Parental-rights cases: Who should pay?

If you are a low-income parent and your child is being taken away, you used to be able to get a state public defender to represent you.

Not anymore.

The State Board of Public Defense, battered by a $3.8 million shortfall, has shifted the responsibility to counties to pay for lawyers for poor adults who are losing parental rights or are otherwise involved in cases where children need help, commonly known as CHIPS (Child in Need of Protection or Services) cases.

The counties are expected to pick up this new local tab that could total $9 million to $11 million in 2009, said Jim Mulder, executive director of the Association of Minnesota Counties.

But there's no guarantee that all counties will do so.

"It's basically up to county boards as to whether or not they want to pick up the tab, so to speak, or not have representation for those parents," said Nancy Schouweiler, chair of the Dakota County Board. "As I understand it, there are some counties that are not willing to pick up the tab."

This year, state budget cuts led to the loss of 72 public-defender jobs statewide out of 440. That triggered the decision, as of July 8, to no longer provide public defenders for parents involved in child-protection cases, said John Stuart, the state's top public defender.

Mulder said Minnesota counties will ask the Legislature to change the law next year so that the state would once again pay for indigent adults' public defenders in child-protection cases.

But another multibillion-dollar state budget deficit is likely in the next two years, Stuart noted. "I'm not optimistic that the state is going to find millions and millions of dollars to put into providing lawyers in CHIPS cases."

Stuart said the situation underscores a longstanding need for counties to better screen which CHIPS cases get filed and find out-of-court alternatives, such as mediation, as Olmsted County has pioneered. But he conceded that a few kids could fall through the cracks.

Some counties are mulling whether to file appeals over the issue. Others are paying under protest.

Dakota County has set aside $75,000 to cover the cost of cases for the rest of this year and for 2009. Schouweiler hopes that will be enough.

"The amount has not been approved by the County Board, but we are hoping that it will be approved," said Larry Dease, district court administrator.

Hennepin County is an exception. Because it has so many cases, it's been paying at the start of each year for its public-defender services and now will not face the problem of public defenders withdrawing from CHIPS cases. Other counties, from St. Louis to Rock, are beginning to pay case-by-case. Nobody knows how much that will total for the rest of this year, but Mulder estimates $1 million to $2 million.

Stuart said parents should be represented in child-protection cases, but they do not have the constitutional right to a public defender that's afforded to the kids involved or to indigent defendants in criminal cases. He said his organization, together with the counties, has asked the Legislature for funding since 2002.

"We haven't been able to get any money," Stuart said. "It's unfortunate, and I feel bad that this is causing difficulty in local government, because I know local government is stressed. But we have a certain job to do under the Constitution of representing people who are charged with a crime."

Mulder said the authority should not be vested back to the counties. "There is a constitutional responsibility for the state to fund the court system, and provide an adequate judicial system," he said. "We would argue that the state has not fulfilled its responsibility to fund either the Board of Public Defense or the court system."

A district judge could order a county to pay those costs. A county could appeal that order to the Minnesota Court of Appeals. Mulder said his association would then file a "friend of the court" brief.

They would argue that Minnesota law has two conflicting statutes governing whether the Board of Public Defense should pay, and clarity is needed, Mulder said. Mulder also contends that the Public Defense Board does not have authority to stop funding the positions.

Counties would argue that having a county pay for both the prosecutor and the public defender could create conflicts of interest, Mulder said.

But Stuart said state law is clear: The counties must pay.

Shifting tax burden

"The way we are governing, and the relationship between the state and counties, is not sustainable," Mulder said.

He pointed to cuts in state funding for short-term offenders from $30 a day to less than $10. Yet costs range from $60 to more than $100 a day. That reduction, coupled with cuts in public defenders for CHIPS cases, could boost county property taxes by $10 million to $15 million in 2009, Mulder said.

Counties had once been responsible for all costs in the courts, except judges. In 1993, the state took over paying all court costs, except capital expenditures. The counties gave up monies from the state to do that, Mulder said.

"When the state took over the court system, there was an agreement as to who was supposed to pay for what -- and the public defenders are supposed to be paid for by the state," Schouweiler said.

The counties' association now has a resolution calling for state public defenders for parents in CHIPS cases. And Minnesota Supreme Court Justice Helen Meyer is heading a new task force to figure out how to provide legal representation for parents in CHIPS cases.