Biden-Harris Administration Finalizes Rule Expanding Public Agencies Ability to Fund Legal Representation on Behalf of Families Involved in Child Welfare

Today, the U.S. Department of Health and Human Services (HHS), through the Administration for Children and Families (ACF), announced a new regulation to expand access to legal representation for children who are eligible for title IV-E foster care, their parents, kinship caregivers, Indian custodians and tribe by allowing state and tribal child welfare agencies to use federal funds to provide legal representation.

“Children and families in the child welfare system face many scenarios where access to legal services could help to ensure their safety,” said HHS Secretary Xavier Becerra. “This rule will allow child welfare agencies to use federal funds to help cover the costs of providing access to an attorney during civil legal proceedings when doing so would support a child’s needs.”   

 Many families that come to the attention of a child welfare agency are in the midst of, or recovering from, familial, health, housing or economic challenges. Research demonstrates that providing independent legal representation to parents and caregivers in civil legal proceedings prevents children from entering foster care and improves rates of reunification when children have been removed from the home.

“The foster care system should always be a last resort, and at ACF, we are focused on prevention and getting families the supports they need to thrive,” said ACF Principal Deputy Assistant Secretary Jeff Hild. “This rule will ensure more families, young people and tribes have access to legal services that are often key to a family staying safely together.”

This rule also allows federal funds to pay for representation of tribes when they participate or intervene in state court foster care proceedings for Indian children.

For example, under the new rule, a child welfare agency could provide a family at risk of entering the foster care system with legal representation to help to secure stable housing, secure public benefits, or establish custody or guardianship to prevent the unnecessary removal of a child from the home. For Indian children placed in foster care, federal funds can pay for tribes’ attorneys or representatives to provide the court with critical information about the child’s tribe.

Additionally, a child welfare agency could use federal funds to pay for legal representation for a parent to obtain an order of protection against an abuser when doing so would help the parent prevent a child from entering foster care. The rule will also allow a child welfare agency to use federal funding to provide legal representation to a youth exiting foster care to help them access legal documents that will help them achieve independence and stability.