Delving into the Intersection Between Child Welfare, Education, and Juvenile Justice: A Conversation with Dawne Mitchell

Dawne Mitchell is the Attorney in Charge of the Juvenile Rights Practice at The Legal Aid Society, the oldest and largest provider of legal aid in the United States. She oversees a team of more than 350 staff members and volunteers that works to tirelessly defend the rights, needs, and interests of children who appear in Family Courts in New York City on Child Welfare, Parental Rights, Persons in Need of Supervision, and Juvenile Delinquency matters. Her leadership has sought to challenge and impact the racial disparities and systemic issues that have led to poor outcomes for children, disruption of families, limited educational advancement of youth in care, and a burdened system of care for children and families for generations. Dawne serves on the NYS Permanent Judicial Commission on Justice for Children, the First Department Advisory Committee, and is a member of several New York City Bar Association committees and workgroups.

The interview below was conducted in the fall of 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Thank you for joining me today. I would love to begin with hearing about your journey, about what drew you to public interest law, and more specifically, The Legal Aid Society (LAS). How has your journey evolved, and what are the different roles you've held at LAS?

DM:  I’ve always had a desire to be a community lawyer. That goes back to my days in high school. I grew up in Philadelphia, and there was a cool program where we got teamed up with lawyers and judges. My first exposure to the courtroom was working with my mentor, a criminal defense lawyer. In high school I got to feel like a real lawyer because my mentors at the time, through this program, were very supportive of my dream, and they would give me legal problems to solve. I dressed like a lawyer and I was beginning to sound like a lawyer. At least, a people's lawyer — understanding the issues that the people had and what it takes to have compassion and a sense of urgency to represent folks who can't afford an attorney.

I went off after college to work in banking to be able to afford law school. Then, my first year of law school, I jumped right into engaging in not-for-profit legal service work and focused much of my law school clinic experience on serving people in the community. Right after law school, my first job was a fellowship working on an elder law project, then a HIV law project with New York Legal Assistance Group. Then, I found my way to LAS, and to Juvenile Rights Practice (JRP). One of my colleagues had suggested legal aid and juvenile rights as an avenue I might want to pursue after my fellowship, and that's when I became aware of representing children in court systems. I quickly applied, got the job, joined LAS, and that's been 25 years [laughs]. So, I came in and for 25 years have been representing children. I think one of my very first experiences was observing a young person in court that looked like me, whose family looked like my family. I immediately became a very compassionate advocate for young girls who found themselves caught in the midst of societal harms and juvenile justice. In my career as a juvenile rights trial attorney, I did both child welfare -- neglect, abuse, adoptions, and terminations -- as well as juvenile justice work, and eventually became a specialist in juvenile justice. In 2001, I became a manager of trial attorneys and served as a manager in multiple offices. Ultimately, I headed to the Bronx office for a number of years and then I became the head of the JRP. It's been a very robust career, very fulfilling career, great purpose-driven career. I never ever looked for another job. Many sleepless nights, up early, up late, just to get the work done — there’s never enough time in the day. I pursue this work as if the clients we represent are my brothers and sisters. I truly believe I am connected to the communities we serve. I want every client to feel as if they are given the top priority of the day, and as much of the resources as we can provide to them, to give them the best opportunity for the best outcome on their case.

HULR: That's amazing, and I think the work that you've done, and that LAS as a whole has done, is so vitally important. I would love to dig more into the kind of work LAS does and the communities you serve. I guess now we’re kind of digging into the deeper issues, and the question I have is why does an organization like LAS need to exist? What do you see as some flaws in the current child welfare system?

DM: The history of the JRP dates back to 60 years. Our founder really instituted representation for young people in Family Court before the law was even established. It was done the same way we do things now: in coalition and in conversations with stakeholders in child welfare. There was apparently a discussion about the need for counsel for children, the way adults are provided counsel in criminal court because their liberty often is at stake. When you think about due process and the rights granted to children, New York state was really one of the first trailblazers in that respect. There are still states now that don't guarantee the right to counsel for children, but New York, through a case called In re Gault, firmly established the right to counsel for kids. Beyond that case, the New York State Legislature adopted legislation and so it's been etched in stone that the state will pay for the representation, the mandatory representation, of every young person who finds themself the subject of a court proceeding in Family Court. So, why LAS? Because LAS dates back even beyond 60 years as being the innovators of public interest, legal services work, starting in addressing housing rights, immigration rights, and then criminal defense. And so, why wouldn't LAS evolve to have a practice that supports the mandatory right to counsel for children?

