Last week, the Health and Human Service (HHS) Office of Inspector General (OIG) released a new report confirming that HHS’s Administration for Children and Families (ACF) cannot ensure that all children who have been abused or neglected have court representation during judicial proceedings. The Child Abuse Prevention and Treatment Act (CAPTA) mandates that a State have provisions and procedures in place to appoint a court representative, guardian ad litem, to every case of child abuse or neglect undergoing a judicial proceeding.
The report’s key findings included that ACF, which is responsible for CAPTA’s requirement compliance for court representation, relies on States’ self-certification and does little monitoring. The Child Maltreatment annual reporting that States provide each year suggests a problem with appointing a representative for every child victim and ACF rarely reviews State’s implementation plans. In addition, States are not required to provide documentation verifying the States’ CAPTA self-certifications.
In the inspector general report, ACF stated that “the statute does not require that States in fact ensure that each child has [GAL] representation… that CAPTA does not provide [ACF] with the authority to monitor whether States effectively enforce their provisions and procedures and actually provide a GAL to every child victim… and that ACF bases its determination of compliance simply on whether States have in place provisions and procedures requiring GAL appointments, regardless of whether those requirements are effectively implemented and enforced.”
The inspector general analyzed the ten states (California, New York, Texas, Florida, Michigan, Massachusetts, Illinois, Indiana, Ohio, and Georgia) with the largest numbers of child victims of abuse and neglect in fiscal year 2016 and found that half of these states reported that they do not have systems in place to ensure that every child victim has a court representative.
ACF has provided limited guidance and no updated regulations to assist States in implementing the CAPTA GAL requirement, including best practices on determining a child’s best interests or requirements of the GAL; States interpretation differs across the nation. In contrast, the IM that ACF released in 2017 encouraging legal representation in child welfare proceedings is not specific to the GAL role and CAPTA GAL requirements. The Inspector General notes that the use of the IV-E funds for independent legal representation could have been beneficial for additional funding for states with attorney GALs or CASA programs in place to improve the court representation for child victims of abuse and neglect in judicial proceedings.
Other challenges reported by ACF officials or the States that impeded accurate court-representative data and the ability to appoint a court representative promptly included States unaware of technical assistance from ACF related to court-representation requirement, ACF receiving inaccurate court-representative data from States, a lack of centralized system in States, and finally communication between courts, court-representative programs, and child welfare agency. States reported a lack of funding for GAL programs, judges not appointing GALs to cases, and the capacity of GALs to meet the increasing number of children requiring representation as additional challenges in appointing a GAL.
Court representatives serve a critical role in ensuring the safety and well-being of vulnerable children victimized by neglect and abuse. Research has demonstrated that children with a court-appointed representative to advocate for their best interests have better outcomes. In the report, the Inspector General make recommendations to address the vulnerabilities identified and to better protect children, including:
- Conduct oversight activities to identify States that may not appoint a GAL to every child victim who undergoes a judicial proceeding, seeking statutory authority as necessary;
- Proactively provide technical assistance to States that face challenges in appointing a GAL for every child victim; and
- Proactively identify and address obstacles that States face in reporting complete and accurate GAL data.