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Ind. Failing Kids Through Lack Of Attys In Family Court: Suit

By Emma Cueto | February 10, 2019, 8:02 PM EST

For children, there are few things that can have a greater impact on their lives than dependency proceedings that decide where they will live and with whom. But according to a new lawsuit, kids in Indiana are going through that process without a common protection — having attorneys.

That's the situation of Alexa, a 5-year-old who has spent almost three years living with her four siblings in the care of relatives, including the family member that now wants to adopt the kids. But the state of Indiana is allegedly angling to have Alexa instead transition to live with the biological father she barely knows.

According to the suit, which is brought in Indiana federal court by 10 children, including Alexa and her siblings, the fact that Alexa and kids like her aren't guaranteed attorneys to represent their wishes in dependency cases is a violation of their legal rights.

"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 complaint said.

Although the state allows judges to appoint such attorneys, the complaint alleges that in practice, this is almost never done, leaving children without legal representatives in proceedings that have the potential to impact the rest of their lives.

According to a report by the Children's Advocacy Institute at the University of San Diego, most states, and the District of Columbia, do require that children in dependency hearings have attorneys. But those 30 states don't include Indiana. It's also one of 10 states that the institute grades as an "F" in its evaluation of how states deal with representation for abused and neglected children.

The lawsuit singles out three counties: Marion County, home to the state capital Indianapolis, and two other southern Indiana counties: Lake County and Scott County. However, Stephen Keane, an Morrison & Foerster LLP attorney representing the children, said that the problem is prevalent across the state.

"Kids are at the complete mercy of the courts," he said.

Indiana typically does have someone looking out for children — according to both Keane and the state's own reports, there is a high rate of children being represented by either a guardian ad litem, or GAL, or a court-appointed special advocate, or CASA — but these representatives are not a substitute for an attorney, Keane argued.

"I don't want to bash CASAs," he said. "They do great work ... but they have a very different role from attorneys."

CASAs, he explained, can't file certain types of motions, step over certain lines when cross-examining witnesses, or file appeals on behalf of children. If they do, he said, they run the risk of crossing into unauthorized practice of law.

And their job isn't necessarily to represent the child's wishes, he added. Instead, they are appointed to advocate for what they determine to be in a child's best interests. It's a system that Keane said can be very "paternalistic."

Without attorneys, he said, children don't have much ability to make their wishes known, especially if what they want for themselves differs from the opinion of the CASA or GAL representing them.

"You can't expect a kid to function in that situation in terms of knowing what to do, in terms of knowing how to express his or her wishes," Keane said.

Even a well-adjusted child would struggle with navigating the courts, he added, noting that many children in dependency hearings have been abused or gone through other trauma and can often have the behavioral and emotional problems that naturally result.

It's a situation that the lawsuit alleges violates children's rights under the 14th Amendment, which ensures due process and equal protection under the law. It is asking the federal court to declare the current system unconstitutional and prevent the courts from failing to appoint counsel in the future.

Keane acknowledges that appointing counsel would be expensive for the state, but noted that the federal government recently changed its policies in a way that would allow for partial reimbursement of that expense. And counties already appoint counsel for parents in danger of losing parental rights, he added.

"A child's ability to protect his or her rights and ensure a fair proceeding cannot be denied just based on cost," he said. "The kids have a right to be heard."

Court and government representatives in Indiana declined to comment or could not be reached for comment on the suit.

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--Editing by Katherine Rautenberg.