Who Pays for Parents’ and Children’s Attorneys in Foster Care Related Court Proceedings?

An historical update: Title IV-E of the Social Security Act now can help states pay for attorney’s costs with matching funds. Certain children and their parents who are represented by attorneys involved in child welfare proceedings  are eligible.

On January 7, 2019, the federal Children’s Bureau changed the Child Welfare Policy Manual Q/A 8.4B to remove question 18 and replace it with a new question 20. The following language reflects that change:

We want to notify you of a change to the Child Welfare Policy Manual (CWPM).

We will remove CWPM Q/A 8.4B #18 and add the following new Q/A to section 8.4B:

Question: May a title IV-E agency claim title IV-E administrative costs for attorneys to provide legal representation for the title IV-E agency, a candidate for title IV-E foster care or a title IV-E eligible child in foster care and the child’s parents to prepare for and participate in all stages of foster care related legal proceedings?

Answer: Yes. The statute at section 474(a)(3) of the Act and regulations at 45 CFR 1356.60(c) specify that Federal financial participation (FFP) is available at the rate of 50% for administrative expenditures necessary for the proper and efficient administration of the title IV-E plan. The title IV-E agency’s representation in judicial determinations continues to be an allowable administrative cost.

Prior to this new policy development, federal matching funds were used to help pay for attorneys representing the child welfare agencies only. In fact, agencies were strictly prohibited from claiming funds for legal services provided by an attorney representing a parent or child.

Title IV-E matching funds fall into two categories:

1] Foster care maintenance payments– Payments to caregivers of eligible foster children where the federal government pays a percentage of state payments to these caregivers.

2] Administrative costs-expenses incurred by the child welfare agency, such as agency staff, buildings, administration and other related contract costs.

50% of administrative costs claimed for each eligible child is paid by the federal government. States can now seek administrative cost reimbursement to pay half of attorney costs for children eligible for Title IV-E foster care benefits and half the attorney’s costs for their parents to prepare for and participate in all stages of foster care legal proceedings.

The entire court process includes court hearings related to the removal of a child from the home, from the time that the case is first brought to the attention of the parent or child’s attorney through the time the case is terminated following the child’s return home, guardianship, adoption or aging out of the court process.

woman wearing black levis crew neck shirt and gray zip up jacket

This new policy now will ensure that reasonable efforts are made to prevent removal, finalize the permanency plan, and that children and parents are engaged in and fully complying with case plans.

Not all children in state supervised foster care are eligible for Title IV-E matching funds. Whether a child is eligible for such payments depends on the financial circumstances of the parents or relatives from whom the child was removed. A complicated set of criteria governs such eligibility.

States cannot claim either category of Title IV-E matching funds for non-Title IV-E eligible children, either to pay caregivers or for administrative costs. This means under the new policy, the federal government will not pay for half the cost of representation for allfoster children and their parents but will pay for the cost of child and parent legal representation based on a state’s proportion of foster children eligible for Title IV-E.

man pinching the cheek of woman sitting near rectangular brown wooden coffee table

How can we use the new funds as a catalyst for systemic improvements in representation, including models of multidisciplinary representation (attorney, social worker, investigator, peer advocate) and pre-petition representation?**Note that the costs of social workers to assist attorneys for parents and children can’t be included in claims for Title IV-E administrative costs.

Despite the limitations which still exist in the use of Title IV-E funds, this latest expansion demonstrates an expansion of the model itself. It seems that the federal government is finally beginning to understand the scope of services needed to successfully litigate, advocate and mitigate in cases involving fami

For information on why an intentionally targeted investment in child and parent independent legal counsel is so important and valuable, see the American Bar Association Center on Children and the Law’s Legal Representation Infographic  here:

cwrep infographic


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