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A report released Tuesday calls for a major reform in how Michigan provides legal representation to parents and children in child protective proceedings.
The report from the Child Protective Legal Representation Task Force recommended that lawmakers establish a statewide parent and child legal representation office, as a replacement for the current system in which each of Michigan’s 83 counties operates independently in establishing attorney contracts, wages and requirements.
The report concluded that the current structure results in differing levels of legal support to parents and children in child protective proceedings, and ultimately inequitable treatment based on what county their cases are handled in. It also found that some Michigan counties struggle to maintain an active roster of attorneys willing to take on child protective cases.
“Unfortunately, the reality is that courts across Michigan have been struggling for years to obtain and maintain court appointed attorneys for this important work,” said Justice Megan Cavanagh during a Zoom briefing with reporters.
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Cavanagh, who co-founded the task force with fellow justice, Kyra Harris Bolden, said that low funding, competition from other private and publicly-funded legal systems, and the complex nature of child protective proceedings were among the main reasons for that struggle.
“Not having enough attorneys to represent children and parents in these proceedings is a situation that should just not be happening in our state,” she said.
The report was the result of input solicited from parents, children, and the legal community during a public listening tour held around the state last year, including in-person sessions in Detroit, Cadillac and the Upper Peninsula, as well as virtual sessions including in Berrien and Kent counties. In addition, the Task Force studied the experiences of other states, as well as models being used in Michigan to represent individuals in different legal settings.
Bolden said the input they received made it plain that the current system is not conducive to proper representation.
“I was really struck by some of the startling data we compiled. For instance, over 50% of youths surveyed indicated that their lawyer-guardian ad litem (L-GALs) did not meet with them outside of the court,” she said.
“Forty percent of parents reported that their attorney did not meet with them outside of court hearings, or they did not feel they were able to talk to their attorneys when issues came up. And 50% of parents expressed a belief that their attorney did not effectively advocate for them in court.”
Bolden, a Democratic-nominated justice, is seeking election to a four year term on the Michigan Supreme Court against Republican-nominated Branch County Circuit Court Judge Patrick William O’Grady.
To address the issues of inequity in representation across counties, the Task Force recommended that the Michigan Legislature establish a statewide parent and child legal representation office, along with regional offices, that would be tasked with, among other things:
Establishing minimum standards for attorneys representing parents and children in child
Protective proceedings
Establishing attorney compensation standards
Establishing caseload caps
Establishing minimum attorney training standards
Creating an attorney application and appointment process
Providing access to expert witnesses and other supports for parent attorneys and L-GALs
Appointing parent attorneys and L-GALs in child protective proceedings
Facilitating payment of parent attorneys and L-GALs for their services
Continuous review of attorney performance for eligibility to remain on appointment list.
Additionally, the task force recommended:
All counties work with the Michigan Department of Health and Human Services (MDHHS) to determine how to access the federal funding available to enhance legal representation in their county.
Trial courts require court-appointed L-GALs to submit a verified statement of services before each hearing.
The State Court Administrative Office (SCAO) modify its child protective court forms to ensure that trial courts obtain the wishes of children when, and as required, by law.
SCAO continue to provide trainings to judges and attorneys on the importance and impact of hearing directly from youths, and about different ways of engaging youths in court.
MDHHS explore using federal funds to create a summer program to place law students in legal, judicial, or other offices that focus on child protective law.
Also on the Zoom briefing was state Sen. Sam Singh (D-East Lansing), chair of the Senate Oversight Committee, who said that with the report completed, they can begin conversations on how to fund the proposed state office, whether through state and/or local resources, and then bring it forward to legislative leaders on both sides of the aisle with the hope of working with the appropriate committees in next year’s session.
“We’ll start the drafting process fairly quickly, working with the fiscal agencies about the fiscal impact of the creation of this office,” he said, adding that an example already exists for this kind of reform.
“I think in Michigan, we actually have a road map from others that have sort of come before us — the Michigan Indigent Defense Commission, as well as the Michigan State Appellate Defender Office,” said Singh. “Those processes have come before us, which the Legislature provided for the development of these offices.”
When asked if they anticipated any pushback at the county level to the creation of a statewide representational system for child protective proceedings, Professor Vivek Sankaran, a task force member and director of the Child Advocacy Law Clinic and Child Welfare Appellate Clinic at the University of Michigan Law School, said he expected the opposite.
“I don’t expect resistance from counties at all. In fact, what we heard throughout the work of our task force is the opposite, that counties are really struggling right now to find high quality lawyers to even do the work,” he said. “County administrator after administrator has sort of shared with us that they cannot find people to handle both trial court appointments and appellate appointments in this field. So I anticipate that they’ll welcome the assistance.”
Cavanagh said their main goal is making sure that participants in child protective proceedings are receiving the best representation possible, and this effort is not about starting from scratch, but instead utilizing what works best.
“Some counties do some things really well, and we want to balance the need for sort of a statewide system that can give the support and compensation and training and set standards without hopefully losing some of those benefits that individual counties have done for what works in their community, which may not work in another community. We don’t want the sort of one size fits all that cuts out some of those things that actually work well,” she said.
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