Opinion: Albany has the money to provide families with quality legal representation

In this year’s budget, New York can take a crucial and long-overdue step in ensuring the integrity of thousands of families without spending one penny from the general fund. 

Sounds too good to be true? It’s not. 

Our state has a special Indigent Legal Services Fund that is dedicated to improving the quality of legal representation provided to low-income adults in criminal and Family Court matters. It’s funded by a portion of Office of Court Administration revenue, so it’s completely separate from the ongoing discussions going on now in Albany around spending for mass transit, public education and health care. 

Why is this so important? 

Imagine having to appear in court to defend your right to be a parent – a scenario that plays out every day in Family Court, with stakes that couldn’t be higher for parents who face the removal of their child from their home. 

In 1972, New York’s highest court recognized the enormity of these stakes, holding that the parent-child relationship “involves too fundamental an interest and right to be relinquished to the State” without a parent having legal representation. Not long after, New York codified the right to counsel for parents in Family Court proceedings to ensure that effective legal representation was provided, regardless of the parents’ income. 

In the decades since, New York’s county-based, publicly-funded system of providing legal representation for low-income parents in Family Court proceedings has devolved into a crisis, in dire need of State fiscal support. 

In 2019, the Unified Court System’s Commission on Parental Legal Representation concluded that the system was woefully under-funded, resulting in Family Court attorneys unable to competently represent their low-income parent clients because of crushing workloads, inadequate training, and limited resources. The Commission called upon the State to invest the funding needed to transform this system. 

When Family Court attorneys cannot competently represent parents, children suffer, often being needlessly taken from their homes and placed in foster care, where, according to research, they endure trauma and long-term negative outcomes. The research also shows that our child welfare system has a disparate impact on Black and Brown families, meaning that Black and Brown children face a higher likelihood of being torn from their families because their parents are not receiving competent legal representation. 

While the situation is bleak, it’s not irreparable. New York’s system of providing mandated representation for low-income criminal defendants was similarly broken for decades, culminating in the Hurrell-Harring vs. the State of New York lawsuit in 2007. As a result of settling the Hurrell-Harring lawsuit and legislation extending the settlement’s reforms statewide, New York is committing almost $280 million annually to improving the quality of legally mandated criminal defense. And it’s working. 

According to the New York State Office of Indigent Legal Services (ILS), attorney caseloads in criminal matters are decreasing and attorneys are using the quality-improvement resources now available because of the State’s fiscal investment in improved quality criminal court representation. 

Meanwhile, New York has only made a fraction of the needed fiscal commitment for representation of parents in Family Court matters – just 1.6% of the total State funding for constitutionally required representation in criminal and Family Court matters. 

Family Court attorney caseloads are increasing and are currently about 72% higher than criminal court attorneys. This produces delays in Family Court proceedings with judges making life-altering decisions about families without accurate and complete information. It also puts New York State at risk of facing years of litigation similar to the Hurrell-Harring lawsuit for its failure to live-up to its constitutional obligation to provide competent counsel to low-income parents in Family Court matters.

According to ILS, an investment of $28 million this year would be a modest, but meaningful step toward reducing the crushing caseloads of parents’ attorneys and providing parents with resources like social workers and parent advocates.

Since last year, the Indigent Legal Services Fund balance has grown by over $150 million, so there are sufficient funds to pay for appropriate parental representation.

With the funding for this investment already in place, we just need the political will to tap the Indigent Legal Services Fund to improve the lives of underserved families across the state.

In her recent executive budget proposal, the governor called for spending just $4.5 million on parental representation – the same sum as last year. That’s not enough.

In our own budget proposal, the state Senate proposed appropriating an additional $10 million for parental representation, for a total of $14.5 million this year.

It’s past time for New York to heed the call for increased State funding for parental representation. Doing so is a matter of fundamental fairness and racial justice. It’s also a vital step to maintaining the integrity and well-being of all families in New York. 

Low-income parents desperately need lawyers in Family Court. We have the money. What’s Albany waiting for?