Suit seeks to require counsel for kids in CHINS cases

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Dave Stafford for www.theindianalawyer.com

A national child advocacy organization filed a lawsuit Wednesday in federal court in Indianapolis asserting that Indiana is violating the rights of abused and neglected children by failing to provide them legal counsel in children in need of services and termination of parental rights hearings.

The 31-page complaint seeks to certify a class of more than 5,000 children, as well as declaratory and injunctive relief requiring appointment of attorneys to represent children in CHINS proceedings and TPR cases. Such appointments are currently discretionary, according to the complaint, which illustrates problems that have arisen in cases where counsel was not appointed.

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 cases, the suit says, unrepresented children in CHINS cases were shuttled between more than 20 foster homes before age 3 or deprived of adoptive parents because they had no voice in the process.

The suit claims the failure to routinely appoint counsel to children in Indiana CHINS and TPR cases violates their rights to due process and equal protection under the 14th Amendment. The complaint also says that although Indiana allows the children in CHINS and TPR proceedings to be appointed legal counsel, the appointment is not mandatory as it is in more than 30 states.

“It is unlikely that a child who has been placed in dependency proceedings by the government will know that he or she has a right to be heard unless that right is explained to the child by an attorney,” the complaint says. “Even when a child knows his or her rights, without an attorney, the child is likely to give up and remain silent if his or her wishes are downplayed or disregarded at any point in the proceedings.”

The suit is brought by the Children’s Advocacy Institute, a nonprofit operated by the University of San Diego School of Law, the San Francisco-based law firm of Morrison Foerster LLP and local counsel Kathleen DeLaney of DeLaney & DeLaney LLC in Indianapoli

DeLaney said in a statement that “systemic reform is needed to remedy the profound problems facing Indiana foster children” and that “fixing a glaring problem inside the courtroom, by providing legal representation to foster kids, is an obvious first step.”

Morrison & Foerster lawyer Steve Keane said “every child in dependency proceedings needs a voice and a way to protect his or her legal rights before his or her fate is adjudicated – that is a basic due process right protected by the constitution.”

Spokespeople did not immediately reply to a message seeking comment from the Indiana Attorney General’s Office, which would represent named defendants Lake, Marion and Scott counties in this litigation.

Indiana courts often appoint guardians ad litem or court-appointed special advocates to represent the interests of children in CHINS and TPR proceedings, but the suit says this isn’t enough. “Empirical studies have shown that children who are not represented by counsel are routinely erroneously deprived of their most fundamental protected interests, even when they have an appointed GAL or CASA,” the complaint says.

The lawsuit is filed in Southern Indiana District Court just as the Indiana General Assembly is considering numerous child-welfare reform bills and as Indiana appellate courts have shown growing frustration with the denial of rights to stakeholders in CHINS and TPR cases.

“The absolute discretion that Indiana trial courts currently have in appointing counsel for children results in inconsistent, unpredictable outcomes that leave children with no voice and no one to advocate for their legal rights,” the complaint says. “It is no wonder that the Indiana Court of Appeals recently stated that ‘there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state. This is a disturbing trend given the fundamental rights at issue in these types of cases,’” the complaint says, citing A.A. v. Ind. Dep’t of Child Servs., 100 N.E.3d 708, 709 (Ind. Ct. App. 2018). “The court further stated that ‘[g]iven the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children.’”

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