Advocates Demand Lawyers for Children in Foster System

EVANSVILLE, Ind. (CN) – A national children’s advocacy group filed a federal lawsuit Wednesday claiming three Indiana counties are violating children’s rights to due process and equal protection by denying them legal representation during foster care proceedings.

The 31-page complaint filed in Evansville federal court claims Marion, Lake and Scott counties violate the rights of children in foster care proceedings by only appointing legal counsel in less than 10 percent of cases.

“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,” the filing states. “Such an omission is fundamentally unfair and contrary to the due process and equal protection clauses of the Fourteenth Amendment.”

The lawsuit – brought by attorneys with the Children’s Advocacy Institute, Indianapolis-based Delaney & Delaney and California firm Morrison & Foerster on behalf of 10 named foster children – seeks class certification for over 5,000 children and an injunction that would require the appointment of a lawyer for children during proceedings that place them in foster care or terminate a parent’s rights.

While parents in such proceedings are given legal counsel, the children are often left unrepresented because the appointment of a lawyer for them is at the discretion of a judge.

The complaint argues that without legal counsel, the children’s views and wishes are not properly weighed or considered, which can be particularly problematic in cases of abuses or neglect.

Children are currently given a court-appointed special advocate to protect their interests, but the lawsuit claims that is insufficient because they are not allowed to provide legal advice.

“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 complaint states. “Simply put, children in dependency proceedings who are not represented by counsel are placed at an unacceptably high risk of being erroneously deprived of their rights.”

The lawsuit says the named minor plaintiffs’ stories illustrate the problems with the courts and the foster care system.

Two foster children listed as Nicole K. and Roman S. are half-siblings who live with a foster parent in Marion County. Neither was given an attorney after being removed from their biological mother’s custody at a very young age, according to the complaint.

Lacking legal help, the pair was “shuttled to foster home after foster home,” resulting in them living in nearly 20 different homes before the age of 3, the lawsuit states.

Three sisters identified as Abigail R., Lily R. and Rachel H. were neglected by their drug-abusing parents and have been living in uncertainty through various adoption efforts, according to the complaint.

“Neither Abigail, Lily, nor Rachel have been appointed an attorney and, as a result, they have had no information about their legal rights, no legal counsel, no voice in the adjudication of where or with whom they live,” the complaint states. “Abigail has asked her case manager ‘do I get a say in where I end up?’ The case manager responded that Abigail does not get a say.”

The child advocacy group claims this instability has caused some children to suffer from behavioral and developmental problems, which could have been avoided had they had strong legal representation.

According to the lawsuit, 30 other states require the appointment of counsel for children in child welfare proceedings.

Steve Keane of Morrison & Foerster said in a statement, “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.”

Attorneys for the counties did not immediately respond Thursday to requests for comment.

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