Judge says lack of CHIPS defenders became a 'crisis'

Wadena County District Court Judge Sally Ireland Robertson informed commissioners that she would have to appoint attorneys at $75 an hour to cover a child in need of protective services case because no suitable attorneys would take the case at the $500 per case county fee.

"Our situation is kind of a crisis right now," Robertson said last Thursday.

She had to hold two hearings this week without representation for two unmarried parents who had three children removed from the home, she said.

"Right now I'm violating their rights by holding any hearings without those parents having attorneys," she said.

The court can't go forward in the case without attorneys and will start violating federal time lines for these hearings, she said.

The county became responsible for providing defense attorneys for CHIPS and termination of parental rights cases in July after the State of Minnesota Board of Public Defense announced it would no longer cover these cases due to budget cuts. Commissioners approved set fees ranging from $500 to $3,000 in August upon the recommendation of County Attorney Kyra Ladd.

Ladd interprets these fees to be applied per family, while Attorney Harry Taves submitted a bill for $500 per child, according to Court Administrator Bev Mickelson.

When Taves found out he was only going to be paid $500 rather than $1,500 for a very difficult case dealing with three children, who were all in separate placements when the case started, he decided he could not afford to do it, Robertson said.

There never was a per child fee in the contract unless the mother had more than one child with a different father and multiple fathers need attorneys, according to an e-mail Ladd sent Auditor Char West.

Ryan Ries, who also serves as a defense attorney in CHIPS and TPR cases, also declined to do the case with the same reasons as Taves, Robertson said. The court asked other attorneys and they said no, giving reasons such as lack of experience in CHIPS defense and the cost of the case.

Commissioners need to clarify what the fee should be applied to, Mickelson said. They need to know if per case means per family or per child.

The court used to assign case numbers for each child involved in CHIPS cases until Jan. 1, she said. Her current computer system allows her to save space by creating one file where she can still track each individual child and when they are removed from the home.

"But it's still three children," Mickelson said. "The state counts it as three, but I just put it into one file for storage and money saving purposes."

Whether it is right, wrong or indifferent the two attorneys who know how to do these cases say they cannot afford to do them, Robertson said. Typically, $500 will pay for five hours of attorney time. With complicated CHIPS cases it can take five hours just to read the reports associated with the case, she said. That doesn't include in-court time.

Stating her own on the opinion on the subject, Robertson said $500 is not enough to represent parents in these cases, she said.

"If your children were removed from your care would you think that the attorney should get, basically, paid for doing five to eight hours of work on the case including court appearances?" she asked commissioners. "I don't think so."

Another issue at play is the complexity of the cases that are going to court, Robertson said.

Social services said they were going to work on reducing the number of cases filed in the court system and they have, Robertson said.

"The number of cases has gone way down, but the ones that we're getting are very complex," she said.

Social services has been using procedures such as family group decision making and signs of safety protocols to create more safety in families without having to file CHIPS petitions, said Jane Erckenbrack, social services supervisor.

These methods were used in the case in question, but were not successful, according to Erckenbrack.

"These are situations where we have tried nonadversarial more cooperative kinds of interventions to increase safety for children but have not been able to do that," she said.

If the court doesn't appoint an attorney to represent the parents, the children will have to be sent back to their homes, Robertson said. And social services has determined that the families are not providing a safe environment for the children.

Auditor Char West said commissioners had two options. They could either pay the county's fee of $75 per hour for court appointed attorneys or pay $500 per child, which would equal 20 hours at $75 an hour.

The county board decided to stick with the already in-place $75 per hour fee. Commissioners want to hear Ladd's recommendations before making any changes to the set fee policy, they said. Ladd was on the agenda for the CHIPS attorney payment plan discussion but was unable to attend that afternoon.