Advokids & Western Center on Law and Poverty Respond to False Allegations Leveled Against Investigative Report, Out of Sight, Out of Mind.

April 19th, 2024

Our recently released report, “Out of Sight, Out of Mind When Children in Foster Care in California Don’t Meet Their Court Appointed Attorneys,” set out to investigate California’s appointed attorneys’ compliance with their duty to have contact with their clients. We conducted an extensive survey and received responses from over 1000 individuals with lived experience. The  survey data was corroborated with qualitative interviews, analyzed by a data science expert and presented carefully, and peer-reviewed by an expert in the field. The report acknowledges the data’s limitations and in no way claims that the data represents the experiences of every child in the foster care system. But we also believe that the results highlight an important story from an important perspective.

We have been made aware of a “Response” to the report posted by the Children’s Law Center and signed by a coalition of children’s law offices and other contractors for dependency representation. Clearly the report has had a significant impact in the child welfare community. While we are surprised and saddened by the respondents’ defensive posture, we stand by our conclusions and the data upon which those conclusions are based.

The respondent organizations are not the problem. Their attorneys most likely do meet with a majority of their clients over the age of three. In their opening remarks, the respondents state, “The specific recommendations of the “Out of Sight” publication primarily focus on oversight over client contact, which we agree is fundamental to any attorney-client relationship.” Upon this we agree, which is why we set out to investigate attorneys’ compliance with the competency requirements prescribed by law, which include a duty to establish and maintain a professional attorney-client relationship.

The respondent organizations challenge the report’s conclusion that  “most children in foster care have most likely never met with their lawyer” as being “not true.” They base this claim on their collective representation of over 60% of the children “in foster care, non-minor dependents in Extended Foster Care, and youth who reside with their parent(s) under court supervision.” However, our report does not include children living with their parents under court supervision because they are not “in foster care.” Based on the data published by the UC Berkeley Child Welfare Information project, there were 43,633 children and youth in foster care on January 1, 2024. The total number of dependent and nonminor dependents in foster care in the counties listed in the “Response” was 19,725, which is 45% of the total foster care population. The respondents can speak to their policies, practices, and data with respect to the 45% of children they collectively represent but they cannot speak to the data, policies, and practices of the individual attorneys and legal organizations that represent the remaining 55% of children in California who are in foster care.

Our data on attorneys’ compliance with their legal obligation to meet with their minor clients under California Rule of Court 5.660 does not invalidate or challenge the respondent’s data because we are measuring two different data sets. Their data reports on meetings between their minor clients and their attorneys or their agents. Our data is centrally focused on meetings between minor clients and their attorneys. Although the agent language upon which they rely is in the rules of court, they fail to acknowledge that portion of the same rule that requires the attorney to have sufficient contact with the child, regardless of age, to establish and maintain a professional attorney-client relationship.

The value of having agents, instead of attorneys, meeting clients is largely a disagreement of opinion rather than fact, but two things mentioned explicitly in the report matter in this debate. First, while the respondent organizations cite the potential benefits of multidisciplinary collaboration when the agent is a trained social worker or other professional, the current rules do not require any level of training for “agents.” We are aware of at least one county firm that relies primarily on agents to see their clients but does not require its agents to have any child development training at all.  Second, survey respondents for the most part felt that the legal representation was more effective when the attorney met with the child, which is an important consideration.

The response to the report asserts that the “data do not meet any of the basic requirements to be considered research or evidence” but offers no factual basis for reaching this conclusion. Their specific objections to certain methods and assertions are addressed below:

1. The report is not based on a random sampling of caregivers and youth.

Because there is no public, central source of information identifying caregivers and former foster youth and the limitations imposed by confidentiality requirements, it would be impossible to survey a random sample of these individuals. That does not invalidate the experiences of the people who responded to the survey.

2. The report included more than one response from some caregivers.

Caregivers only completed more than one survey if they were responding to separate surveys about different and unique individual children in their care. There were no duplicate surveys included in the data analysis.

3. Some survey takers were individuals who had called Advokids’ hotline.

Appendix E of the report discloses that those individuals constituted 16% of the people who completed the survey.

4. Situations where the attorney had contact with the child at court, in school, at CSW office etc., and the caregiver would not be aware of the meeting.

Appendix E of the report acknowledges that some caregivers may have been unaware that certain meetings and events occurred outside of their presence.

5. The organizations behind the report did not receive IRB approval to conduct a study, and the methodology used does not meet any of the basic requirements to be considered research or evidence. 

IRB approval was not required as we did not survey minors. All research methodology was peer reviewed by experts in data science and reporting. 

6. The report did not consider “the data dependency organizations keep regarding client contact, nor did they request the ability to survey our current clients.

The intent of the report was to do an independent investigation and survey. The very same IRB rules they cite prevent surveying children, which is precisely why we surveyed adults who would have knowledge in most cases of whether the child ever met with their attorney.

We stand by our report and the valuable data collected. We stand by our belief that foster children and youth deserve full legal representation and engagement with an attorney to protect their rights. We stand by our belief that we have identified a number of counties in California where appointed attorneys are seriously failing their child clients and need to be held accountable to ensure that children and youth in foster care, and their rights, are fully protected.

 

Read our complete report.

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