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Brian Lehrer: It's The Brian Lehrer Show, on WNYC. Good morning again, everyone. After flatlining for years, funding for legal organizations that represent children in New York Family Court did not escape pandemic-era budget cuts worsening conditions in a court system described as dehumanizing. This characterization of family court as dehumanizing came in October of 2020, from none other than Jeh Johnson.

Remember him? The former Secretary of Homeland Security under President Obama. This came in his capacity as a special advisor on equal justice in the court. Now, conducting an independent review of racism, bias, and disparate treatment of poor indigent litigants, who are mostly people of color, Johnson also highlighted, "A demeaning cattle call culture, a second-class system of justice for people of color in New York State," another direct quote from Jeh Johnson.

Funding cuts for the attorneys who represent these litigants has meant an increase in workloads, caseloads, added stress, compounding the crisis. Many attorneys for children, or AFCs, we're going to use that term in this conversation, AFCs, for attorneys for children, have been forced to resign, and take more lucrative positions that they can get in the law. These attorneys serve such an important role in the court, particularly in cases involving the arrest of children as young as 12.

The situation has reached a boiling point. In an op-ed for city limits, my next guest, Dawne Mitchell from the Legal Aid Society, has written that the message is clear-- Albany has a moral obligation to immediately step in. Many of you are not familiar with this issue. Some of you who are, know what a crisis it is. Dawne Mitchell is chief attorney of the Juvenile Rights Practice at the Legal Aid Society of New York City, and joins me now. Dawne, welcome back to WNYC. I'm so glad you could join us. Hi.

Dawne Mitchell: Thank you, Brian. Thank you for having me.

Brian Lehrer: By way of background, can you start by telling everybody, including people who have had the privilege, in a certain respect, of never having to deal with family court, what family court is, and who the litigants tend to be?

Dawne Mitchell: Sure. The best image I could give for the family court-- It is designed to support, intervene, with families' needs. For attorneys for children, we represent children who are at the center of neglect, abuse, juvenile delinquency cases, terminations, and adoptions, custody matters. Really, they're high volume court houses, families are often in crisis, when they are seeking the support and intervention of the court, of the Family Court. At the center of those important roles are the attorneys for children.

New York State has about, in 2022, over 300,000 cases pending. Attorneys for children were assigned on nearly 200,000 of those cases. That's because the children who have a right to counsel in those matters have a right to have an assigned advocate appear before the court to lift their voices, to bring humanity to the center stage, and to assist families through that process. That's what AFCs do across the state. It's critically important work. It's work that really sometimes shapes the trajectory for a young person, quite frankly.

It's the court of second chances for those young people who find themselves arrested and before a judge, deciding a matter. Those children have the right to counsel, and the right to quality legal representation.

Brian Lehrer: How much is what goes on in family court about juvenile justice, in the respect that you were just alluding to, very young people who are caught up in allegedly criminal acts, and how much is about family disputes, like custody, abuse, and neglect?

Dawne Mitchell: Great question. About 92% of the cases that I mentioned, and I'm talking hundreds of thousands of cases, are about families and communities, and only about less than 10% are children who are brought before the court on juvenile justice matters.

Brian Lehrer: In a case of a custody dispute, let's say, there might be three lawyers in the room, one representing one party, one representing the other party, and somebody from your organization representing the child independently.

Dawne Mitchell: That's right. That's right. The parents have counsel. A very important part of the process is to have all the litigants represented. They sometimes have aligning interests, and sometimes, they have interests that don't align. What we are hoping happens in the Family Court is that families stay together, are supported, are given the opportunity to establish, maintain, and sustain loving, safe homes.

Litigants come into the court, more often than not, just to resolve sometimes some of the most sensitive issues within a family dynamic, but certainly the most important issues for families' integrity, and families safety, and family stability.

Brian Lehrer: Do you want to say more about some of the conditions underlined in that independent review of racism, bias, and disparate treatment, as cited by the former Homeland Security Secretary Jeh Johnson?

