In addition to ongoing public policy and public awareness initiatives, First Star advocates for the rights of America's foster children through carefully targeted litigation. Usually taking the form of amicus curiae briefs, First Star's legal projects seek out specific cases involving children in which the court's decision may have a much broader impact on foster youth nationwide.

State of Florida, et al v. United States Department of Health and Human Services, et al, No. 11-400, In the Supreme Court of the United States.

A diverse coalition of 79 groups, including First Star, argues that the U.S. Supreme Court challenge to the Affordable Care Act's expansion of Medicaid eligibility jeopardizes a whole host of other federal-state programs and antidiscrimination protections that hinge on the U.S. Constitution's "Spending Clause." 

A. Petitioners argue that the Affordable Care Act's Medicaid expansion unconstitutionally coerces state choices.  South Dakota v. Dole, 483 U.S. 203, 211 (1987).  Petitioners' arguments prove far too much and are consistent with this Court's precedents and basic federalism principles.  The large amount of money the federal government offers the states under Medicaid cannot make the conditions attached to that program unconstitutionally coercive.  To hold that it did would render the Medicaid Act - even before the Affordable Care Act's amendments - unconstitutional, and it would put at constitutional risk an array of federal education, child welfare, and other statutes enacted pursuant to the Spending Clause.  B. That "the Medicaid funds used to induce the States come from their own taxpayers" is of no constitutional moment.  C. That Congress has imposed new purely, prospective conditions on the acceptance of Medicaid funds does not make the conditions coercive.  D. That members of Congress may have expected all states to continue to participate in Medicaid does not bespeak coercion.

E.T. v. Cantil-Sakauye, No. 10-15248

In Re Termination of DR and AR, No. 84132-2

First Star has participated as an amicus curiae in a case involving the question of whether, under the United States and Washington Constitutions a child has the right to be represented by an attorney in cases involving termination of the rights of the child's parent. In this case, two children had been denied the right to counsel by the trial court in a case in which the state sought to terminate their mother's status as their parent. On appeal, the State of Washington admitted that it was an error for the trial court not to appoint counsel for the children, and asked the appeal court to remand the case back to the trial court so that a new termination trial could proceed with counsel appointed for the children – the appeal court agreed. An appeal was also taken to the Supreme Court of the State of Washington to present the broader question of whether children in a parental rights termination proceeding have a constitutional right to counsel. 

On February 1, 2011, the Supreme Court of Washington issued an "Order Dismissing Review." The Supreme Court determined that the case should be dismissed because review was "improvidently granted." The basis for the Supreme Court's dismissal rests on the fact that there was no aggrieved party in this case because the children will have received counsel for their retrial, and the more abstract question of whether all children facing termination of their parents’ rights have a right to counsel does not need to be decided.

First Star has followed this case, and participated in an amicus curiae brief, in order to address the important question of the extent of a child's right to counsel in Washington State. In the 2009 Second Edition of First Star's Report Card on a Child's Right to Counsel, Washington received a grade of D for its statute governing the appointment of attorneys for children.   In Washington State, as of 2010, a child has the right to request counsel only after reaching the age of 12 years and only if the court agrees. First Star is disappointed that this case did not address broader issues, and therefore did not expand the right to counsel beyond those children directly involved in this case. The Washington Legislature has acknowledged that there are widely inconsistent practices among the counties in Washington, resulting in few children being notified of their right to request legal counsel in dependency and termination proceedings. First Star will continue to work with all parties in Washington State to extend the right to counsel to children in all cases involving critical rights.

In Re Termination of M.S.R. and T.S.R., No. 85729-6

 First Star has continued working on this issue by presenting another amicus curiae brief to the State of Washington on September 16, 2011, along with six other children’s advocacy organizations and two law professors.  The two children in this case were again refused counsel in a Washington trial court during a hearing that sought to terminate their biological mother’s status as their parent.  As mentioned above, Washington statutes only require that judges may provide children legal representation under certain circumstances.  The brief relied heavily on research and statistics from First Star’s National Report Card in advocating that children have the right to counsel during all termination of parental rights (TPR) hearings.

Sam v. Carcieri, 608 F.3d 77 (1st Cir. 2010).