We represent households, and the truth of the matter is that there is this intersection between, on some levels, our criminal practice and our representation of adults in Criminal Court, our civil practice with representation in housing, immigration, civil litigation, and Family Court. When you think about it, these are all one community and often these communities are households. At LAS, we represent greater than 300,000 households in the city: vulnerable, underrepresented, income insecure, housing insecure, food insecure, children with poor education opportunities and support and, of course, children who may find themselves as victims of neglect or abuse. Or juveniles, they get arrested for behaviors that would be considered juvenile delinquency. We're in the business because we really do believe in our mission that no person in New York City should be without counsel. We actually believe that even for our non-mandatory representation practice, which is mostly civil. We truly believe that no person should go without counsel if there is a legal manner or crisis that requires legal intervention.

HULR:  Great, I love how you touched upon the intersection of the education system, Family Court, and juvenile delinquency. I would love to hear your thoughts on what you think are systemic failures that are resulting in, for example, kids in Family Court then later becoming involved in juvenile delinquency. And then, I’d also like to get your thoughts on potential solutions to address that issue.

DM: One of the ways that we do work is through direct representation, so we represent individual clients, but we also look at and support reforms and advocate for reforms to systemic issues that we see. One of the things we see is this inner intersection between low performance and educational outcomes for children in foster care. Once we started to see this, we started to dig to see, where are the voids?  What is happening in a child's life in foster care that leads them down this journey of having poor educational outcomes? The facts are that kids in foster care are 50% more likely to have more than one household placement. There are, on any given day, in certain systems, somewhere between 90 and 99% Black children. They are all families that have been impoverished families, families that have housing instability. We find that all of these — poverty, income instability, and housing instability — can lead to issues that are presented in Family Court as neglect.

Once they're then in the system, the child welfare system, this idea that these children will have consistent, regular, same education services, just isn't the case. There isn't necessarily the parent advocating for the right education services, particularly if they're displaced. And there's a great amount of disruption. These children start in one school, then they end up at another school. And, we've found that kids in the child welfare system, in public schools, seem to be the target kids for suspensions and disciplinary issues. The way the Court deals with these kids, they are often shut out and isolated. And ultimately, for some of them, the school will call the police and make a report about some behavioral issue which, I'll be quite honest, if the kid were not in a public school in New York City, or not of color, they wouldn't call the police. But the actions that schools take are to call the police, to disregard family, disregard alternatives, disregard perhaps the need for mental health services and support, or social services and support. Then, the police begin what we call the school-to-prison pipeline.  

I heard a gentleman speak a couple of months ago. He's now a very successful motivational speaker, but also had a long career in juvenile justice. One of the things that he talked about was how throughout his years of  being in foster care, he was never taught to believe in himself. He was never taught or encouraged to do better. His brothers, who also spent time in foster care, are serving life sentences in prison, as we speak. He struggled in school, but he talks about having someone in his pathway at times that would interrupt some of the negative interactions that these systems impose on kids. Ultimately, he finished college, went to graduate school, and became a successful person, but he talks a lot about the differences between him and his brothers, and how the school system itself guided them to their path. He said in school he just happened to get the teacher that one year that interrupted failure and would not give up on him. That was the difference between his pathway — his pipeline — and the pipeline that his brothers didn't have the fortune to have interrupted. So there's this intersection.

One of the things that we advocated for this year and were successful with was getting the Department of Education (DOE) to devote a workforce within the DOE that's just going to focus on kids in foster care because we think that's an important cohort of kids in public school. There are about 8,000 kids in foster care in New York City on any given day, 6,000 of whom are school-age children. We want to make sure the DOE is taking the time to focus on the needs of these kids. These children do need a holistic approach to education and their social services, and so I think the solution comes around this idea of wraparound systems of care where systems talk to each other. The first step in doing that is creating an isolated group that's going to have a high-level understanding of what it means for a kid to be in foster care: What does that pathway look like for the kid? So, having someone with high-level information and understanding, and having these systems share in their ability of stakeholders to build the right plan for the kids’ success, I think, is the right approach. That's the kind of solution, innovation, that we push for. While we're court-appointed attorneys for kids, and you would think our focus is in the courtroom, much of our focus is outside the courtroom, using our advocacy and leveraging our institutional value and strength to get big agencies like the DOE to secure a special unit to address the kids in foster care.

