Reader’s Response to “Reevaluating Child Welfare Priorities”

On Monday, The Chronicle of Social Change published a column by Katie Jay, a member of our Blogger Co-Op. In it, Jay argues that the priority of the child welfare system has swung away from the safety of a child and toward parental rights.

Brooke Silverthorn, staff attorney for the National Association of Counsel for Children, wrote the following to us in response to that column.

I applaud your effort to bring attention to the issues facing the child welfare system and child safety. We definitely need more of that. However, as a child advocate attorney with the National Association of Counsel for Children and certified child welfare legal specialist, I must correct the flaws in your statements so that we have accurate information being distributed to the public.

Children may come to the attention of the child welfare agency because they are in danger. But they come into foster care (i.e. are removed from their parent’s custody) when they are unsafe, which is the priority of our child welfare system. When a child is in danger and the child protection agency becomes aware of and assesses that danger, it is faced with various options as it relates to the child and family.

A discussion of those options brings me to your misunderstanding of “reasonable efforts”.  “Reasonable efforts” is a legal term of art (and in fact a legal requirement) in the child welfare world.  Both federal and state laws require the child protection agency to make “reasonable efforts” to prevent any unnecessary removal of a child from the parent’s custody. A classic example of this requirement is as follows:

The child protection agency receives a referral on a family due to deplorable living conditions, such that it poses a health hazard to the child in the home. In other words, the child is in danger because the parents have created or allowed the child’s living environment to become a legitimate health hazard.

At that point, the caseworker, through the agency, has to ask him/herself, are there any services that I can immediately provide to this family that will ameliorate the danger and allow the child to remain safely in the home? And if there are, then the caseworker must try to implement those services prior to removing the child.

In this scenario, an example might be offering a cleaning service to the family and then providing counseling to address any underlying issues that may have contributed to the problem.

The reasonable efforts laws also allow an agency to forego an attempt to provide reasonable efforts to prevent removal in certain situations, which are enumerated in each state’s laws. Typically, these situations involve emergency situations or situations which involve egregious behavior toward a child that move a child beyond just being in “danger” and into a situation in which a child is currently unsafe.

The reasonable efforts to prevent removal laws make sense when you look at the research surrounding the trauma a child encounters in being removed from his or her home. There are well-documented studies which outline the trauma that children experience when removed from their home.

Sometimes, as when a child is unsafe and there are no services that can immediately make the child safe, the trauma of removal is outweighed by the safety factor. But that is a legally mandated analysis that the agency must undertake at the start of all cases. And it is also an analysis that any good child’s attorney should make, not to assist the parent’s case as you say, but in order to minimize any further trauma to their client: the child.

Secondly, if the agency does remove the child from the parents, the primary goal and most favored permanency option under federal law is the safe reunification of the family.  Again, studies show that, when safe, children have better over-all outcomes when they are with their family.

Therefore, the agency is legally mandated to provide reasonable efforts to facilitate that safe reunification of the family. Sometimes, as in egregious situations, the agency can ask the court to be relieved of that legal mandate at the beginning of a case. Again, that is governed mostly by state statute. Additionally, the agency can request at other points throughout the case to be relieved of that legal mandate as well.

Your criticism of Judge Edwards’s blog is misplaced and taken out of context. You quote some of what he says, but again, you quote it out of context. He talks about safe reunification as follows:

“Moreover, the reasonable efforts to ‘effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure immediate safety of the child)’ should be addressed early and often.”

In other words, we need to be making sure that we are monitoring and pushing for the agency to be addressing the issues within the family that made the child unsafe so that we can achieve permanency for the child as quickly and as safely as possible.

Furthermore, addressing the efforts to effect the safe reunification of the child and family also serves the dual purpose of monitoring whether the parents are able to fix the issues and be safe parents. If not, then the agency and the court need to be looking for a permanent family for the child. After all, the second most favored permanency option (under federal law) is adoption, recognizing that once removed, a child is going to have better overall outcomes when in a permanent and loving family.

However, regardless of whether a child ultimately ends up in a loving permanent family – adoptive or reunification with his/her biological family – that child is traumatized by the initial removal. The requirement to provide reasonable efforts prior to removal is one way to try to ensure that we are only removing children when the immediate safety concerns are outweighed by the trauma of removal.

If a child is unsafe then yes we remove. But please don’t kid yourself into thinking that the child is not further traumatized by that removal.

Child welfare law is a legal specialty that must be studied in order to be fully understood. Unfortunately, many lawyers think that because it deals with children, it must be simple.

It’s not simple. And as you point out, there is lack of jurisprudence around children’s rights. For example, children do not have a constitutional right to an attorney in a dependency case. Nor do they have a clearly delineated right to their families or siblings (although they should).

Clearly, you care about children and their safety, as do I. Therefore, I challenge you to learn more about the legal issues and become involved in the fight to improve children’s rights in dependency cases. I offer up the issue of their right to lawyers, but there are others as well. Thanks for your interest.

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John Kelly
About John Kelly 1115 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.