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Michigan has disparities in legal representation in CPS cases

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Michigan has disparities in legal representation in CPS cases

Michigan’s system that provides legal representation to parents and children in child protective proceedings needs to be reformed and legislators need to create a statewide office to handle appointments, pay and training, according to a task force designed to evaluate how the state is doing in this area .

Michigan Supreme Court Justice Megan Cavanaugh said during a press conference Tuesday that the Child Protective Legal Representation Task Force found there are wide disparities in the state with how much attorneys are paid, how much training they get, resources they have available to them and how active they must be engaged with parents and children.

“Michigan’s current system of providing legal representation to parents and children in child protective proceedings provided vastly different levels of legal support to the parties in these proceedings, depending upon where you were in the state, and that was obviously resulting in inequitable treatment,” Cavanaugh said. “Strong legal representation not only protects fundamental rights and prevents unnecessary family separation, but it can also be a critical part in improving outcomes in the foster care system.”

The state’s current system allows for each county to operate independently to establish attorney contracts, wages and requirements, which has led to some counties struggling to maintain a roster of attorneys willing to take on child protective cases, and means some parents and children are getting unfair treatment, according to the task force’s report, which was released Tuesday. The task force recommended the legislature establish a statewide parent and child legal representation office that would create:

  • Minimum standards for attorneys representing parents and children
  • Compensation standards
  • Caseload chaps
  • Minimum training standards
  • An attorney application and appointment process
  • Access to expert witnesses and support for parent attorneys and guardian ad litems for the children
  • Continuous review of attorney performance to be eligible to remain on the appointment list.

Task force member Vivek Sankaran, a University of Michigan law professor and director of UM’s Child Advocacy Law Clinic, said establishing a statewide office is an important first step to address this crisis.

“The system of disparity needs to stop. We cannot afford anymore to do nothing. Families are struggling, kids are staying in foster care for too long,” Sankaran said. “We’re trying to strike a critical balance between protecting kids and keeping them safe, but also ensuring that kids aren’t needlessly separated and are returned home quickly when it’s safe to do so. I think what we’ve seen is that that requires the skilled guidance from attorneys who represent both children and parents.”

Sankaran said he routinely gets calls at his clinic from parents who have never spoken to their attorneys.

“Far too many parents and children are forced to navigate this system on their own, without quality legal representation,” he said.

In one county described in the report as a “large, urban county,” attorney rates have not changed since 1985. Attorneys are paid $175 for a trial, and after that they get $100 per hearing, according to the report. This means they would barely be making minimum wage, given the work it takes to represent a parent or child in these types of cases, according to the report.

Low pay has led to attorneys being unwilling to take these kinds of cases, according to the report, because they can make more money handling criminal cases, due to state standards imposed by the Michigan Indigent Defense Commission.

Calhoun County Circuit Court Judge Tina Yost Johnson said the legal system can be a scary place, and a good attorney can make a big difference.

“Justice is achieved when families and their children are properly prepared for their day in court,” Yost Johnson said. “Good legal advice can make the difference between having your children removed or having your children returned.”

When asked about where money for a statewide legal representation office for parents and children, State Rep. Stephanie Young, D-Detroit, said “we fund what’s important.”

“We fund those things that are necessary in the community, and keeping families together and keeping children safe is at the top of the list,” Young said. “When we’re dealing with our children, we will find a way to fund it.”

The issue with parent and child legal representation first became an issue in 2007 when the State Court Administrative Office and the American Bar Association found in a study that Michigan was failing families in its legal representation system, Cavanaugh and Michigan Supreme Court Justice Kyra Harris Bolden wrote .

The study determined a statewide system was needed, but more than 15 years later, little has changed.

“The hope is that this report will result in the long-overdue creation of a statewide system of legal representation in the child protective system that transforms how the state meets the legal needs of its most vulnerable,” Bolden and Cavanaugh wrote. “Our families cannot afford to wait any longer.”

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