Lake County is among three Indiana counties being sued in federal court for not providing attorneys to kids in child welfare cases.
More than 30 states require that youths in the child welfare system be given legal representation, yet Indiana is not one of them. The suit, filed in the Southern District of Indiana, claims this contradicts the U.S. Constitution's equal protection clause.
"Where someone's going to live, who their family's going to be, where they're going to go to school — the kids are at the total mercy of the court," said Steve Keane, a San Diego attorney with Morrison & Foerster, a law firm representing the plaintiffs.
"Other states have recognized that kids need an attorney in those circumstances: to navigate those options and the proceedings and advocate for what the kid wants."
Tony Overholt, an attorney hired to represent Lake County in the case, declined to comment because the litigation is pending.
Indiana has among the highest rates of child abuse and neglect cases in the nation, a 2018 report found, and puts kids into the foster system at more than twice the national average. The state has nearly 17,000 foster kids.
Another of the plaintiffs' attorneys, Robert Fellmeth, executive director of the Children's Advocacy Institute at University of San Diego School of Law, said he hopes the case sets a national precedent and believes it will eventually go all the way to the U.S. Supreme Court.
He said that if these kids get legal counsel, the state will save money by putting fewer children in expensive group homes, where outcomes are worse than family settings.
"It's a win-win-win to do this, and Indiana has not done it," he said.
The Lake County plaintiffs are three sisters — ages 8, 7 and 3 — who in 2015 were found living in a car with their drug-addicted parents; the older girls had signs of physical abuse, while the younger one, then 2 months old, was born with opioids in her system, according to the lawsuit.
They were placed with a foster parent, the complaint states. In subsequent visits with their biological mom and dad, the kids were exposed to drug use and neglect, such as not being put in car seats or given seat belts when riding in cars; instead they sat on their parents' laps.
In 2016, the biological mother and father disappeared, according to the lawsuit. This had a "traumatic effect" on the girls, with the middle child in particular exhibiting "destructive behavior," including "throwing and hitting things."
According to the complaint, one of the older girls' teachers wanted to adopt them, getting the proper training and buying beds and car seats for them, but the Department of Child Services caseworker wouldn't allow them to meet with her. The teacher eventually contacted a DCS supervisor, who facilitated a "successful" visit.
Then, the lawsuit states, the children's grandmother indicated she wanted to adopt them, calling them during therapy sessions and coming from another state to visit them. But she stalled the adoption and eventually stopped answering calls. Witnessing the "trauma" the girls were going through, the foster parent and her husband offered to adopt the kids.
At one point, the suit claims, the oldest girl asked her DCS case manager, “Do I get a say in where I end up?” — and the case manager said no.
A spokeswoman for DCS said the agency is not commenting on the pending litigation.
Lake and the other two counties — Marion and Scott — provide children with legal representation in fewer than 10 percent of these cases, the lawsuit claims.
"Parents are given an attorney if they can't afford one. DCS has an attorney. Everyone but the subject of the proceedings — the kids — has an attorney," Keane said. "We don't think that's fair. We don't think that's consistent with the Constitution."