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Child protection cases force hard budget decisions

Kevin Mark worries that Minnesota's three-legged stool of justice has become wobbly.

Judges -- check. Prosecutors -- check. Public defenders -- not so much, the First District Court judge said.

The state Board of Public Defense was among several areas targeted for cutbacks this year by lawmakers looking to solve a nearly $1 billion budget deficit.

Mark said the public defenders' leg of the figurative stool was nearly severed in the process, which ultimately stopped the state attorneys from representing parents in Children in Need of Protection Services cases.

"Who are they going to ask for advice?" Mark said of parents in CHIPS cases.

"We're not in a position to do that. The prosecution's not in a position to do that. Who's going to?"

His is one of many questions left without definitive answers.

Since Minnesota statutes don't specify that parents in those cases must be represented by a public defender, the state Board of Public Defense removed that option when faced with a $3.8 million funding deficit.

The prospect presents a paradoxical dilemma for the courts: Though parents are no longer allowed public defenders, they are guaranteed legal counsel.

That creates anxiety in the court system, First District Court Judge Thomas Bibus said.

"Someone has thrown a major wrench in it," he said.

Steve Holmgren, the First District's chief public defender, said the decision to ax parental representation in CHIPS cases came after learning of the funding shortfall. Less money meant having to shrink First District staff by 17 percent.

But Holmgren said the downsizing doubled public defenders' caseloads. And since parental representation wasn't mandated under statute, it fell under the chopping block, Holmgren said.

"It's a difficult situation and unfortunately I don't think it's going to get any better," he said.

The worst part, Holmgren said, is that since CHIPS cases only represented about 6 percent of his staff's work, their caseloads are still twice the national average -- and possibly ripe for more cuts, he said.

@Sub heads:Who pays?

@Normal: While judges stew over legal ramifications forced by the change, Goodhue County officials are concerned about another quandary presented: Who foots the bill?

Invariably, judges will appoint lawyers in CHIPS cases, which, until July 9, meant sending the bill to the state for public defense. Now counties are expected to pick up the tab.

"The state pulls the plug and now all of a sudden we're left fixing the mess," Goodhue County Commissioner Jim Bryant said at a July board meeting. "We're getting used to it because it's been happening a lot, but it's not good because it affects our budget."

Sen. Steve Murphy said he and other lawmakers made the cuts deliberately and knowingly, but not without reservations. It was an "extremely hard decision," which he said pitted education and health care worker funding against judicial budgets.

"There had to be cuts someplace," the Red Wing Democrat said. "Unfortunately, this was one that got picked."

@Sub heads:Searching for a solution

@Normal: Rationale doesn't help Mark or Bibus, however. As judges, they're left with the reality of the situation, which they predict will only lead to more litigation.

The judges are sensitive to county commissioners' concerns -- both met Thursday with County Board members to discuss solutions -- but are also aware of their responsibilities. The Minnesota Supreme Court says judges cannot terminate parental rights without legal representation.

Without public defenders to provide that counsel, Mark said the only option is to appoint private attorneys, who come at a cost.

"We don't want to provide private attorneys and know there's no money to pay them," he said.

A temporary fix discussed Thursday involves reaching contract agreements with local attorneys who would provide services at a discounted fee -- not the $75 an hour the county is currently being billed at.

Meanwhile, Mark said almost all Goodhue County CHIPS cases involving parents will be affected by the change. Experience shows him it's "highly, highly unlikely" that parents in such cases are able to afford private attorneys.

"It's just so rare in a child protection case," Mark said.

Without proper legal representation, interventions that might otherwise help turn a downward family cycle around could evaporate, Mark said. Public defenders handled CHIPS cases thoroughly, updating reports, checking out allegations and case histories.

"That's the difficult, messy legal work that the public defender's office provided up to this point," he said.

Bibus said they predict the change will face challenges through legislative action, appellate courts and the Minnesota Supreme Court.

Without a fix, he worries that the stool will become even less sturdy.

"The ultimate cost will be upon all of society," Bibus said.

R-E staff writer Jen Cullen contributed to this story.