Lawsuit Seeks Constitutional Right to Counsel for Kids in Three Indiana Counties

Birch Bayh Federal Building and Courthouse in Indianapolis, Indiana.

In a lawsuit that could theoretically set a precedent for legal guarantees in child welfare proceedings, a team of lawyers wants to force three Indiana counties to provide lawyers to all youth involved with the child welfare system.

The class action complaint follows a recent decision by the federal Department of Health and Human Services (HHS) to permit federal child welfare funds to be used to provide legal counsel to parents and children involved in the child welfare system.

The attorneys have filed the complaint against Marion, Lake and Scott counties in the U.S. District Court for the Southern District of Indiana. The lawsuit argues that by not guaranteeing attorneys to children in dependency court, the counties are violating the kids’ constitutional rights to due process and equal protection.

“Without an attorney, a child in a dependency proceeding risks losing his or her liberty interests, as other parties present evidence, offer witnesses and make decisions about the child’s future that the child is not permitted to discredit, challenge or even address,” said the complaint, which was filed today. “Such an omission is fundamentally unfair and contrary to the due process and equal protection clauses of the Fourteenth Amendment.”

Current state law in Indiana places the appointment of counsel to a child in the hands of the courts – they decide whether a lawyer is necessary for a child at any point in a proceeding, from early decisions about possible foster care entry to the termination of parental rights.

According to the lawsuit, in these three counties, “such appointment is almost never made.”

The counties might appoint a guardian ad litem (GAL) or court-appointed special advocate (CASA), the lawsuit notes. But while either can serve a “valuable role” in the process, they are “never an acceptable substitute for a licensed attorney.”

“In Indiana, as in most states, it is not the role of the GAL/CASA to protect the legal rights of the child, nor are they trained to do so,” the complaint said.

The discretion afforded to counties – and these three counties alleged reluctance to ever use it – is at the heart of the legal challenge.

“There are no written criteria for when counties are appointing counsel for kids,” said Stephen Keane, one of the four attorneys representing the plaintiffs. “They call it as they see it. And parents of these kids are appointed counsel in these cases, but the kids are not.”

There are 10 children named as plaintiffs in the complaint, but lawyers are seeking to receive class certification to represent thousands of children involved in dependency court in the three counties.

Indiana is far from the only state that does not guarantee lawyers for children. Five other states leave the decision up to courts, according to the National Coalition for a Civil Right to Counsel. Another 14 states have statutes that limit the right or access to lawyers in some way.

“Categorical” means a guaranteed right to indigent defense to those who qualify. “Conditional” means it is at the judge’s discretion. “Limited” means access is restrained through specific statutes or because of ambiguity in case law. Source: National Coalition for a Civil Right to Counsel.

The plaintiffs’ assertions also run up against the current federal provisions on right to counsel, which endorse CASAs as an alternative to legal counsel. The Child Abuse Prevention and Treatment Act (CAPTA) states that “in every case involving a victim of child abuse or neglect which results in a judicial proceeding,” someone should be appointed to represent the child.

That person, per CAPTA provisions, “may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both).”

Asked about precedent for the plaintiffs’ claims in case law, Keane noted that inadequate access to counsel was one of the issues in the Kenny A. class-action lawsuit brought by Children’s Rights in 2002. The organization sued Georgia over certain allegations, but brought a specific “right-to-counsel” action against Dekalb and Fulton counties.

A judge did not ultimately decide that case. The counties moved for summary judgment in an attempt to stop the case from going to trial, and Judge Martin Shoob rejected the request.

“The Court finds that children have fundamental liberty interests at stake in deprivation and TPR proceedings,” Shoob  wrote. “These include a child’s interest in his or her own safety, health, and well-being, as well as an interest in maintaining the integrity of the family unit and in having a relationship with his or her biological parents.”

Children’s Rights reached a settlement with both counties in 2006.

An actual judgment in this case could be the first federal court acknowledgment of a constitutional right to counsel for children. The U.S. Supreme Court affirmed a youth’s right to counsel in criminal proceedings more than 50 years ago in the 1963 In re Gault decision.

The Indiana lawsuit was initiated a few months after a policy reversal by the U.S. Department of Health and Human Services made federal funds available for counsel to children and parents. States can now seek a 50 percent match for legal fees to both parties through Title IV-E, the entitlement program that funds a share of child welfare services. Before December, HHS policy restricted the use of Title IV-E funds for counsel to the attorneys that represented child welfare agencies.

Legal advocates for children and parents believe the policy change, and the funds it makes available, could help states like Indiana afford to expand access to lawyers for these critical proceedings.

The lawsuit was brought by Keane and Mark Zebrowski of Morrison & Foerster; Kathleen DeLaney of DeLaney & DeLaney; and Robert Fellmeth, director of the San Diego-based Children’s Advocacy Institute.

Note: This article was updated on February 7.

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John Kelly is editor-in-chief of The Chronicle of Social Change.