption and Safe Families Act of 1997

The machinery of the juvenile dependency system is complicated and extensive. The Court of Common Pleas of Allegheny County is organized into four divisions: civil, criminal, orphans, and family.  42 Pa C.S. § 951(b). Interestingly, Allegheny County is the only judicial district in Pennsylvania that operates this way. In Philadelphia County, the civil and criminal divisions are combined into the trial division. These divisions are purely administrative, not jurisdictional.  Each division of the Court of Common Pleas “is vested with the full jurisdiction of the whole court[.]” Id. at § 952. Notwithstanding the purely administrative nature, the four divisions operate almost entirely independently of each other.  The divisions have separate judges, and they operate in different courthouses, with the exception of when a family division judge sits as the orphans court judge in adoption matters following termination of parental rights proceedings.   

Because of the profound reach of the juvenile dependency system, it often stretches through three, and perhaps all four, of the administrative divisions of the Court of Common Pleas of Allegheny County.  That is, juvenile dependency proceedings often involve the family, orphans, and criminal divisions. A common example of cross-division involvement is when a single factual episode results in both the filing of criminal charges and a dependency petition.  The orphans court division becomes involved when a party to the dependency matter files a petition to terminate parental rights, and the case moves from dependency to adoption.  The civil division might become involved with ancillary matters, such as landlord/ tenant disputes involving parents who lose their housing because of criminal charges or conviction. The significance of the intermingling of the various administrative divisions is discussed in more detail later in this paper.

The sprawling power of the juvenile dependency system is enacted through a network of statutes, regulations, and decisional case law.  At the heart of this network is the Adoption and Safe Families Act of 1997 (ASFA), which is a prolix and complex federal statute that was passed during the Clinton administration with bipartisan Congressional support. In fact, the ASFA passed the Senate with unanimous consent, and garnered only 5 nays and 12 no-votes in the House. It was sponsored by Representative Dave Camp, a Republican from Michigan, with 20 Republican and 11 Democrat cosponsors. The ASFA is contained within the Social Security Act, which is Chapter 7 of Title 42 of the United States Code.  

One might wonder how and why the United States government would be involved in the regulation of Pennsylvania’s power to protect the health, safety, and welfare of the children within its border.  After all, the United States government is one of limited powers, which are enumerated in Article I section 8 of the United States Constitution. Suffice it to say, the constitution does not empower the federal government to regulate the states’ power to protect the welfare of its children. So, Congress did what it often does– it conditioned the payment of money to the states on their creation of child welfare systems that comply with the terms of the ASFA. The section of the ASFA that controls the payment scheme is codified in Section IV-E of the Social Security Act.  Section IV-E is plainly titled “Federal Payments for Foster Care, Prevention, and Permanency.” In fiscal year 2020, the states collectively received $15,182,888,437.62 for child welfare spending from the federal government. Pennsylvania received $456,472,947.00.  Section IV-E is mind-bogglingly complex, and is virtually impenetrable for anyone but the most passionate legislative wonks. Seriously, try to read it yourself.  Critics of Section IV-E argue that it created adoption “bounties” that incentive adoption over reunification.  In fact, the federal government spends almost 10 times as much on foster care and adoption than on family reunification programs. 

So, where did this colossus of federal oversight come from? As one might suspect, the ASFA’s origin story emerged from the fog of the era of “crack babies” and “super predators.”   The ASFA arose from the same zeitgeist that created the much-maligned 1994 Crime Bill.  Critics of the ASFA describe it as racist and classist, while creating a middle-class entitlement to adopt babies from poor families. According to critics, much like the 1994 Crime Bill, the ASFA has caused immeasurable damage to black families and black communities.  

III. The Problems

The two central problems with the ASFA are its unyielding focus on “permanency” and  the requirement that states move to terminate parental rights once a child has been in foster care for 15 of the previous 22 months unless certain conditions apply.  42 USC §675(5)(E); see also 42 Pa C.S. §6351(f)(9).  Critics argue that the focus on “permanency” was a heavy-handed response to the cultural narrative of poor, black, drug-addicted mothers whose children were removed from the home only to languish indefinitely in foster placement.  

