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Among public defenders, cases rise but funding lags

May 16, 2018

Public defenders around Indiana say they need a life preserver made of money to stay afloat in the flood of child in need of services cases that has deluged state courts in recent years.

The Indiana Department of Child Services, they point out, now gets an annual appropriation of just under $1 billion which, they maintain, has been a major cause of the rise in cases. More case workers and case managers have been hired, and these employees have been filing more and more petitions for Children In Need of Services and Termination of Parental Rights. Many cases are subsequently getting tossed by the courts.

As mandated by statute, public defenders have to represent the indigent parents but have not been given anywhere near the boost in funding DCS received. Defenders are being overwhelmed with the caseloads, and some counties that do receive money from the state are in danger of losing that funding.

Complicating the imbalance in funding, public defenders say, is the opioid and heroin epidemic as well as the high turnover rate of employees at DCS. The families need multiple services at a time when their cases are getting switched from one new case worker to the next.

“It’s a mess,” said John Gay, president of the Jennings County Public Defender Board.

Currently, 58 county public defender offices get partial reimbursement from the state for their work, according to the commission’s 2016-2017 Annual Report. They must adhere to the caseload standards established by the Indiana Public Defender Commission to stay in compliance and receive a reimbursement of 40 cents for every dollar they spend on CHINS or TPR cases.

In fiscal year 2016-2017, the commission authorized a reimbursement of more than $23 million for all noncapital cases, including CHINS and TPR, according to the annual report. The amount appropriated to the counties has risen steadily each year by at least $1 million since before the Great Recession.

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Yet Larry Landis, executive director of the Indiana Public Defender Council, said reimbursement has not only been outpaced by the explosion of CHINS cases, but the counties must front 100 percent of the costs for public defender work, then get less than half reimbursed by the state. He advocates for the CHINS and TPR work to be shifted to the state instead of being placed on the local public defenders.

The Public Defender Commission recognized the headache the CHINS cases were causing and in 2014 increased the number of cases a county public defender could handle. But Derrick Mason, staff attorney at the commission, said more counties have been falling out of compliance in recent quarters and more attorney caseloads are approaching maximum capacity.

Jennings County has struggled to maintain compliance since it joined the state reimbursement program about 20 years ago, Gay said. His community has 10 part-time public defenders, but the upturn in CHINS and TPR cases has only added to the strife.

He believes rather than dropping out of the state program, his county should fund a public defender agency, staffed with three or four full-time attorneys. However, it all comes back to money.

“The state has a Rainy Day Fund of $1 billion while the counties are living paycheck-to-paycheck,” Gay said.

‘It’s a nightmare’

Statewide, new CHINS filings have jumped 43.6 percent and new TPR filings skyrocketed 54.1 percent from 2012 to 2017. According to provisional data from the Indiana Supreme Court, new CHINS filings last year reached 20,068 while the termination of parental rights category posted 4,844 new filings.

Within Marion County, new CHINS filings rose 44.8 percent as new TRP cases climbed 60 percent from 2012 to 2017. Chief public defender Robert Hill is adamant the primary cause of the increase is a combination of the opioid crisis and DCS hiring more case workers and case managers.

“It’s a nightmare,” Hill said.

Jan Berg, chief of the Marion County Public Defender Agency’s TPR/CHINS Division, said half of the CHINS cases that get filed either get an informal adjustment or are dismissed.

Termination petitions are being filed even when the plan is still for reunifying the family or the children are already having unsupervised visits with the parents. The situation, she said, is being fueled by the juvenile court’s push to get permanency for the children as soon as possible.

However, new CHINS filings in 2017 dropped by 270 from 2016. Berg attributed the slip to a new diversion program offered by the court as an alternative to filing a petition. Families whose children are not in danger but got involved with DCS because the parents used marijuana or had a dirty house are referred to a facilitator to try to work through their problems.

Hill advocates for more services and fewer filings. Parents should be given treatment, counseling and other resources they need rather than having DCS rush to court with a CHINS petition, he said. Instead, there is now a “glut of CHINS” cases, and public defender offices have no money to represent the parents.

Lauren Harrell, who worked as a staff attorney at DCS for about 14 months, pointed out that the work at DCS is difficult because children’s needs have to be balanced against parental rights. The consequences for making the wrong decision can be severe, she said.

Even so, Harrell agreed with the sentiment of many public defenders that DCS was filing cases that either should not have been filed or were filed too quickly. Her experience was that attorneys had little discretion and there were not a lot of conversations about whether something should be filed. Sometimes the urgency was dictated by court deadlines that required a petition to be filed within 48 hours after a child has been removed from a home.

Harrell handled two CHINS dockets and spent much of her time in court. The trial work was invaluable and she found her DCS colleagues, as well as the public defenders, to be good, dedicated attorneys.

“I never felt I took a case to trial that wasn’t worthy of being filed,” she said. “I don’t know that every other DCS attorney felt that same way.”

‘We’re broke’

Vanderburgh County chief public defender Stephen Owens was notified in mid-May that his agency is out of compliance with the commission’s standards. The four part-time attorneys in the CHINS division are handling too many cases.

The solution would be to hire eight additional part-time attorneys or staff the division with six full-time lawyers. But the salaries alone would inflate the public defender’s budget another $400,000, while the expense of the extra office space, equipment and secretary needed would still not be covered.

Already the county is paying about $1.8 million to fund the public defender agency. Of that, Owens estimated, $800,000 to $900,000 comes from the state’s reimbursement.

More money is needed but the county coffers are low, he explained. Adding to the fiscal woes, the local jail must find upwards of $45 million for an expansion to house the influx of low-level offenders who are now serving their sentences in county lockup rather than being sent to the Indiana Department of Correction.

Speaking of the county’s finances, Owens was succinct.

“We’re broke,” he said.

Driving the compliance problem is the volume of CHINS filings, Owens said. The agency is getting saddled with cases that 15 years ago would not have been filed, he said, and because many of the families have multiple parents — for example, a woman who has children by three different men — all of the adults get a public defender. Three or four attorneys can be assigned to represent different parties in the same case.

To come back into compliance, Owens speculated he could transfer some attorneys in the felony division to the CHINS division, or the county could pull out of the reimbursement program. Either way, he still expects the CHINS attorneys will be “grossly overloaded.”

“The explosion of CHINS and TPR cases has been mind-boggling,” he said.

Suzanne Draper, executive director of Vanderburgh County CASA, hangs on to the belief that parents love their children, but some have made bad choices that were fueled by poverty and substance abuse. As a result, those families are in crisis, she said, and to get in a position where they can care for and provide a stable home for their offspring, sometimes parents need to hit rock bottom.

At 192 volunteers, Draper’s agency has more community members helping the CHINS children than ever before. Still, the nonprofit does scramble to handle the high caseload and serve its current roster of 500 youngsters. Moreover, she said, the CHINS cases in the courts today are more complex, with problems like a very dirty house tangled with substance abuse and domestic violence.

Yet Draper sees CHINS filings as the best option available to help the families. Children get removed from a bad situation and the parents work to better themselves all because of the court’s intervention. Struggling mothers and fathers can forget their youngsters must be a priority, but with the right assistance, they may start remembering.

“I still believe parents do love their kids,” Draper said.•

 

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