6 Children’s Legal Rights Journal [Vol. 39: 1 2019]
I could not move the system and make the kind of difference I wanted to on behalf of my clients.
It turned out the real problem was my caseload of many, many hundreds of children at one time. I
noticed it when, uncharacteristically for me, my voicemail box got full and remained so for over a
week, as I was unable to return all the calls. 37
From Legal Aid, I went to Children’s Rights, litigating class action reform cases on behalf
of foster children in many jurisdictions around the nation. 38 While I was there, we placed a major
focus on reforming not only the child welfare system writ large, but also the juvenile court system.
Kenny A. v. Perdue39 is notable not just for the principle that all children in dependency cases have
the right to a lawyer, but for the idea that, by having properly trained and resourced lawyers with
reasonable caseloads, foster children are more likely to have better outcomes. 40 The lawyer is the
bulwark against bureaucracy and the vindicator of the child’s substantive rights as against the state,
but only if the lawyer is able to devote enough attention to each client. You cannot be client-directed if you do not have time to talk to your client.
Fordham II also highlighted the extensive scope of the child advocacy role, making it a
lawyering job unlike any other. The conference attendees adopted a far-reaching set of
recommendations for what children’s attorneys should do, including meet their clients in their
communities; engage in broad-based coalition building; utilize financial and demographic data and
analysis in their advocacy; undertake legislative advocacy and community education, outreach,
and organizing; hold service providers accountable by challenging ineffective or harmful
programs; provide legal services in matters ancillary to the matter on which they are initially
appointed (holistic lawyering); remain constantly aware of their clients' level of functioning and
maturity of thinking (which presumably change rapidly as children grow); re-orient their entire
mode of advocacy to incorporate a truly collaborative multi-disciplinary approach, as well as to
more fully and authentically incorporate their clients' voices into their advocacy; model the
decision-making process for their clients and otherwise assist their clients in developing the
capacity to make their own decisions; and use the media as a key component in their advocacy,
among dozens of other recommendations. 41
Setting aside the aspirational reach of the Fordham II recommendations, the actual work of
the average child’s attorney is unceasing and has become far more professional since the National
Association of Counsel for Children was born some 40 years ago. The NACC annual conference
37 In a national survey of children’s attorneys conducted in the mid-2000’s, we found that nearly 18 percent of
respondents had caseloads of 200 or more, and almost 25 percent had caseloads between 100 and 199 cases. Howard
Davidson & Erik S. Pitchal, Caseloads Must be Controlled So All Child Clients Can Receive Competent Lawyering,
THE SPECIALIZED PRACTICE OF JUV. LAW 1, 6 (2006). The problem of too many cases for too few lawyers has long
been a contributing factor to endemic delays in New York City Family Court. See Martin Guggenheim & Chris
Gottlieb, Justice Denied: Delays in Resolving Child Protection Cases in New York, 12 VA. J. SOC. POL’Y. & L. 546,
566 (2005). In 2008, pursuant to a legislative mandate, New York State’s chief administrative judge issued workload
standards for attorneys for children, generally capping their open caseload at any given time to 150 child clients. N. Y.
R. Chief Admin. Judge § 127. 5.
38 Children’s Rights had brought the litigation against New York City’s child welfare agency that formed the backdrop
to my work at Legal Aid, see Marisol A. v. Giuliani, supra note 11.
39 Kenny A. v. Perdue, 356 F. Supp. 2d 1353, 1358 (N.D. Ga. 2005); Id. at 1362; see also Ira Lustbader & Erik Pitchal,
Implementation of the Right to Counsel for Children in Juvenile Court Dependency Proceedings: Lessons from Kenny
A., 36 NOVA L. REV. 407, 429 (2012).
40 Lustbader & Pitchal, supra note 39.
41 See generally Recommendations of the Conference on Representing Children in Families: Children's Advocacy and
Justice Ten Years after Fordham, 6 NEV. L.J. 592 (2006).