Anybody who has any experience working in the field of child welfare or criminal justice knows that 15 of 22 months is not enough time to correct the myriad physical and psychological problems caused by systemic, environment, and generational trauma. Additionally, as will be discussed later, reunification is often postponed and prevented by factors outside of the parents’ control.   Fortunately, the Supreme Court of Pennsylvania has interpreted Pennsylvania’s implementation of the ASFA to require only that the court consider the child’s time in foster placement as one factor during permanency review hearings. In In Re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).  Former Justice Joan Orie Melvin, a Republican, dissented in In Re R.J.T,  and used the opportunity to recount the history and rationale of the ASFA and its focus on permanency. Id. at 1193. 

Interestingly, on June 24, 2020, President Donald Trump (R) issued Executive Order 13930, titled “Strengthening the Child Welfare System for America’s Children,” 85 F.R. 38741, which attempted to modify and expand the ASFA.  One important modification appeared in Section 5(a)(iv), which states, 

Within 6 months of the date of this order, the Secretary shall provide guidance to States regarding flexibility in the use of Federal funds to support and encourage high-quality legal representation for parents and children, including pre-petition representation, in their efforts to prevent the removal of children from their families, safely reunify children and parents, finalize permanency, and ensure that their voices are heard and their rights are protected. The Secretary shall also ensure collection of data regarding State use of Federal funds for this purpose.

(emphasis added).

The emphasized language is quite remarkable because it acknowledged the importance of providing legal counsel BEFORE– to use a legal term of art– shit hits the fan.  Virtually all court-appointed counsel become involved AFTER legal process is filed, such as a criminal complaint or a sheltercare petition.  For example, the Allegheny County Office of the Public Defender cannot begin to represent a person until after a criminal complaint has been filed.  This puts Pennsylvanians who rely on court-appointed counsel at a significant disadvantage to those who can afford to hire private counsel.  Generally, the earlier in the process that a citizen can get legal counsel, the better the chances of preventing deeper penetration into the legal system. This is true for both criminal and dependency proceedings.  

On January 14, 2021, the U.S. Department of Health and Human Services, Administration for Children and Families,Children’s Bureau issued guidance responsive to President Trump’s Executive Order. See ACYF-CB-IM-21-06. The guidance is very well-researched, and cited the abundant and well-known research on the importance of holistic and interdisciplinary legal representation.  Not surprisingly, the guidance focused on developing strategies for better legal representation through the holistic representation model in dependency proceedings, and the need to provide more funding for additional training for attorneys.  However, the guidance contained no suggestion that Section IV-E funds can be used to directly pay attorneys to represent parents in dependency proceedings, or to pay for experts retained by the parent’s attorneys and other professionals who would comprise the interdisciplinary team that the guidance proposes.  

IV. Questions and Obstacles 

So, where does this leave us proletarians who toil under the financial beneficence of our federal sovereign? In other words, what do We The People get for the $102,805 personal share of the nation’s $34.5 trillion debt liability?  After all, those Section IV-E payments have to come from somewhere, right?

The Pennsylvania Department of Human Services, Fiscal Year 2024-25 Needs-Based Plan & Budget for the Office of Children, Youth, & Families of Allegheny County (NBPB narrative) attempted to answer, or perhaps respond, to these questions.  The NBPB narrative included a section called “challenges.”  The fourth challenge is titled, “Availability of High-Quality Legal Services for Parents.” NBPB at 5.  This section cited the usual bromides about the value of competent legal representation for parents and children.  The NBPB narrative cited research showing that high-quality legal counsel actually saves money and supports the purpose of the ASFA by reducing the amount of time that children spend in foster care. The NBPB narrative touted the oft-repeated conclusion that interdisciplinary legal teams save money over time.  For example, according to the NBPB narrative, 

Interdisciplinary legal teams enable a holistic approach to representing parents with dependency cases by bringing in the disciplines of social work and peer advocacy to assist in stabilizing families, leading to a quicker path to permanency and resulting in long-term savings. Research shows that interdisciplinary legal teams for parents hasten permanency for children in foster care by an average of 118 days.