Dawne Mitchell: Yes. What I will say is that the majority of children and families that we see in family court are Black and brown families, across the state. That statistic and reality is not very different from many of the high-volume courts that we see across the state and across the nation. Children who are overwhelmingly represented in child welfare, or what we call the family regulation system, children who are disproportionately represented in juvenile justice, all are brought into the family court.

What Jeh Johnson's report really revealed, after talking with several stakeholders, is that the court is under-resourced, and it's overburdened. Just last year, I was talking with you about judicial vacancies, and understaffed courts, and the case backlog. What we're finding is, with this over-representation of Black and brown families, we're finding that the second-class court system is continuing this narrative that these communities don't deserve high, efficient courthouses. They don't deserve excellent quality legal representation.

As long as the court continues to create these variances among the stakeholders, who are there to support the families and the children, we're going to see increasing challenges in maintaining staff in their positions, maintaining their supportive services, the continuum of services. We actually represent a child the moment they enter into the court system, throughout any issue that may come up in their lifetime, which would bring them back. We really do believe in what we call continuity of care, continuity of service.

AFCs across the state really believe this is a value, in terms of the way we support and represent children and families, making sure that we are working against some of those disparate treatments of these systems. We are there to interrupt, we are there to bring to light to the court. When we see that, for example, [unintelligible 00:09:00] are outside the door waiting-- During the pandemic, we talked frequently with court leadership about how best to serve the community that still asked to access the court for support for their families.

What we found is that the lack of pay parity for the attorneys for children, for example, and this higher salary that we see being offered to our government counterparts, really does continue this unfortunate narrative that, for some reason, these litigants that desperately need the intervention and support of the court are going to be treated differently. What we've asked the state to do, in supporting our efforts to increase the funding for AFC offices across the state, is to answer that issue, to address that issue, to further impact that issue.

We represent 90% of these children that are brought before the court. Along with attorneys, we have social workers, investigators, paralegals, and administrative staff that are really the backbone of the practice, because quite frankly, not everything we do to assist in and represent children happens in the courtroom. We have to do that, because the systems outside of the courtroom also impact the Black and brown communities in a disproportionate way.

We are hoping that in asking for $15 million to be added to OCA's budget to support the needs of attorneys for children legal offices across the state, to continue to do this meaningful work, this zealous representation, to really provide the critically needed services for-- Quite frankly, many of our clients are special needs, and have complex living circumstances. We're asking for this support so that we can bring more equity and better able our clients and their families to access justice.

Brian Lehrer: Listeners, anybody want to help us report this story of the crisis in New York Family Court, as attorneys for children, one of whom is our guest, Dawne Mitchell, from the Legal Aid Society, are facing cuts after years of what they say is inadequate funding to begin with, being very overburdened now, and as Dawne's op-ed says, in city limits, forced to look on as Black and Latinx children and families face growing disparities. 212-433-WNYC. Maybe anybody else who works in the system?

Dawne's op-ed references the human infrastructure here. It's also social workers, investigators, paralegals, and other staff that she says make up the backbone of our practice, in the op-ed. Any of you want to call in, any family court judges, or retired family court judges listening right now, and want to give us your perspective from the bench, 212-433-WNYC, 212-433-9692, for Dawne Mitchell. Let's take a phone call right now. We have one coming in, so far. Here's Anne-- Anna, I'm sorry, in Brooklyn. You're on WNYC. Hi, Anna.

Anna: Hi, thanks so much for taking my call. Can you hear me okay?

Brian Lehrer: Sure can.

Anna: Great. I have actually worked in the child welfare system for over 20 years. I'm also a foster and adoptive parent, so I've experienced the court system from multiple angles. Just wanted to echo a lot of what Ms. Mitchell is saying. During COVID-- I have colleagues who work in child welfare systems all over the country, and was hearing from people about-- Oh, it's great. Everyone's gone online, and hearings are actually more efficient. People don't have to wait for hours just to have their hearing canceled.

People can show up because you don't have to deal with travel, and all of that. Meanwhile, in New York, we were sitting here-- We went for, I want to say 10 months, to get a routine hearing that's supposed to happen every six months rescheduled. Both my daughter and her parents went for almost a year and a half without having their legally provided court hearings. I think because of all the canceled hearings, there's been such a backlog that-- I won't go through all the dates, because it's a little dizzying.

