Should county attorneys represent DHS in court?

Iowa's county attorneys are at odds with the state Department of Human Services over an obscure proposal to stop the present practice of having county attorneys represent DHS in child welfare cases.

The county attorneys hope the Legislature will pass a law this year providing a legal bypass around a 2007 state supreme court decision requiring them to represent the DHS in court when the agency files to intervene on a child's behalf.

“It's turning out to be a totally untenable position,” Assistant Linn County Attorney Bob Hruska told county supervisors this week.

Hruska asked supervisors to express their support for the legislation. They'll consider his request next week to take an official position.

The county attorneys represent the DHS workers when they file Child In Need of Assistance (CHINA) petitions or file for the termination of parental rights. A CHINA petition sets out specific standards of behavior and supervision a parents must meet to retain custody of their child.

DHS spokesman Roger Munns said the agency opposes the change.

“They do an excellent job of helping us represent the interest of children at risk,” Munns wrote in an email.

But county attorneys say the arrangement interferes with their primary responsibility, to the citizens of the county who elect them. It can also lead to conflicts of interest when a county attorney prosecutes a parent while representing the DHS on behalf of their child.

“You may lose your kid, you may lose your parental rights,” said Lance Heeren, assistant Linn County attorney in the juvenile division. “That's pretty fundamental.”

The DHS' goal to ultimately reunite troubled parents with their children can put the agency afoul of  prosecutors seeking to put the parent in jail, often for behavior endangering their child.

“Their goal is family reunification,” said Heeren. “There's nothing wrong with that, but it's then that you get the county attorney in a bind.”

Current law allows the state Attorney General's staff to represent the DHS when such conflicts arise. Munns said that happens about seven or eight times a year statewide.

“Obviously, most of the time the department's interest are in harmony with county prosecutors,” Munns wrote.

Munns said the change would force the DHS to create its own legal arm. He estimated that cost at $9 million a year, a figure Heeren called “an exageration.”

The proposed new law would put county attorneys in charge of deciding whether to file CHINA petitions or to end a parent's custodial rights. DHS staff would present evidence and recommendations in court, but wouldn't have legal representation.

Munns said that would leave families subject to inconsistent standards on the parts of 99 county attorneys.

“We don't want a child welfare system in which the outcome depends on where you live,” Munns wrote. “Imagine the confusion that would occur if some prosecutors adhered to these decisions but others ignored them or attempted to overturn them.”

Heeren said child-welfare decisions are already subject to interpretation by the judges across the state who hear them.

Attorney General Tom Miller is opposed to the change, his chief of staff Eric Tabor said.

“Our basic position is, things are working pretty darn well right now ,” said Tabor. “The disagreements are pretty darn rare, and we're worried about a whole new way of doing this.”

Legislation making the changes sought by the county attorneys has passed the House Judiciary Committee and is awaiting floor action. It must pass there within about a week to give the Senate time to consider its own version this session.

State Sen. Robb Hogg, a Democrat from Cedar Rapids, sponsored the Senate version, but said “it's not on my must-do list.”

“I thought there was just a flaw in having the county attorneys represent the state DHS,” said Hogg. “There's just something that doesn't match up. Something needs to be fixed with it, but I also think the state of Iowa is going to be able to continue on if we don ‘t get it fixed this year.”