Id. at 6.

The NBPB narrative described the challenge caused by the lack of federal funding provided by Section IV-E and the lack of state funding available to support high-quality legal counsel for parents.  The NBPB narrative concluded with the following observation: “Inadequate funding causes challenges in hiring and retaining attorneys, leading to significant delays in legal representation, thereby extending time to permanency.”  One of the proposed solutions to the lack of funding for legal counsel is investing in and expanding primary prevention and diversion services to families BEFORE the OCYF case is opened.  Again, this recommendation acknowledges the importance of appointing counsel as early in the process as possible– perhaps even before the formal process has officially begun. 

The NBPB narrative then considered the following question:

Is there interest by the county agency financially responsible for legal representation costs for parents in dependency proceedings in developing an MOU with the CCYA to draw down Title IV-E funds?

The answer is worth quoting verbatim:

Allegheny County recognizes the importance of quality legal representation for parents in dependency proceedings. The County contracts with Allegheny County Bar Foundation Juvenile Court Project to provide representation for parents. Additionally, the Courts maintain a conflict panel for those parents who cannot be represented by the Juvenile Court Project (and ACDHS and the Courts have established an MOU). To improve quality, ACDHS, as the Allegheny County Children & Youth Agency (CCYA), has begun to seek Title IV-E reimbursement for parent legal representation costs.

o If yes, what change(s) will be made to improve the quality of legal representation in dependency proceedings?

As part of our work to improve the quality of legal representation in dependency proceedings, the CCYA has piloted an interdisciplinary model with the Juvenile Court Project. The Courts also plan to enhance the model for providing representation to ‘conflict’ parents (e.g., parents whom Juvenile Court Project does not represent because they are the second parent on a case and therefore have a conflict of interest). These enhancements aim to improve parental support and timelines for reunification with children when possible.

A remaining barrier to the quality improvement of legal representation services is the high cost and minimal reimbursement available to counties. While Title IVE is newly available for this purpose, Allegheny County expects it will support less than 25% of the total services cost. Unfortunately, there is no state funding available for parent attorney costs.

As briefly mentioned earlier, reunification is often thwarted by factors outside of the parents’ control.  For example, the lack of family-centered drug abuse treatment poses one impediment to reunification.  According to the NBPB narrative, in FY 2022-23, 33% of children removed from their homes were in response to adult drug or alcohol abuse.  For children under 5, the number increases to 43%. Obviously, if the reason for a child’s removal was based on the parent’s drug addiction, the lack of available drug treatment would delay potential reunification. 

Another obstacle to reunification is the lack of efficient and appropriate transportation for children to participate in family visits.  According to the NBPB narrative, “up to 40% of transportation needs are unmet due to a lack of provider and staffing capacity.” Id. at 23. 

A third systemic problem is the staffing shortages among service providers.  The NBPB narrative reported that the “staffing shortage that has delayed families' receipt of services has also increased caseloads for CYF caseworkers, which slows down the pace of contacts with families, assessments, and updating family plans.”  Over the past year, the OCYF reported 187 vacancies. Id. at 68. 

Of course, OCYF’s staffing shortages must not affect the reunification of children with their parents.  This is one of the intercepts with the legal system that parents’ counsel could mitigate by ensuring that the systemic barriers to reunification are not attributed to the parents.  

V. Solutions

Every stakeholder in the juvenile dependency system agrees that high-quality, holistic, interdisciplinary legal representation for parents is necessary.  The American Bar Association published an infographic that described the benefits of high-quality legal representation in child welfare proceedings.  Under the “Quality hallmarks” section, the infographic includes a summary of the services that the parents’ attorneys provide in these proceedings.  One service is described as “collaborat[ing] with a multidisciplinary team, including parent mentors and parent social workers.” 

