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Strengthening legal advocacy isone way to help address these chal-lenges. Through its work on adoles-cent health issues,2 the ABA is in-volved in trainings across the coun-try on representing young or expect-ant parents in care. Some commonquestions practitioners face whenadvocating for these youth appearbelow. The answers can be helpfulin your advocacy.

A teen mother or fatheris in foster care. Can the

state automatically take custody ofthe teen’s child simply because theparent is a ward of the state?3

No. A state can only take custody ofa child if the statutory definition ofabuse or neglect is met.4

United States Supreme Courtcases dating to 1923 have held par-ents have a fundamental right tocustody of their children and tomake important decisions regardingtheir upbringing.5 In Lassiter v. De-partment of Social Services, theCourt stated:

This Court’s decisions have bynow made plain beyond theneed for multiple citation that aparent’s desire for and right to‘the companionship, care,custody and management of his

or her children’ is an importantinterest that ‘undeniablywarrants deference and, absenta powerful countervailinginterest, protection.’6

If the state wishes to perma-nently sever a parent’s rights to theirchild, it must afford that parent dueprocess, and meet a standard ofclear and convincing evidence.7

Although the Supreme Courthas limited the constitutional rightsof minors in some circumstances,8 ithas never addressed the rights ofteen parents, in part because nostate has passed a law restricting theparental rights of minors basedsolely on age.9

Can the care provider ofa youth in foster or

residential care receive fundingfor the youth’s child even if thechild is not in state custody?

Yes. Title IV-E of the Social Secu-rity Act allows maintenance pay-ments to be made for the child of ayouth in foster care: “Foster caremaintenance payments made onbehalf of a child placed in a fosterfamily home or child care institu-tion, who is the parent of a son ordaughter in the same home orinstitution, must include amounts

which are necessary to cover costsincurred on behalf of the child’s sonor daughter.”10 (Emphasis added.)

What expenses shouldmaintenance payments

made on behalf of the youth’s childcover?

These payments should be limited tofunds for items listed in the defini-tion of foster care maintenancepayments.11

“Foster care maintenance pay-ments” are defined as “paymentsmade on behalf of a child eligiblefor Title IV-E foster care to cover thecost of (and the cost of providing)food, clothing, shelter, daily super-vision, school supplies, a child’spersonal incidentals, liability insur-ance with respect to a child, and rea-sonable travel for a child’s visitationwith family, or other caretakers.”12

The law also allows for reim-bursement of local travel needed toprovide the items above, and someadministrative or operating costs forchild care institutions.13

How can lawyers betterserve teens in care who

are parents or expectant parents?

Ensure the child welfare agencyprovides services the teen needs toparent successfully. These include:

a supportive placement where theparent and child can live together(or visit frequently in the case ofa noncustodial parent);prenatal and postnatal care formother and child;health and nutrition education;mental health services, ifnecessary;gender and age-appropriateparenting classes andsupport groups;

Advocacy for Young or Expectant Parents in Foster Careby Lisa Pilnik and Laura Austen

HEALTH MATTERS

Arecent study by Chapin Hall of over 4,500 young or expectant parentsin foster care in Illinois found that:

Although most females received some prenatal care, more than one infive pregnancies involved either no prenatal care, or care that beganduring the third trimester.Twenty-two percent of mothers were investigated for child maltreatmentand 11% had one or more of their children placed in foster care.Only 44% of females and 27% of males had received a high schooldiploma or GED.86% of the youth were African American.Almost 25% of teen mothers in the study had two or more children.1

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Copyright © 2009 American Bar Association. All rights reserved.

Vol. 28 No. 7 ecuring ABA Child Law Practice —www.childlawpractice.org 111

child care;transportation;education (Title IX of the Educa-tion Amendments of 1972 givespregnant and parenting studentsthe right to stay in their sameschools);independent living services (i.e.,planning for housing, school orjob opportunities, and health careaccess).

Revisit the current placementand permanency goals often withthe youth. Explore what other sup-ports are needed to reach the place-ment and permanency goals. Somejurisdictions have found that a“shared responsibility plan” be-tween the teen parent and her or hisfoster parents can help. (For an ex-ample, visit calswec.berkeley.edu/.../SB500_handout3_SharedRespon_blj_11_07_06.doc.)

Advise the youth that the childwelfare agency may seek custody ofthe youth’s child. Counsel the youthon steps to take to ensure he or shekeeps custody of his or her child (orretains unsupervised visitation for anoncustodial parent). Such steps in-clude obtaining prenatal care, at-tending parenting classes, and estab-lishing proper child care while theyouth attends school or work. Keeprecords of all steps the youth hastaken to be an appropriate parent,including certificates for completingservice programs. Also considerasking service providers to write let-ters sharing their positive observa-tions of the client’s parenting skillsor to testify if the agency tries to ob-tain custody of the child.

Help your client handle relatedlegal issues, such as paternity orchild support, either directly or byhelping the client obtain other low-cost or free legal services. For anunmarried teen father client, it is im-portant that he establish his paternalrights as soon as possible to ensurehe can continue his relationship withhis child while the father is in foster

care and after he transitions out ofcare.

