Children enter foster care because they are in danger.
A child’s safety should be the first priority in any child welfare system, shouldn’t it? As a lawyer, I’ve been examining the role the judicial system plays in making sure children remain safe once they have been removed from danger.
But when I look around at what our judicial system is actually doing, it becomes clear that our courts too often favor a parent’s right to autonomy over a child’s right to safety.
I don’t know why I am surprised. To give some legal background, our constitution is a “negative rights” instrument, which means that it obliges our government to not interfere with our lives unless necessary. So a parent’s right to privacy in how she raises her family is legally protected.
A child’s right to safety, however, is a “positive right,” and has a much shallower history of law on its side. When a parent’s right to privacy and non-interference comes into conflict with a child’s right to safety, our child welfare system has a deeply ingrained tendency to favor the parent. The system has stacked the odds in the parents’ favor.
Here’s an example of how that plays out. The National Association of Counsel for Children (NACC) is an organization of lawyers who are involved in foster care (dependency court) legal proceedings. Judge Leonard P. Edwards, a retired judge in California, writes on the NACC blog:
“The child’s attorney sometimes seems to forget that the first goal in dependency proceedings is family reunification.”
The judge goes on to argue that biological parents’ “reasonable efforts” to improve should be sufficient to keep their children, even with a history of serious abuse. “Reasonable efforts” may be construed to include minimal, half-hearted attempts to comply with the state’s orders for rehab or parenting classes.
I find the judge’s statement striking in a couple of ways. First, he is talking about the child’s attorney, not the parent’s attorney. The obligations of the child’s attorney should be toward the child only. Why would a child’s attorney have any obligation to make arguments on behalf of the child’s abusers?
Second, notice that the judge argues that the first goal in dependency proceedings is family reunification, not the child’s safety. In some cases, children can be safely reunited with their biological family. But in many other cases, a child is safest if the parental rights are terminated so the child may be adopted into a permanent, loving family.
Recently, my husband and I went through foster parent training and at the beginning of every class we were all required to repeat the following mantra, in unison: “The goal of foster care is reunification.”
I was troubled; not because I think no families should be reunited, but because the mantra tips the balance toward the parents’ right to the child as property instead of focusing on the child’s right to a safe home.
I suppose that in order for the system to keep chugging along as it always has, people have to be indoctrinated and trained to suppress common sense.
What I would really like is for us to cut out the mantras. We need to start really examining how we can make child welfare policies better, meaning more child-centered. Because if a child is not able to access that first human right to safety as a child, he will be unable to access all his other human rights as an adult.
Katie Jay is an attorney and blogger who advocates for child-centered welfare policies. Her blog, Children Deserve Families, covers both domestic and international child welfare policy.