Justice in Jeopardy - Family Values at Issue in OPD Legislation
By John Cary
Washington statutes declare the family to be a fundamental resource of our society. Except when a child’s basic nurture, safety or health is in jeopardy, the state goes to great lengths to keep the family together. Indeed, the family is so important that when fundamental decisions on child-parent relations come before a court--removing a child from the home because of abuse or neglect or terminating parents’ custody rights, parents are entitled to court-appointed counsel if they cannot afford to pay for counsel.
Originally a county responsibility, the state assumed the prosecution of dependency and termination cases in 1977. The cost of representing indigent parents, however, remained a county responsibility.
Problems in Parent Representation Programs
Complaints of excessive caseloads, inadequate pay, and poor quality representation led the state Office of Public Defense (OPD) in 1998 to survey parent representation programs. (I must note that the quality of programs varies greatly among the counties. Some do well; others do not).
Perhaps the central conclusion from OPD’s study is that the state puts a great deal more into prosecuting cases than counties put into defending them--an average of $1,138 for prosecution but only $398 for defense.
In addition to the imbalance between prosecution and defense resources, OPD found specific causes of inadequate representation: inadequate compensation; excessive caseloads; and absence of support staff.
Compensation is $40 an hour in Pierce, Spokane and Lincoln counties, $35 in Mason County, $33 in King County (for conflict cases not handled by the non-profit defender organizations), and flat fees of $648 and $400 per case Kitsap and Kittitas Counties.
Some attorneys spent an average of only nine hours per year on a case. In these counties, attorneys first met and talked with their clients on the day of the proceeding in the courtroom. (For comparison, in King County where case loads are a more reasonable 85 cases, attorneys spent an average of 25 hours per year per case.)
Assistant attorneys general were supported by 1,300 social workers and other state personnel and were able to draw on a dedicated fund of $325,000 for expert witnesses. Defense attorneys, in contrast, rarely had any support staff or experts.
Excessive caseloads result in over-committed and over-scheduled attorneys. Defense attorney problems create problems for everyone. For example, continuances have become a way of life. A state study in March 2004 found an average of 2.7 continuances per dependency case. Continuances extended the time children spent in foster care by 32 days and imposed $772 in extra foster care costs on the state.
Short-of-time attorneys do not take time to explain to their clients what is expected of them or to direct them to state services to help correct parenting deficiencies. Short-of-time attorneys do not talk with the other side to negotiate agreed orders and to narrow issues or to work out schedules. The entire process becomes less efficient and less effective.
Our justice system depends on a rough balance between the lawyers on each side of a case. This balance does not exist in dependency and termination cases. Defense is at a decided disadvantage.
Successes in OPD Pilot Programs
Responding to OPD’s survey, the legislature directed it to find a way to correct the problems. OPD undertook two pilot programs--one in the combined counties of Benton-Franklin and the other in Pierce County. Working with the courts, assistant attorney generals, defense attorneys, and DSHS personnel, OPD served as a catalyst for systematic improvements that resulted in earlier fact-finding hearings, mandatory case conferences, mediation, earlier determination of issues, and an improved parenting plan process.
The key to these improvements was state funding for reasonable caseloads and reasonable compensation for defense attorneys. The pilot programs gave defense attorneys the time and resources necessary to participate in measures that improved the system for everyone.
The pilot programs required three outside evaluations of their results. The evaluations showed significant results: Substantially increased rate of family reunification (up 60 percent in the first evaluation period when the trend for the rest of the state was a decrease of 26 percent); improved use of parenting services; a higher rate of visitation (the principal indicator of successful parent-child relationships); systematic improvements in the process; and, quicker resolution of cases. Judges reported that higher quality evidence and representation gave them information needed to make better decisions.
The pilot programs brought continuances under control and, along with other case management techniques, brought cases to earlier decision. Both the judicial and child welfare systems saw significant savings from timely decisions but, more importantly, children were taken out of temporary arrangements and settled into permanent situations more quickly.
Extend OPD Parent Representation Program to Rest of State
OPD has proposed that the legislature extend the pilot programs, which now serve about 10 percent of the state, to the rest of the state in a series of measured steps. The cost would be $3.3 million for fiscal year 2006 and $10.3 million for fiscal year 2007. A scaled-up program would operate in the same manner as the pilot programs--by means of contracts with local programs. OPD would not create its own staff of attorneys to represent parents.
OPD estimates that dependency cases will require the equivalent of 98 attorneys, each carrying about 80 cases a year. OPD proposes to pay about $75 an hour to cover attorney salaries, rent, overhead, secretarial, social worker and paralegal support. This rate is about equivalent to the hourly rate in the Attorney General’s office in 1998.
In its pilot programs, OPD found that an infrastructure of training, back-up and advice, supervision, and performance monitoring was essential to achieving quality representation. OPD proposes to employ eight in-house attorneys to create a statewide infrastructure in which local programs would operate.
A Tale of Two Pictures
The headlines of my columns include the tagline Justice in Jeopardy to remind you that there is a $204 million over-all shortfall in justice funding--$54 million for trial courts, $132 million for indigent defense, $18 million for civil legal aid.
Justice funding, however, is more than numbers, more than budget categories, more than accounting exercises. OPD’s Parental Representation Program is another example of a justice funding program that directly impacts people and bedrock values--children and families.
OPD’s pilot programs are interesting because their several evaluations have produced quantitative evidence that confirms what lawyers intuitively grasp. Our legal system works wonders when it is given adequate resources.
When the topic of justice funding comes up, I hope that it will not be a picture of dollar signs that springs to your mind but rather two pictures--one of children and parents and the other of attorneys working on opposite sides of the case but with the same object of helping the children and their parents again become a fundamental resource of our society.
John Cary is KCBA president. He can be reached at caryj@att.net.