As discussed in the Background section, Allegheny County is somewhat unique in the organization of its Court of Common Pleas administrative divisions.  Allegheny County is the only judicial district in Pennsylvania that has four administrative divisions: Civil, Criminal, Orphans, and Family.  Because the juvenile dependency system is so overreaching, the administrative divisions create their own impediments to reunification by fragmenting the representation that parents get when they have cross-division legal proceedings.  So, here are some proposed solutions that are specifically tailored to Allegheny County.  

• A parent should have the same attorney represent him or her in both the dependency, criminal, and termination of parental rights proceedings.  

This topic was discussed in “A Dose of Resilience– Holistic Representation and the Locally Served Model.”  In many cases criminal charges and dependency proceedings stem from the same set of facts. A common recurring example is when a child sustains an unexplained injury that results in the filing of criminal assault and endangering welfare charges against a parent or parents in the criminal division as well an emergency sheltercare and dependency petition in the family division. If the parent qualifies for court-appointed counsel, the parent will be assigned an attorney from the Allegheny County Bar Association Juvenile Court Project (JCP) to represent him in the family matter, and an attorney from the Allegheny County Office of the Public Defender (OPD) to represent him in the criminal matter.  If either, or both, offices are conflicted, a criminal and/or family division judge will appoint conflict counsel as needed.  The JCP and OPD have their own internal procedures for assigning attorneys to individual cases.  These internal procedures often result in several different attorneys becoming involved in the case at various stages.  These offices also suffer from significant turnover, which exacerbates the problem of the carousel of lawyers who become involved in these cases. This creates a fractured representation model that fundamentally contradicts the holistic, interdisciplinary model of representation.  Another problem caused by this fractured model is that the attorneys appointed in each division rarely interact with each other.  Finally, the family division docket is confidential, so a court-appointed criminal defense attorney would not have access to it, unless he seeks a court order or serves a subpoena. But, without any access, it is often difficult for the criminal defense attorney to know what to ask for from the family division docket.

The solution to this problem is appointing a single attorney, trained in both dependency and criminal law, to represent the parent in both divisions. This would save time and money– and thereby help effectuate the purpose of the ASFA by reducing the amount of time until permanency. This solution would also improve the attorney-client relationship by eliminating the fractured representation model and replacing it with a seamless, vertical representation model A single attorney would have access to all of the information– the documents and records, including those made confidential by the Juvenile Act–  that he needs to competently represent his client in both divisions. The attorney could use the resources available in one division, such as the services provided by OCYF as part of its “reasonable efforts” to achieve the goal of reuniciation, to help mitigate the consequences in the other division.  The attorney could also negotiate resolutions that take into account the progress made by the parent in the other division. A single attorney would reduce the overall amount of time necessary to prepare both cases. Much of the preparation for the dependency case and the criminal overlap, especially when both cases stem from the same facts. Finally, if a single attorney were appointed to both cases, he would be in a better position to competently advise and counsel his client, rather than being forced to restrict his advice to one half of the client’s legal misadventure.

When a parent has pending criminal and dependency cases, the president or administrative judge should appoint the same attorney to represent the parent in both divisions.  The court appointment fee rate should increase to reflect the additional complexity, time, and court appearances required to represent a parent in both divisions.  For example, assuming that the parent is charged with a felony assault or endangering welfare charge, the court appointment rate in the criminal division is either $100 to $110 per hour.  The family division rate is $80 per hour.  If the court appoints a single attorney to represent the parent in both proceedings, much of the preparation between the two cases will overlap. For example, if the rate for dual representation is increased to, say,  $140 per hour for a single attorney, the court would save $40 to $50 per hour from the cost of two attorneys doing similar, overlapping work for one hour each.  

• The criminal division should defer to the family division in matters that directly affect the achievement of the goals set in the dependency case (other than incarceration).   

