State argues more lawyers not needed in CHINS, TPR cases

Marilyn Odendahl for www.theindianalawyer.com

In response to a lawsuit seeking to require the state appoint attorneys to represent children in termination of parental rights or children in need of services proceedings, Indiana is arguing that adding more lawyers would only flatter the legal professionals and not mollify tragic circumstances.

The California-based Children’s Advocacy Institute is asserting that Hoosier children are being denied their constitutional rights to due process and equal protection because Indiana is not enlisting attorneys to represent them in CHINS and TPR proceedings. Assisted by the law firm of Morrison Foerster LLP and Indianapolis attorney Kathleen DeLaney of DeLaney & DeLaney LLC, the institute filed the complaint in February in the U.S. District Court for the Southern District of Indiana.

Since the lawsuit was filed, Lake, Marion and Scott counties have been voluntarily dismissed as defendants; however, Judges Marsha Owen Howser and Jason Mount of Scott Superior Court, judges Marilyn Moores and Mark Jones of Marion Superior Court, and Judge Thomas Stefaniak, Jr., of Lake Superior Court, along with Terry Stigdon, director of the Indiana Department of Child Services, all remain as defendants.

Also, the case has been transferred from the district court’s Evansville division to its Indianapolis division. It is now captioned Nicole K. and Roman S. by next friend Linda R.; et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services in her official capacity, et al., 1:16-cv-01521.

In its motion to dismiss, Indiana counters the Constitution does not mandate the appointment of attorneys in these kinds of cases. Rather, the Constitution gives states flexibility, which Indiana exercises by allowing judges to use their discretion when determining if the child needs legal representation.

“While the assertion that adding attorneys to every TPR and CHINS case will fix the societal harms detailed by the plaintiffs may be flattering to an attorney’s sense of self-worth, it is not an assertion that imposes a constitutional remedy,” Indiana argues.

The state maintains the children are not alone in the CHINS and TPR cases. A child’s best interests are not only being represented by the state but also by the court-appointed guardian ad litem and/or the court appointed special advocate.

“The plaintiffs provide, in their Amended Complaint, examples of children who have been involved in TPR and CHINS proceedings. But the circumstances, as tragic as they may be, are not remedied simply by the appointment of legal counsel in lieu of the GAL, CASA or the DCS social workers assigned to the cases,” Indiana argued. “… There is no assurance that these harms, which can be a common and devastating part of some children’s lives, could be fixed by simply adding more attorneys.”

As to the plaintiffs’ contention the state is violating the 14^th Amendment, Indiana says the law being challenged, Indiana Code section 31-32-4-2(b), does not run afoul of either the Due Process or Equal Protection clauses. Specifically, the state argues the children do not have to be represented by an attorney because they are not in danger of losing their personal liberty.

“Indiana Code (section) 31-32-4-2(b) allows the judge in the courtroom, the officer hearing the evidence who has an up-close perspective of the situation, to make a decision, instead of requiring the blanket appointment of thousands of attorneys, something that would result in enormous cost increases or delays to CHINS and TPR proceedings where time and efficiency may be of paramount importance,” the state says.