It's probably not important to anyone but me, but just to say that even when we had gotten to the point where her parents' rights were terminated and we were moving forward with the adoption, it took almost a year for that to happen. I was told that we were actually lucky because in Brooklyn, there is one part-time, semi-retired judge who does adoptions, who, quite honestly, I think was working one day a week, compared to in other boroughs, where those hearings are just on the regular docket.

People are waiting 6, 9, 12, 24 months to have something scheduled. I can just say, as a parent, the effect on a kid, to have this delay in their life, how do they explain things to their friends? We couldn't travel out of state without getting permission. There were so many small and big ways that it impacted our day-to-day lives. I certainly agree that the lawyers need to be better supported, but we need more judges.

We need more capacity in the family court system, and obviously, the population that it largely serves is not one that has political power, so this isn't an issue that gets on anyone's political radar [unintelligible 00:15:22].

Brian Lehrer: Anna, thank you, and for that heartbreaking story, Dawne, you want to comment?

Dawne Mitchell: Sure. Thank you, Anna, for your call and your comment. I couldn't agree with you more. What I will say is that, believe it or not, the courts didn't close during COVID, but in fact, the vacancies on the bench, and the backlog, was tremendous. The pivoting to hybrid, using tech to have normal court, or the new normal court, was a challenge for the state, and attorneys for children offices had to fight through those changes as well. What occurred, quite frankly, is this growth of our workloads.

We've been talking to OCA about our workloads, because, quite frankly, another thing that our viewers should understand is that the expectation is that attorneys for children carry up to 150 clients. That's quite unreasonable in these days, when we talk about the complexity of issues that we are facing. Our counterparts, attorneys for children, or the government, are carrying 50% less cases. Their cap is somewhere around 55 or 65 cases.

We have been asking not only for additional support so that our staff can actually be able to care for their families with living wages, for example, but also, we're asking for support so that we can lower caseloads, to allow for them to have a sustainable workload and that will bring more fairness, that will bring more dignity, respect, and equity to the courthouse and to the children that we serve. It's so important that those issues not be separated, because this is the harsh reality. I think Anna explained it best, explaining to a child, and that's what we do every day.

What's happening in the courthouse can be a perplexing conversation for a child to hear, and what they want is to be at home with their parents. What they want is to have loving homes supported by the courts. Not being able to get that court date, not being able to get those emergency hearings, not being able to sustain continuity of representation for one child who has a case that lingers through periods of months, and like Anna said, a year, even, it challenges, breaks down, and creates for an unjust system for families.

Brian Lehrer: I'm glad you're drawing attention to it in your op-ed, that we're able to have you on to talk about it, and that we get a caller like Anna, who can put such a human face on it, from a client's perspective. How do you deal, as an attorney for the child, in a case like that? What must be a very difficult question, of when to advocate that it's in the child's interest to terminate the biological parent's parental rights and let the prospective adoptive parent have the child permanently, and when not to.

For you, concerned with racial justice, and justice generally, these things can pull at each other, right? You want the best safest thing for the child and maybe on one level. it's easiest to say, "Okay, let the child go to a new home," if there's been some abuse, or whatever. On the other hand, we know there's bias in the criminal justice system, against parents of color, especially poor people who are parents of color, they're seen a certain way, and maybe it's too easy to terminate their rights.

How do you figure out, being concerned with all of those interests, as an advocate for children in cases like that?

Dawne Mitchell: Another great question, and let me just be clear that in New York State, children have the right to directed representation. What that means is that our clients inform us, our clients share stories about who they love, and what they want to see in their lives. Quite frankly, that makes our work even that much more challenging, because we want to work as hard as we can, with every resource that we have, to support the interest that our clients have indicated to us, that they want to see happen in the case.

Bringing those direct interests to the court, those positions, require us to really look at a family very closely. We're not going in there to talk about what we think is best. We're going in there to a court, to a judge, to all the litigants in the case, to talk about what the child has specifically asked us to represent before that court. When I talk about the complexity of the cases, often, our clients see things really clearly, in black and white. Their resilience is unmatched.

