Reevaluating Child Welfare Priorities

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.

2014-01-04-14.20.06-e1421780390497-959x1024I 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.

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  1. Quote from above: (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) All I can say is, WOW and DISTURBING. Marci, great comment! The author’s last paragraph is right. Each case needs to be assessed on its merits. Now, if only judges, attorneys and child welfare would do that!

    • Author’s first statement that children in foster care are in danger. I couldn’t count the number of cases where that is absolutely not true. Child welfare uses the “risk of harm”, “imminent danger”, “predictive neglect”. Who’s in charge of defining that?

  2. The problem I see with CPS is that it neither protects the child, nor does it assure that a person’s CONSTITUTIONAL PARENTAL RIGHTS are preserved.

    This system is clearly broken. Foster parents are given misinformation – sometimes inadvertently, but most of the time, they are intentionally misled by caseworkers, those who train foster parents, etc.

    Parents are often unable to obtain fair representation (court appointed attorneys actually work AGAINST the parents most of the time), our if they do manage to obtain counsel, it drains them of all their funds.

    The biggest problem that I see is that CPS is more than happy to target loving, non-abusive families and secure TPR against these parents, but will repeatedly return, or virtually ignore altogether, families where real abuse and neglect are occurring.

    I spoke with one therapist who said that CPS workers find it “too difficult” to work with children who are truly being abused…so they recommend that the children be released to their parents. It’s much easier to take healthy, well-adjusted children from their families…and make them LOOK like they are being horribly abused.

    In my own case, once I got copies of my records, I discovered mountains of false documents, forged signatures, manipulation of events and individual statements, coercion on the part of the investigator, original caseworker (#1 out of 5) foster parent/children’s home director and CAC interviewers. I also found emails between the investigator, original caseworker and GAL that uncovered the GAL’s plan to separate my two girls into different placements…almost 40 miles apart from each other. She flat-out told the other two she was going to LIE to the judge..that if she told him she didn’t like the amount if influence the older one had over the younger one, he wouldn’t listen. So she was going to claim that sexual activity was going on between the girls, because he WOULD believe and act on that.

    The “influence” she so despised? We taught ASK FOUR of our kids that the older ones look out for the younger ones. These were our two youngest children..they knew to STICK TOGETHER – the older one was only protecting her little sister.

    But you know what…that GAL did lie, and she did get the girls separated. They now are in two different adoptive homes.we know where our 15
    year old is, and it IS NOT GOOD. We have NO IDEA where our youngest is. She simply vanished after being adopted.

    As a parent who DID NOTHING WRONG – I can tell you that this is the ABSOLUTE WORST NIGHTMARE a parent can face

    We appealed the ruling, and let me tell you, filling as a pro se litigant is an eye-opening experience. I learned more about the law than I ever dreamed could be possible for me to do. I also v discovered that appellate judges are COWARDS. Those judges admitted from the bench that they knew vwe were innocent, yet still affirmed the ruling for TPR. They knew that if they overturned our ruling, it could possibly open Pandora’s Box regarding TPR. A particular piece of case law that I discovered actually has the overturn virtually EVERY TPR ever granted. It is so worrisome that our state juvenile officers’ manual actually instructs them to tread very carefully…

    My husband and I now advocate for those who are caught in the system…regardless of v guilt or innocence…Parents need their rights to DUE PROCESS protected AND they need support through the grieving process over the death of their family.

    We can be found at Civil Death on facebook. Very soon we will have up and running. We just secured the domain name last evening and are now in the process of getting the site developed. For now we can be contacted on facebook.

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