Indiana is violating the constitutional rights of abused and neglected children by failing to provide them with legal representation in dependency proceedings, according to a class action lawsuit filed against three counties – Marion, Lake and Scott – Feb. 7 in the U.S. District Court for the Southern District of Indiana Evansville Division.
Law firm Morrison & Foerster, San Diego, and co-counsel Children’s Advocacy Institute, San Diego, and DeLaney & DeLaney LLC, Indianapolis, represent the plaintiffs, all on a pro bono basis, according to a news release from these entities.
Every year, thousands of children in Indiana are removed from their homes and families due to abuse or neglect. They are put into court proceedings known as Child in Need of Services (CHINS) proceedings, where their fate is determined by a juvenile court. The court decides where they will live, with whom they will live, where they will go to school, whether they will be permanently separated from siblings, etc.
In these proceedings, which are entirely about the child, the government has an attorney and the parents have an attorney paid for by the county if they are unable to afford one. But the child has no attorney, except in very rare cases.
Without an attorney, a child in a CHINS proceeding is at the complete mercy of the system, 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, the news release stated.
The federal lawsuit acknowledged, "The juvenile court may appoint a Guardian Ad Litem (GAL) or Court-Appointed Special Advocate (CASA) for the child at any point in the proceedings. ... While a GAL/CASA can serve a valuable role in a dependency proceeding, a GAL/CASA is never an acceptable substitute for a licensed attorney. The roles of a GAL/CASA and an attorney are not competitive or mutually exclusive; rather, they are complementary, but distinct. 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. Instead, if a GAL/CASA is appointed at all, their statutorily mandated role is to 'represent and protect the best interests of the child.'”
In more than 30 states, it is mandatory to appoint counsel to children in such proceedings. Indiana is behind the rest of the nation. In Indiana, a child facing a month in juvenile detention is appointed an attorney, but an abused child facing 18 years of government-directed foster placements, living among countless strangers in dozens of homes, is not.
This lawsuit seeks certification of a class of more than 5,000 children and seeks declaratory and injunctive relief that would require appointment of licensed attorneys to represent children in CHINS proceedings.
Ten children are named plaintiffs in the 31-page document. Each case was detailed. This is one example: The Indiana Department of Child Services "removed Nicole from her home as an infant because her biological mother was an alcoholic and there were severe issues of domestic violence in the home. Nicole was designated a CHINS in 2013, but was not assigned an attorney to represent her in CHINS proceedings. During the pendency of her CHINS proceedings, Nicole was shuttled to foster home after foster home, living in a total of 20 homes before Linda R. took her into her home at the age of 3. The instability in home life has led to severe behavioral problems for Nicole, and she has been kicked out of day care due to these issues. Nicole has been diagnosed with ADHD, and her teachers have commented that while she is very bright, she is failing emotionally and behaviorally."
According to Morrison & Foerster lawyer Steve Keane, counsel for plaintiffs, “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.”
DeLaney & DeLaney’s Kathleen DeLaney, who is also representing the plaintiffs, stated 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.”
The lawsuit stated, "A 2018 study (by the Indianapolis Business Journal) reported that the national average of children placed in out-of-home state care is 5.5 per 1,000, but in Indiana, the number is roughly 13 children per 1,000. ... Moreover, as of the date of the report, the number of children in foster care in Indiana had doubled since 2012, to a total 16,834 children. With this many children’s lives at stake, it is imperative that Indiana juvenile courts, including those in defendants’ jurisdictions, ensure that CHINS and TPR (termination of parental rights) proceedings are as informed, fair and robust as possible."