Since 2008, judges in Minnesota weighing child abuse and neglect cases can choose to appoint attorneys for low-income parents — when the court “feels that such an appointment is appropriate.”
The midwest state has long been among a handful of states nationwide that do not guarantee legal counsel in these high-stakes hearings that can end in a child and parent severed for life.
“Nowhere else in our statutory scheme are judges making decisions based on their feelings,” said Natalie Netzel, education and advocacy director of the Institute to Transform Child Protection at the Mitchell Hamline School of Law in St. Paul.
Beginning next summer, all parents will have the right to an attorney regardless of how the court “feels.” In late June, Minnesota’s governor signed legislation requiring court-appointed lawyers for low-income parents who are facing allegations of child abuse and neglect.
Legal advocates call the bill long overdue, and critical for reducing the likelihood of family separation in communities battling poverty, and related ills of violence, substance abuse and lacking health care.
The legislation introduced by Rep. Jamie Becker-Finn (DFL), a Leech Lake Ojibwe descendant, will be supported by $520,000 each year for two fiscal years. The funds will be distributed to counties that currently do not provide court-appointed counsel “to all parents, guardians, or custodians who qualify.”
The new law lifts Minnesota up from being one of the few states in the country that has not provided all low-income parents accused of child maltreatment with the guarantee of legal counsel, to perhaps being the most generous in its offerings.
According to several national child welfare experts consulted by The Imprint, the language of the new law in Minnesota that describes the new right to counsel as beginning “prior to the first hearing on the petition and at all stages of the proceedings,” is key. That language means that — depending on how they interpret the new law — courts could appoint lawyers not just for every eligible parent, but at the very earliest stages of their child welfare cases, when a family is being investigated by child protection workers but before a petition has been filed.
Martha Raimon, a senior associate at the Washington, D.C.-based Center for the Study of Social Policy said, if the courts interpret the law to mean counsel could be apppinted pre-petition, Minnesota’s law would “go beyond many states.”
Similar laws are fledgling, but growing nationwide, said Mimi Laver, director of legal representation at the American Bar Association’s Center on Children and the Law. While not mandating “pre-petition representation,” Minnesota, New Jersey, Oklahoma, Washington and North Dakota at least make such legal counsel a possibility.
October Allen is among those who spoke before the state Legislature in support of the bill guaranteeing parents attorneys. Allen, 40, has the experience to testify. She said she fought her way out of an abusive relationship and beat back addiction and homelessness to regain custody of two of her four children.
Allen’s trajectory has deep and devastating roots. When she was 12 years old, child protection workers removed her from her home on the Leech Lake Reservation in northern Minnesota. She never returned to her Ojibwe mother’s custody.
Allen is now a mentor with Minnesota One-Stop for Communities, supporting other parents who are fighting child protection cases and the often overwhelming odds they face in court against judges, social workers and county lawyers. She recognizes the fear and trauma she sees in their faces.
But with a lawyer at a parent’s side, there is a fighting chance, she said.
“It is imperative that parents have court-appointed counsel at that first hearing because that is the time that parents really need to know they have support,” Allen said. “They need somebody to help them understand what their role is and what the next steps are.”
Prior to 2008, indigent parents in Minnesota facing accusations of child abuse and neglect had been guaranteed the right to a court-appointed attorney through their local public defender’s office. But a change in the law that year shifted funding responsibility from the state to counties. Larger counties like Hennepin County continued to find ways to offer parent representation to all; less-populated counties did not.
As a result, Minnesota has been one of only seven states that has not guaranteed the right to counsel, Netzel said.
The lack of representation has contributed to devastating impacts on Native American communities like Allen’s, where foster care removal rates are far higher than in any other demographic group in the state. According to the National Council on Juvenile and Family Court’s “disproportionality index,” in 2019, indigenous children in Minnesota were represented in foster care at more than 2.5 times their numbers in the general population.
Joanna Woolman, executive director at the Mitchell Hamline School of Law’s Institute to Transform Child Protection, has been working for the past 10 years to restore the right to representation for all parents. Woolman said one of the biggest obstacles was finding a way for counties to pay for the attorneys.
New funding opportunities opened up in 2018 with the Family First Prevention Services Act, when the federal Children’s Bureau began — for the first time — to allow Title IV-E entitlement funds to be used for legal representation in the foster care courts.
“I’m really thankful that now Minnesota has a right to counsel again, but it’s all about implementation,” said Laver of the bar association. “There are many states around the country that have the right to counsel. The goal, of course, is to have high-quality legal representation.”
A second critical piece of legislation Woolman and other Minnesota advocates fought for also passed this session and takes effect in July 2022. That new law removes some of the criminal convictions that bar Minnesotans from becoming foster parents, mainly low-level misdemeanor offenses such as shoplifting, welfare fraud and some drug charges. The change is crucial for relatives who want to prevent children in their family from entering foster homes with people they’ve never met.
“The problem in Minnesota is that we have such rampant disparities across the board in our criminal justice and our child welfare system,” Woolman said. “Those disparities are really pronounced when you start to think about things like licensing for foster care.”
Woolman and Netzel found support in the Legislature for both bills to help lessen these disparities.
Rep. Becker-Finn, the chief author of the parent representation bill, said in an interview with The Imprint that she witnessed firsthand growing up on a reservation how important it is that parents have a lawyer on their side. That advocacy is crucial, she said, someone who can walk them through the often-overwhelming court process, and help them get their children back from foster care.
Growing up on the reservation, Becker-Finn said she saw people from her community have their parental rights terminated without even knowing they had access to legal counsel.
With the new law, “there’s a good chance that there will be fewer parents that have their rights terminated, maybe prematurely,” she added. “The finality and the permanency of that, I don’t know that every parent is aware when it happens — particularly when you take into account that often when these cases come up it is when a parent is at the worst point of their life, when they're struggling the most.”