Can a lawyer represent ateen parent in her own

dependency proceedings as well asrepresenting the teen as a parent’sattorney in proceedings about hisor her child?

If the lawyer represents the teenunder an expressed wishes repre-sentation model and is competent torepresent parents in child welfareproceedings, then this dual repre-sentation is proper, and will likelybenefit the client. However, if thelawyer acts as a guardian ad litem(GAL) under a substitutedjudgment model then the lawyershould not also represent the clientas a parent’s attorney. Since it is

foreseeable that the client’s positionas a parent may diverge from whatthe GAL believes is in his or her bestinterests as a youth in foster care,dual representation is inappropriate.

What basic principlesshould lawyers keep

in mind when representing a teenparent in a child welfareproceeding?

The attorney should represent thechild according to the American BarAssociation’s Standards of Practicefor Attorneys Representing Parentsin Abuse and Neglect Cases.14

Lawyers must keep in mind theage of their client and use terms theycan understand. The lawyer shouldensure teen parents understand thateven though they are in foster care,

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One Lawyer’s Story

After Karen’s client, Diane, became a mother at age 16, she and thebaby continued to live together in Diane’s foster home. Diane primarilytook care of her baby, but often asked her foster parents to care for thebaby when she went out with friends. Her foster parents complained tothe child welfare agency that Diane sometimes came home late or didn’ttell them where she was going when she was out. They also said thatDiane had thrown a blanket on top of her child, which they thoughtshowed carelessness, although the baby was not harmed.

The agency filed a petition for custody of the baby, claiming thatDiane was not able to parent her child adequately. Karen representedDiane in a trial on the merits and argued that the allegations made by theagency were untrue or did not constitute harm to the baby. The judicialofficer agreed that the allegations could not be sustained and the agencydid not get custody of Diane’s child. After the trial, Karen worked withthe agency to ensure that as part of Diane’s case plan in her own depen-dency case she was receiving all services she needed to be a better par-ent, including weekly visits from a parenting aide.

Looking back, Karen believes the foster parents were frustrated be-cause they felt they had too much caretaking responsibility for Diane’sbaby, and the agency’s involvement might have been avoided if Dianeand her foster parents had agreed in advance how much they eachwould care for the baby. She also thinks Diane would have benefitedfrom more services in her case plan aimed at supporting her as a parent.(See discussion, at left, of “shared responsibility plans” and services thatcan help teen parents.)

they still have a right to be a parentand participate in all aspects of rais-ing their children (or many aspectsfor a noncustodial parent). The law-yer should hold others working withthe youth (social workers, fosterparents) accountable in allowing theteen to participate in parenting hisor her child. Documentation andtestimony should be presented tothe agency and the court on theteen’s efforts to appropriately parenthis or her child.

Lisa Pilnik, JD, MS, is a staffattorney at the ABA Center onChildren and the Law, Washington,DC. Laura Austen is a student atCapital University Law School anda Child Welfare and Adoption LawFellow at the National Center forAdoption Law and Policy in Colum-bus, OH.

Endnotes1 Dworsky, A. & J. DeCoursey. Pregnant andParenting Foster Youth: Their Needs, TheirExperiences. Chicago: Chapin Hall at theUniversity of Chicago, 2009.2 The ABA Center on Children and the Law’sadolescent health work, including this article, issupported through its Partners in ProgramPlanning for Adolescent Health (PIPPAH) grantfrom the U.S. Department of Health and HumanServices, Health Resources and ServicesAdministration, Maternal and Child HealthBureau.

3 In most instances, this article discusses federalstatutes or Supreme Court case law regardingparents and the child welfare system. Consultyour state law to determine if additionalprotections are given to parents generally or teenparents in foster care specifically. See, e.g.,California’s recently enacted Protecting theRights of Teen Parents in Foster Carelegislation, AB 2483.4 See, e.g., In re Hall, 703 A.2d 717 (Pa. Super.Ct. 1997).5 Meyer v Nebraska, 262 U.S. 390 (1923);Pierce v. Society of Sisters, 268 U.S. 510(1925); Prince v. Massachusetts, 321 U.S. 158(1944).6 Lassiter v. Dep’t of Social Servs. of Durham

County, N.C.; 452 U.S. 18 (1981) (citingStanley v. Illinois, 405 U.S. 645 (1972)).7 Santosky v. Kramer, 455 U.S. 745 (1982).8 In re Gault, 387 U.S. 1 (1967); Tinker v. DesMoines Indep. Community School Dist., 393U.S. 503 (1969); Bellotti v. Baird, 443 U.S.622 (1979); Wisconsin v. Yoder, 406 U.S. 205(1972); Parham v. J.R., 442 U.S. 584 (1979).9 Buss, Emily. “The Parental Rights ofMinors.“ Buffalo Law Review 48, 2000, 785.10 45 C.F.R. §1356.21(j).11 45 C.F.R. §1356.21.12 45 C.F.R. §1355.20.13 Ibid.14 Available at www.abanet.org/child/clp/ParentStds.pdf.