A few weeks ago, a retired judge shared with me how he’d reform juvenile court. He remarked, “I’d tell judges they shouldn’t be umpires. They need to do more than call balls and strikes. They need to go out there and help kids.”
I get that sentiment. We all entered this field to help kids and their families. We all want to ease the suffering of those in pain. We all feel the urge to do more. But I disagree with him.
Perhaps what our families need more than anything else are umpires, with juvenile court judges using the law as their strike zone. As a lawyer for children and parents over the last 18 years, I’ve been struck by how little the law factors in at everyday court hearings. Judges don’t demand citations to statutes. Attorneys don’t file motions. As a result, hearings don’t revolve around the governing legal standards.
In fact, throughout my career, I’ve heard judges chide lawyers and parents when they emphasize the law. One frustrated judge said to a colleague, “I see you’re going down the statutory road again.” Another said to a parent, “I know there’s a legal right to ask for more visits. But if I gave it to you, then I’d have to give it to every parent.” A third said, “I know the law says that corporal punishment is allowed. But in my courtroom, this is what we do.”
Emblematic of this, a Michigan survey of judges found that 40 percent of judges refused to enforce the legal requirement that the agency make “reasonable efforts” to reunify a family because they were concerned that the finding would decrease funding for the child.
Judges are often pushed away from strict adherence to child welfare law. They are encouraged to create specialty courts where legal requirements are de-emphasized. They are asked to take on nontraditional roles, like meeting with stakeholders, visiting children in placements, and partnering with agencies to increase resources for kids. They are celebrated for their community involvement, not their legal acumen. While none of these developments are inherently bad, they push jurists away from their primary responsibility – to enforce the law.
If judges saw their primary role as being umpires, it would transform the child welfare system. State and federal statutes provide strong protections from children and their families. But laws are meaningless unless they are enforced.
For example, requiring agencies to make “reasonable efforts” to prevent removal and reunify families would force agencies to provide meaningful services to families. Enforcing statutory standards involving the removal of children would help ensure that children are not needlessly separated from families. For kids in foster care, asking the agencies to demonstrate that children would face a substantial risk of harm if they returned home would force stakeholders to justify why a child must remain in foster care.
Imagine being a hitter in baseball without any direction of where the strike zone is. It would be impossible to predict whether a pitch is a strike. Without that knowledge, it would be challenging to decide whether to swing. Chances are, your batting average would drop.
When judges don’t serve as umpires, this becomes the reality in child welfare. No one knows what the law requires us to work toward. Strictly enforcing laws would provide all stakeholders clear guidance on how to achieve success.
Serving as an umpire doesn’t mean that the judge must remain disinterested in the outcome of the case. In fact, the law demands the opposite. The law forces judges to ensure that children be allowed to live with their families, if at all possible. It insists that even when children enter foster care, they have meaningful relationships with their family. It requires that agencies zealously work toward healing the family so that reunification can occur. Regardless of a judge’s personal beliefs, this is what the law dictates. This is what all judges must work toward.
The role of the umpire isn’t glamorous. Rarely are they celebrated at the end of the game. The players get all the accolades. But without their enforcement of the rules, the entire game breaks down.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.