Low-income parents are waiting days or even weeks to contest the removal of their children by child protection officials because of a shortage of attorneys available to represent them in Juvenile Court, judges and lawyers say.
State law guarantees families a hearing within 72 hours of the removal of a child, as a critical first check on the power of the state to remove children based on allegations of abuse or neglect.
But court officials say that as the number of abuse cases has increased sharply over the last several years, they cannot find enough lawyers to handle the cases within the required time frame.
As a result, the so-called 72-hour hearings are routinely delayed, sometimes by three to four weeks, depriving parents of their right to argue that their child should be returned to them or placed with a relative, judges and lawyers said. The child, meanwhile, remains in foster care.
“Anytime you have indigent litigants who have a right to a hearing, and lawyers are not available, it’s unjust,” said Carol A. Erskine, the first justice of the Worcester Juvenile Court. “It is critical that lawyers be made available to these parents and children so that the court can provide them with the hearing, which is their constitutional and statutory right.”
Court officials said the delays are part of the fallout from the opioid crisis, which has led to more children being removed from their drug-addicted parents.
The Department of Children and Families has also been placing more children in foster care following a string of tragedies in recent years, including the case of Jeremiah Oliver, a Fitchburg boy who went missing in 2013 while under DCF supervision and was later found dead.
Statewide, the number of petitions filed by DCF to have children removed from their homes jumped by 38 percent, from 2,459 to 3,383, between 2011 and 2015. This year, removals are on track to reach a record high.
“Ultimately, that increase in cases brought by DCF has taxed the entire system, so that we’re beyond capacity,” said Michael Dsida, who oversees the division of the state public defender agency that represents low-income parents and children in removal cases.
Jodi Rich, a lawyer, recalled one recent case in which a father drove from Georgia to Worcester Juvenile Court after his child was removed from the mother’s home. But the child’s case could not be heard that day because no lawyers were available.
“This is the first time I’ve seen cases get continued on a routine basis,” said Rich, who has practiced for 16 years. “It really feels like the whole system is breaking down.”
Mary Ann McGinnis, a Worcester lawyer, said she had a case in March delayed by 12 days.
When the case was finally heard, the court dismissed the allegation that the child, who was younger than 5, had been abused, and returned the child to the parents.
“Those parents were without their child for 12 days,” McGinnis said. “They didn’t have custody. They had to have supervised visits. . . . And after they got to their 72-hour hearing, they won. They got custody back.”
Amy L. Nechtem, chief justice of the Massachusetts Juvenile Court, said the state must recruit and train more lawyers to represent parents and children in removal cases.
“Judges are ready to try these cases when they come in, but we can’t hear them without counsel,” she said. “It’s absolutely a very, very serious problem for us.”
The state currently has 100 public defenders available to represent families who cannot afford their own lawyer.
Another 700 private lawyers have been certified by the Committee for Public Counsel Services to take the cases. But many accept the cases only on a part-time basis, as part of a general law practice, Dsida said.
The private lawyers are also capped at 75 cases each and cannot bill the state for more than 1,800 hours per year, under state law.
Rich said that if the cap on the number of cases were lifted, it could help alleviate the problem.
While 75 cases may sound like a lot for one lawyer to handle, she said, some in her own caseload date back years and are relatively dormant.
“I’m certainly able to handle it, and in a crisis like this, I would take more, and yet I can’t,” she said. “I understand the restriction, but I should be able to manage my own practice.”
But Dsida cautioned against allowing lawyers to handle more than 75 cases.
“My fear with increasing the ceiling is we will end up with a lot of lawyers being persuaded to take more cases than they’re capable of handling, and clients will not get the representation they’re constitutionally entitled to get — both parents and children,” he said.
The pay rate — $50 an hour — also makes it difficult to recruit lawyers willing to handle the emotionally charged cases, lawyers said.
In July, the rate will increase to $55 an hour, the first bump granted by the Legislature in a decade.
To truly reduce the lawyer shortage, Dsida said, DCF should begin taking fewer children into custody.
“Yes, we need more lawyers, and we’re taking the steps we can reasonably take to try to add capacity,” he said. “My hope is that DCF will start providing more services to families in their own homes, and enable some families to stay together.”
Andrea Grossman, a DCF spokeswoman, said the agency removes children only when necessary.
“The department takes its responsibility to keep children safe very seriously and removes children from their homes when there is an immediate safety risk,” she said.
“While the 72-hour hearings and custody are scheduled and determined by the courts, the department believes parents should have timely hearings and adequate representation.”