Suit: Kids in CHINS cases need attorneys

Into Indiana’s troubled child welfare system, a California nonprofit has thrown a curveball.

The Children’s Advocacy Institute at the Center for Public Interest Law at the University of San Diego School of Law has filed a lawsuit in federal court seeking to force Indiana to appoint attorneys to represent abused and neglected children in dependency proceedings.

Filed in the Southern Indiana District Court in Indianapolis, the 31-page complaint asserts the state is violating due process and equal protection rights under the 14th Amendment by not providing legal counsel to minors in children in need of services and termination of parental rights cases. As a result, the lawsuit claims, Hoosier youngsters are either not able to tell the court what they want, or their wishes are disregarded.

The suit was filed on behalf of two foster children in Marion County, three in Lake County and five in Scott County, as well as their foster parents. In some instances, according to the filing, unrepresented children in CHINS cases were shuffled between more than 20 foster homes before age 3 or deprived of adoptive parents because they had no voice in the process.

DeLaney

CAI, along with co-counsel law firms of Morrison & Foerster LLP in California and DeLaney & DeLaney LLC in Indianapolis, are representing the plaintiffs pro bono in Nicole K. and Roman S., by next friend Linda R.; et al. v. Marion County, Lake County and Scott County, Indiana, 3:19-cv-00025.

“I think that Indiana has a real problem with this, and it’s a problem that is crying out for a solution,” Kathleen DeLaney of DeLaney & DeLaney said. “I’m hoping to be part of the solution.”

The lawsuit seeks certification of a class of more than 5,000 children. It also seeks declaratory and injunctive relief that would require the appointment of licensed attorneys to represent children in CHINS and TPR proceedings.

The Indiana Department of Child Services declined to comment, as did the Indiana Court Appointed Special Advocate program.

Houchin

But Sen. Erin Houchin said she is supportive of providing counsel to children in dependency proceedings. The Salem Republican noted DCS has an attorney, the parents are represented by attorneys and foster parents can have their own attorneys. Even though Court Appointed Special Advocates and guardians ad litem are working for the best interests of the children, those individuals might not be lawyers.

“I think there may be a place for that because (the children) have constitutional rights as well, and they are often caught up in the system for no other reason than the system is broken,” said Houchin, herself a former DCS family case manager. “So to the extent that they need to be represented in court, that’s a discussion that I would certainly want to explore.”

Failing grade

Under Indiana Code section 31-32-4-2(b), courts can appoint counsel to children in dependency proceedings. However, in preparing for this lawsuit, DeLaney filed a series of public records requests and discovered attorneys are rarely called to represent the youngsters.

Often, Hoosier children in CHINS or TPR hearings have assistance from a CASA volunteer or guardian ad litem but, DeLaney said, neither of these give a voice to the child. Rather, they present to the court what they believe is in the best interest of the youth, which may not align with what the child wants.

The Children’s Advocacy Institute and First Star gave Indiana an F grade in their evaluation of the state’s laws regarding the appointment of legal counsel to children in dependency proceedings. In particular, Indiana was faulted for not mandating that lawyers be appointed and for the uncertainty in the law over whether the attorneys who are appointed must advocate for the express wishes of the children.

Robert Fellmeth, executive director of CAI, said 30 states require attorneys for children in dependency proceedings, but Indiana is resisting.

Fellmeth maintains the hearings in those states are enriched because the children have someone articulating their views to the court. In the last 25 years, he said, he has seen tens of thousands of instances where the child brings to the court’s attention a fact or raises an argument that changes the outcome.

“We’ve seen it work,” Fellmeth said.

As to the cost the state would incur providing attorneys free of charge to the children, Fellmeth emphasized savings will come in the long-term. The cost rises in the short run because of the money needed to pay the attorneys, but in the long run, the process of getting the child in a permanent placement is faster and, therefore, cheaper.

Moreover, states can now draw federal money to support this kind of program. The Children’s Bureau at the Health and Human Services Administration recently reversed its longstanding prohibition against allowing Title IV-E funds to cover legal services. Now, these funds for foster care and adoption assistance can be used to pay for 50 percent of the cost to provide counsel to parents and children.

“If you care about the results and if you care about the person,” Fellmeth said, “you’re going to want to spend a tiny amount of additional money to make sure it’s done right.”

Potential price tag

With many details unknown about how such a program would be implemented, determining the cost to the state of appointing attorneys to children in dependency is difficult, but two estimates place the price tag for Indiana in the tens of millions of dollars.

The Indiana Public Defender Commission, which did the calculations, noted there are several variables that would impact the final cost. For example, would all the children in the proceeding be assigned an attorney, or only children in a particular age group or with particular needs? Would the expense for counsel be offset by savings from potentially having the children return sooner from out-of-home placement or finding permanency?

Still, for its calculations, the commission estimated 29,630 Hoosier children would need representation. This is based on the number of youngsters in CHINS proceedings during fiscal year 2017, as reported by the Annie E. Casey Foundation Kids Count data center.

In the first estimate, the commission equated the cost of representing each child as similar to the cost of assigning a public defender to the parents. Assuming caseload limits and expenses for overhead and staffing would be roughly equal to the representation of the parents, the average cost of providing legal counsel to a single child would be $1,110. Multiplied by the number of CHINS children in 2017, the total would be about $32.9 million.

The other estimate came in lower at $21.2 million. This calculation relied on the recommendations for overhead costs and caseloads as put forth in a 2016 report to the Judicial Council of California. The report looked specifically at funding for court-appointed dependency counsel.

Beyond the cost, Kristi Cundiff, adoptive mother of eight special needs children and CEO of the Indiana Foster and Adoptive Parents Resource and Advocacy Group, is uncertain providing counsel would lead to better outcomes.

Cundiff pointed to the example of foster children whose biological parents are homeless. These youths say living in the family car is fine with them and they can get food from their friends, but they are not being practical. From that, she worries about the dangers of having children make decisions about their lives when they may not have enough of an understanding of the reality of their circumstances.

“Are we going to allow a 14-year-old to make all of their decisions in a court while not really understanding the cause and effect of their decisions?” Cundiff asked. “… And if we let a child make a decision or let an attorney represent them in what’s in the best interest of the child, is that only going to delay permanency for that child?”

Houchin conceded younger children might not be able to adequately say what they want. But teenagers might express themselves well, and giving them attorneys would allow them to have a say, especially in decisions about where they are going to be placed.

As for the cost, Houchin again said that will be a discussion for the Legislature.

“Should we get a mandate (from the court), then we will address it,” she said. “Again, Indiana will have to determine what’s best for Indiana and our children in care and how we support that financially.”

Indiana Lawyer editor Dave Stafford contributed to this report.•