“‘If you cannot afford an attorney, one will be appointed for you.’ Unless you’re losing your children, or your home, or your healthcare . . . .”
– National Coalition for a Civil Right to Counsel
In dealing with issues of parental representation, states must contend with the United States Supreme Court’s decision in Lassiter v. Department of Social Services of Durham County, North Carolina. The Court, using the factors established in Mathews v. Eldridge, held that there is no constitutional right to counsel for parents in child protection cases. This decision has led states to develop varying statutory schemes for parental representation in child protection cases. Differences in statutes by state lead to differences in outcomes for parents and children across the nation. While there are many factors that contribute to differing outcomes in legal disputes, research indicates that states providing representation to all parents in child protection proceedings leads to better outcomes for both parents and children within their state.
Arguably, Minnesota has one of the more challenging child protection systems for parents to navigate. Emergency Protective Care (EPC) hearings are not appealable by right in Minnesota, and the state currently does not mandate counsel for parents who, while not indigent, may not be able to employ counsel of their own. A first step to improving Minnesota’s child protection system is to re-evaluate section 260C.163 of the Minnesota Statutes, which does not afford parents representation as a matter of right. Over the course of a child protection proceeding, parents are at risk of the state severing their court-recognized fundamental liberty interest in the care and custody of their children. Children likewise enjoy a corresponding liberty interest in being raised by their parents. Both fundamental liberty interests are placed at unnecessary risk when parents are unrepresented in a child protection matter. Attorneys representing parents have a crucial impact on protecting these fundamental liberty interests. To fully protect the recognized rights of parents and children in Minnesota, attorneys should be appointed as a matter of right before children are removed from the home. If the state of Minnesota is unable to assign representation to parents at or before an EPC hearing to protect its citizens’ fundamental liberty interests, EPC hearings should be made appealable by right to help alleviate the risk of erroneous removals.
This Article outlines the groundwork laid by Lassiter v. Department of Social Services, in which the Supreme Court held that counsel is not constitutionally required in matters of civil litigation. It next examines the state of parental representation in Minnesota and the fundamental shift in parental representation that occurred in 2008 amidst budget shortfalls, the effects of which are felt in the state’s representation scheme today. This Article then explains what an EPC hearing is and why it is integral that Minnesota parents’ be able to appeal decisions made during this hearing if they are not assigned counsel before such hearing. Next, this Article argues that section 260C.163 of the Minnesota Statutes is unhelpful and provides no guidance for judicial discretion when determining whether parents receive legal representation, in light of the involved fundamental liberty interests of the state’s parents and children.
This Article posits that to best serve Minnesota’s families, representation must be appointed before children are at risk of being erroneously removed from their parents. Even when removed from the home, children are more likely to be reunified with their parents if parents are assigned counsel. This Article also offers that parent representation could ultimately save the state capital, following the findings of other states that mandate representation. In conclusion, this Article argues that Minnesota families deserve better than the state’s current system of justice by geography, and that families in Minnesota do not deserve to wait for the changes in Minnesota’s child protection system to access equal opportunities for justice.
At the time of publication, the change to section 260C.163 of the Minnesota Statutes advocated for within this Article is currently under legislative consideration. These changes are imperative to increase access to justice for Minnesota’s families.