Under both federal and Pennsylvania law, the primary goal of the dependency system is reunification of the family. However, when a parent is facing criminal charges, the district magistrate judge or the criminal division judge will often impose conditions on bail that interfere with reunification, such as no-contact orders between a parent and his children.  The magistrate judges and criminal division judges will often include in their bail and sentencing orders a requirement that visitation must be supervised by OCYF.   According to the Pennsylvania Juvenile Dependency Benchbook 3rd Edition, “it is important that courts exercise oversight of visitation arrangements, and not leave this responsibility solely to the agency [OCYF].” §8.1. Furthermore,

In order to proceed effectively toward successful reunification in a case involving out-of-home placement, frequent and meaningful family visitation is essential. Visitation is also a key component of the agency’s “reasonable efforts” toward the goal of reunification, which the court must review on an ongoing basis. Thus, specific visitation conditions should be incorporated in the court’s orders at the end of each hearing.

Id. at §8.2.

Thus, the magistrate judge or criminal division judge cannot simply defer its supervisory function to OCYF. Nor can it impose a blanket order that effectively prevents reunification.  If the magistrate or criminal division judge imposes a condition on a parent that affects the dependency case, the judge has an obligation to supervise the parents’ progress towards reunification.  Because of Allegheny County’s administrative divisions, supervision of the dependency case resides with the family division. So, while the criminal division judge has the inherent authority to supervise the dependency case, doing so would contradict the administrative organization of the Allegheny County Court of Common Pleas. Also, it is unlikely that the criminal division judge would have the time, resources or inclination to supervise the dependency case.  Accordingly, unless there is some compelling reason why the magistrate judge or criminal division judge needs to impose bail or sentencing conditions that affect the overlapping dependency proceedings, they should refrain from imposing the conditions and defer to the family division judge. 

• The JCP and OPD should merge, or develop a collaboration system to identify cases and appoint attorneys in dual representation cases. 

The importance of representation by a single attorney in both dependency and criminal proceedings cannot be overstated.  Anecdotally, when a parent is represented by a single attorney, or by attorneys working in close collaboration with each other, the results for the parent and children are better and achieved more quickly.  While a merger of the JCP and OPD would create potential for additional conflicts of interest, this would be an acceptable risk considering the potential rewards for the parent, the children, and the entire system.  Working collaboratively, the offices could develop protocols for identifying potential conflicts of interest.  When such conflicts are identified, the offices could file a joint motion to appoint a single conflict attorney to represent the parent in both proceedings.  The two offices could jointly create a holistic parent representation unit staffed by attorneys who were specially trained in both dependency and criminal representation.  Alternatively, Court Administration could develop a panel of conflict attorneys who are able and willing to accept dual appointments when a parent has overlapping dependency and criminal cases.  This proposal is consistent with the NBPB narrative which called for the creation of a dedicated interdisciplinary conflict counsel office. NBPB at 22.

The NBPB narrative also acknowledged the need for a cross-agency process that has expertise in multiple systems.  NBPB at 32. The Allegheny County Department of Human Services “employs a unit of multisystem specialists to provide administrative technical assistance across systems for children and youth whose needs are complex.” Id. Interestingly, the NBPB narrative did not connect the two pieces– the need for high-quality legal representation and the need for expertise in multiple systems. The creation of a panel of attorneys who are able to provide representation to a parent in both dependency and criminal proceedings would advance the call for high-quality holistic legal representation and decrease the time and expense of both dependency and criminal proceedings. 

VI. Conclusion 

The AFSA is not an entirely bad law.  For example, the ASFA emphasized placing children in kinship care, rather than foster care and group home settings.  However, the ASFA did create problems associated with, and reminiscent of, the misguided approach to criminal justice reform that enthralled the United States in the late 1990s. While there have been vigorous and passionate calls to repeal the AFSA, it remains the law that effectively controls juvenile dependency in Pennsylvania and Allegheny County.  Every stakeholder in the system, from the president of the United States to the leadership of Allegheny County OCYF recognizes the need for high-quality, holistic, interdisciplinary legal representation for parents in the dependency system.  One readily available, but overlooked, solution is providing legal counsel who can represent parents in overlapping dependency and criminal proceedings.