Beginning next year, low-income parents accused of abuse and neglect in Minnesota will be entitled to court-appointed attorneys at all stages of child protection proceedings — including appeals. But without a central office, the state lacks a consistent process to connect parents across its 87 counties with lawyers to represent them in the higher courts.
A bill this legislative session is working to remedy that.
Introduced by Rep. Jamie Becker-Finn (DFL) in the House of Representatives, the proposed legislation aims to establish an office of appellate counsel to make well-trained and qualified attorneys accessible to parents whose children have been taken into the child welfare system and who wish to appeal final orders of the district courts.
“The right to appeal is critical for ensuring due process for families involved in child protection cases,” Brooke Beskau Warg, an attorney and fellow at the Institute to Transform Child Protection at the Mitchell Hamline School of Law in St. Paul testified at a bill hearing today. “However, that right is meaningless without available, accessible and qualified attorneys.”
The stakes could not be higher in these cases. If they are unable to convince the courts they are fit to parent, custody rights can be severed for life — terminations known as “the civil death penalty.”
“There can be very few legal matters more serious than ending the relationship between parent and child,” said Nadia Seeratan, deputy director of the American Bar Association’s Center on Children and the Law. “A significant difference is whether parents are represented or not, so it’s incredibly valuable to have an attorney that is supporting them.”
The bill is part of a larger effort in the state to ensure that parents’ due process rights are protected. Minnesota is among a handful of states that has not guaranteed court-appointed legal counsel to low-income parents in child welfare cases.
But that will change in January when a statute granting all parents the right to counsel “at all stages of the proceedings” goes into effect. In Minnesota, state law already allows a child 10 or older to request a court-appointed attorney.
Appellate attorneys listen to parents’ perspectives about what may have been misconstrued in their cases and help them address wrongs that may have occurred at the trial stage, said Seeratan, who has provided training nationwide to attorneys handling appeals.
When a parent’s rights are terminated, appealing the case is “their only hope,” said October Allen, a parent mentor who has worked with hundreds of families fighting child protection cases.
During her six years supporting parents at Minnesota One-Stop for Communities, Allen said she hasn’t encountered any who have pursued their cases on appeal. Already beaten down by losing their kids and any number of other life obstacles, they lack not only the resources but the emotional strength to keep fighting in court.
“The follow-through is often not there because there’s just so much despair and hopelessness,” Allen said.
And, without an attorney, it’s rare for a decision to be reversed, said Beskau Warg, who conducted research for Becker-Finn’s bill.
Minnesota court rules call for appointing trial court attorneys as appellate counsel “when possible.”
But legal experts say because the appellate and district court processes differ, it’s important to have attorneys who are knowledgeable in appeals and have the bandwidth to ensure cases are fully investigated.
In Minnesota, child protection appeals must be filed within 20 days of a court order to be considered. Otherwise, the Court of Appeals must dismiss them.
Without consistent policies, delays in appointing counsel push attorneys to operate on an even tighter timeline, family law attorney Mallory Stoll said in her testimony at today’s hearing.
That late appointment, Stoll added, “significantly reduces” what issues attorneys can raise on appeal.
It’s also unclear whether parents are aware of their right to appeal in every case.
And after a devastating trial court decision, it can be difficult for parents to process every piece of information thrown at them, including information about the timeline to appeal.
“Wading through the final court order from the judges is so traumatic that they often just put it away in a drawer and they don’t have the skill or maybe the understanding of the court documents to know what to do next,” Allen said.
According to an analysis by the institute at the Mitchell Hamline School of Law, the vast majority of child protection appeals in Minnesota involve termination of parental rights — a phenomenon that overwhelmingly impacts families of color, especially American Indian and Black families, who are more likely to have their rights terminated.
Creating a framework to ensure greater access to appellate counsel could mitigate these permanent family disruptions that have lasting impacts in children, families and historically marginalized communities.
“We’re hoping that if we have the ability to appeal these cases,” Beskau Warg said, “that we end up with outcomes that would directly have an impact on those racial disparities.”