On June 18, 2010, the First Circuit of the U.S. Court of Appeals reversed and remanded a U.S. District Court for the District of Rhode Island decision, allowing Next Friends to represent the named Plaintiffs. In Sam v. Carcieri, the District Court dismissed a complaint alleging that the state of Rhode Island’s child welfare and foster care systems had deprived plaintiffs of their rights under the U.S. Constitution and multiple federal statutes. The District Court decision determined that the family court-appointed guardians ad litem were the children’s duly appointed representatives and that the Next Friends had failed to show a significant relationship with the children.

First Star joined twelve other amici in support of the Plaintiffs to show that the District Court’s decision was at odds with child welfare law and the importance of a child’s attorney in dependency proceedings. The Court of Appeals reversed the decision, finding that a guardian ad litem cannot be considered a child’s general guardian outside family proceedings. Additionally, the court determined that because “foster children lack significant ties with their parents and have been placed under the state’s legal custody and guardianship, a significant relationship need not be required as a prerequisite to Next Friend status.” Instead, a minor plaintiff may have access to federal courts if the Next Friend “has a good faith belief that she can adequately represent the child.” The Court of Appeals found that each of the Next Friends in the class action met this standard and reinstated the complaint. To view a copy of the decision, please click here.

Perez-Olano et al. v. Gonzalez, Case No. CV 05-03604

In January 2008, the U.S. District Court of Central California considered an amicus curiae brief filed by Columbia University Law School's Child Advocacy and Immigration Clinic on behalf of First Star and the Children's Advocacy Institute. The Court declared that immigrant children seeking protection from abuse and neglect should not be barred from access to state courts. The case centered around immigrant minors in the U.S. who were eligible for an immigration benefit known as Special Immigrant Juvenile Status (SIJS), but who were unable to access the benefit due to various procedural and regulatory roadblocks. First Star’s brief supported access to the state courts to help protect the children against harm. The brief argued that the federal government had superseded its authority by depriving state juvenile and family courts of their traditional role when it came to the needs of immigrant youth. The brief also asserted that the federal regulations went beyond the scope of the Special Immigrant Juvenile Statute, creating additional and unnecessary limitations and barriers to these vulnerable children seeking protection and justice.

U.S. District Judge Pregerson’s decision in favor of the plaintiffs held that the Immigration Customs and Enforcement (ICE) may not curtail the rights of immigrant children unless the state court's decision would alter the physical or legal custody of the child. In the same decision, however, he determined that the regulations did not contradict the statute and found that agencies do have the authority to determine eligibility criteria. To view a copy of the decision, please click here. To view a copy of First Star’s press release, please click here.

In the Matter of J.G., No. 06-752

In June 2006, First Star and Sullivan & Worcester LLP were granted leave to file an amicus curiae brief on behalf of a 16-year-old foster youth, John G. The brief requested that the North Carolina Court of Appeals order the Guilford County Department of Social Services (DSS) to apply John's Social Security benefits to his monthly mortgage and to the costs of repairs on a house that John inherited. In December 2005, the District Court ordered DSS to make the monthly mortgage payments, but DSS had chosen instead to let the house hover near foreclosure by redirecting John's money into the agency's own accounts - and had appealed the District Court's decision to the North Carolina Court of Appeals. First Star recognizes the widespread negative consequences of a decision in favor of DSS, and in filing the brief, First Star sought to facilitate the Court's understanding of the broad legal effects of its decision on America's most vulnerable children.  

However, on November 5, 2007, the Court handed down its decision in favor of John and his advocates, representing a major court victory for foster children nationwide. The Court of Appeals rejected the state’s arguments and said that “nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law.”  The Court’s decision also stated that DSS’s “interpretation of [the federal statute] takes the statute out of context and is an improper attempt to fashion a shield into a sword to be used against the intended beneficiary of the law….”.

“This case underscores the importance of having legal representation for foster children while they are in the system to protect their interests, rights and property,” First Star Executive Director Amy Harfeld said in a press release. “Children who are represented by well-trained, client directed attorneys in dependency hearings receive the best care and have a much stronger chance for success in the short and long term."
In January 2008, the North Carolina Court denied a state appeal request, and in June 2008 the U.S. Supreme Court denied a petition for certiorari. The John G. case will now set precedent for other, similar cases involving foster children in North Carolina and across the United States.