HULR: Thank you for that. It was very helpful to me to hear you unpack all those different factors leading to kids in foster care facing challenges that can lead to adverse outcomes. Obviously, during this pandemic, we’ve heard a lot about how low-income families have disproportionately been negatively affected by the pandemic. Could you describe how the pandemic has affected clients and new challenges that have only been exacerbated over the last year and a half? 

DM: Sure. I do believe that children in foster care and the Family Court system have suffered tremendous loss and trauma as a result of the pandemic. That's not lost on us. One of the things that we happen to be engaged in is the Family Court process. But the Family Court spent no time whatsoever understanding or appreciating the impact of the pandemic on the families that came before it. There was a sense that families could access the Court virtually to resolve some of the most challenging personal experiences that they had. For us, it meant losing touch with our clients in a very intimate way. All of our contact with clients, even to this day, for the most part, is virtual. It means reaching clients on their tablets and cell phones, but generally speaking, kids don't have control of those devices, so most of our clients are accessing them through an adult. What does that mean? That means that, in a true attorney-client relationship, there is no one else who's in the room while an attorney is speaking to their client because then that would violate their right to confidentiality and privilege. But during the pandemic, we often had to do what we had to do, and our clients under a certain age had to use some adult’s device to even access their lawyer. So, that impact is known and I can't wait to get beyond it. We're opening our office in a few weeks, but the Court has yet to open its doors to litigants. As soon as it does, then we'll start to see more kids in person and more interaction in intimate and confidential ways. 

The other thing that I think the pandemic has done is, because of the way the Court has handled it, created significant delays with cases. Once the Court interacts with a family on the reason that there is some allegation of neglect or abuse, or if the Court is interacting with a young person, because that person got arrested, the last thing you want is the Court to open a case and then put it aside. That is what happened largely all of 2020. Cases were filed and they did not progress whatsoever. The Court adjourned thousands of cases. People did not have access to the courthouse in these matters. What was being lost, no matter how hard we argued with the Court, was things like visitation with their parents, grandmothers, and siblings who didn't live with them. Folks couldn't access the Court for orders from the Court around things like a visitation. The delay in court also led to kids languishing longer in foster care, because of the way that permanency is reviewed in these kinds of matters, the Court has to hear about the goals for the family at least every six months. But in a 12-month, 18-month period, we found that the Court barely scheduled these cases, much of which was the result of the Governor’s Executive Order, but the Court is still not eager to be open. This is something that we see every day. It's something that we're constantly trying to raise before the Court — not just handling the matter before the Court, but to also express as stakeholders that the harm to these kids is so much greater than they ever could imagine. Disruption of families is bad enough; disruption of families during a pandemic is your worst nightmare, and I think that's what many kids experienced this year.

HULR:  So, I would love to hear how LAS has adapted to these new challenges you brought up. As well, maybe you could talk about a few areas of reform that you think have become even more necessary throughout the pandemic.

DM: Well, the Governor's Executive Orders very early on only allowed for the filing of emergency court matters, so any non-emergency court matter was not filed. I think that the extent to which agencies like the Administration for Children’s Services (ACS) had to find other mechanisms to provide services and support for families without bringing in court intervention is a learned lesson. Once the Court began to allow for the non-emergency cases to follow, we saw a slight uptick in filings, but for the most part, filings have remained pretty consistent. It just goes to show that systems, firstly, can change; systems can build, can utilize, and can rely on mechanisms other than the Court to address issues of family dysfunction, income insecurity, or other poverty-related issues. The Family Court doesn't necessarily need to have a family dragged into it to talk about things, like how untidy their houses are, when there are systems in place that can provide support to families that need support around those issues. But before the pandemic, if a parent had a very dirty house or untidy house, and some odd thing happened, often the fact that the parent had a dirty house was the subject of a child protection petition in Family Court. But that wouldn't be considered an emergency, and so during the height of the pandemic, those cases just couldn't be heard, and ACS had Social Services get involved with families to help them. And that's actually what we want, right? Folks don't necessarily need to be dragged into court. I say all that to say that I think the biggest lesson learned is that the number of cases filed should decrease in the months and years ahead compared to before the pandemic. Because ACS would have learned — which we also learned representing children — that many, many of those cases, we were able to resolve shortly after they were filed, once we got some information and could negotiate a settlement. And so many of those cases just got settled, because no one wanted these cases to sit. 

HULR: Alright, thank you so much. I know it's past our scheduled time but I'm very grateful that you had the time to meet with me. I found this very insightful and I truly think this is information everyone should know about, and that people should be more educated on, and so I'm grateful to hear your reflections and your thoughts.

DM: Thank you so much.