What we do is, we are working with social workers and paralegals, often, to look at every aspect of that child's life, to really examine, help our client, inform our client, counsel our client around all the factors that are impacting them. A client will talk about what they love about school, they will talk about what they love about their home, and they will talk about, sometimes, the dangerous circumstances and the challenges that they experience.

Our work, with the aid of the Family Court Act, quite frankly, is to ensure that when we're bringing these issues to the court, that we are explaining to this court with evidence, and case law, that the child can be safely maintained in their household, or if the client is asking us to pursue an interest that they want to live with a foster parent, or want to be adopted by a relative, that we're pursuing that interest with the support and aid of the law. Reducing the caseloads allows us to do that work in a way that is dynamic and meaningful.

We don't want a system where we're just rubber-stamping what the state says, because we don't have time to do the deep dives that we have to do. Our clients are the best and most ableist representatives, [chuckles] on many of these cases, and we are there to support that. We have incredible, incredible staff, who are giving hours and hours of their time to support their clients. In fact, when we talk about the juvenile justice system, so much of our work is spent on working on solutions. Not the problem, but the solutions.

Allowing the court to see the humanity in these young folks, allowing the court and the family to embrace the needs that our clients have, and allowing the court and their families to support these young people to have second chances. I'm thinking of a young person I read-- One of my attorneys is representing a wonderful young man, who appeared before our court in both the child welfare system and the juvenile justice system. That's not necessarily a unique circumstance.

When we find what we have defined, or call, crossover kids, we know that the level of intensity of our service needs to be even that much greater. Across the state, we have children who are appearing in the court in both the child welfare system and the juvenile justice system. This young man, Amir, comes to mind, because when I read about what his attorney and social worker are doing on his case to ensure that he can complete his education, he can have services of support in his community, so that he can actually have attachments and long sustainable relationships--

It means the world to me to understand that what the court sees is just one slice of the work that we have to do, in order to bring a young person's humanity front and center for the court to embrace those needs, and to ensure that our clients have the services and supports that they so desperately really require. We had asked the state legislature to increase OCA's budget for Attorney for Children Offices across the state by $15 million. I want to just put that in perspective for you listeners.

Brian Lehrer: We've got about a minute left in the segment. In fact, you've gone on to what was going to be my final question anyway, which is-- It's budget season in Albany, is this up to the state legislature right now, to rectify what you've been describing so well in its budget?

Dawne Mitchell: It is. We're asking the state legislature to step in and to provide $15 million to OCA, to support these needs, lowering caseloads, and bringing equity to the court on behalf of our clients. In the perspective that I want your listeners to hear, we're talking about a $230 billion budget, and statistically, we are asking for nearly $0. $15 million is a drop in the bucket, but it will bring equity to the process.

It will allow for our attorney for children offices to actually maintain staff, by creating a salary that is competitive across not only the government sector, but also even the court sector. I looked at salaries just the other day, in the court system, and entering lawyers are making somewhere between $10,000 and $15,000 more than the attorneys in my office, that have worked three years.

It's a concern, because they're leaving this work, this meaningful work, skilled and able to represent children, because they can't provide for their own families. We don't want that to happen. We want to see fair wages for 18B panel attorneys, for example. We want to see fair wages and compensation for attorneys for parents, and we want to see the fair wages and competitive salaries as well, for attorneys for children. That's [unintelligible 00:26:47] system.

Brian Lehrer: [crosstalk] Well, we definitely have, as you probably know, members of the state legislature come on this show here, in budget season. The new budget is supposed to be done by April 1st each year, so they're in high season right now. The next time somebody is on, who is a state legislator, I'm definitely going to ask them about this, and if this is going to get through, and keep it in the spotlight.

Dawne Mitchell, chief attorney of the Juvenile Rights Practice at the Legal Aid Society of New York City. Thank you so much for coming on and shining a spotlight on this.

Dawne Mitchell: Thank you so much for having.

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