The Need for Judicial Reform in Child Welfare Cases

Losing a child is a difficult and traumatic experience. Some times it's an accidental loss, and some are brought on by authoritarian agencies empowered by the state, such as is done by the Child Protective Services Procurement Syndicate. Parents then have to battle the state in court. Instead of the courts trying to help parents raise their children, it's often a battle to keep their children away and give them to strangers to raise in foster care or adoption.

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Civil and constitutional rights are being ignored in a blind frenzy of taking children way from parents who often only have minor issues in parenting, "just to be safe". Sure, some parents may be outright abusive and harming their children, but some are just neglectful in some way, and others yet are doing nothing wrong but get false accusations levied upon them.

An article written on the American Bar Association website by law professor Vivek Sankaran recognizes some issues with the treatment of parents by the legal system, and how it's actually counterproductive to restoring parental responsibility and helping children. If only the social workers, doctors, police, attorneys, and judges followed the law and actually required real evidence before accusing parents or taking children away, the system would work so much better and be more just.

Sankaran's article is titled My Name Is Not “Respondent Mother”: The Need for Procedural Justice in Child Welfare Cases. When judges call mothers who have their children taken away for whatever real or made up reason, they are called by the label 'Respondent Mother', not by their name.

Sankaran opens by recounting a typical morning arriving to court. Parents are afraid, don't know what's going on or who to ask for help or to answer questions. Someone who represents the state and allegedly is there to represent the best interest of your child is doing their job to keep your from your child.

The clock reads 9:30 a.m. Abruptly, the judge walks in, everyone rises, and the proceedings begin. No one apologizes for the delay. Next, a flurry of activity, none of which you understand. Lawyers move around the courtroom, parents are crying, papers are distributed, hearings conclude. A new case is called. This pattern repeats until the clerk says your children’s names. You nervously move forward.

The professionals on your case introduce themselves. The person beside you – whom you’ve only spoken to briefly – introduces himself as your lawyer. You discover another person – whom you’ve never met or spoken to – represents the best interests of your children. You have so much you want to share and understand. Why is this all happening?

No one talks to you until it's your turn up in front of the judge, and even then you're told not to speak. None of the positives of your family or parenting is talked about, only the negatives:

You want to speak but your lawyer tells you to be quiet. You have so much to share: you read to your children every night, got them to school every day by yourself, took them to their grandparents’ house to play with their cousins. Now you can’t do these things. Now you’re just a “Respondent Mother” who no one wants to hear from.

The reality of your and your children's lives is ignored, and nothing changes as your child remains in foster care as you await another court hearing weeks or months later. Then it's all over, and the next case is heard as everyone leaves, leaving you with nothing but hopes to one day have your child back in your care.

The clerk hands you a court order, which your lawyer says lays out everything you need to do. He then hurries off.

You look at the paper, a pre-printed form with boxes checked and legal jargon you don’t understand. Confused, you look around for your lawyer. He’s working on another case, one of many he is assigned to that morning. You leave feeling dejected, hopeless, and angry: What happens now? When will you get your children back?

Is this all by design? How parents are treated in the legal system leaves much to be desired in terms of improvement and helping parents out. Sankaran suggests it is by design, for 3 reasons:

1. to punish parents who have done horrific things to children
2. to motivate parents to address their deficiencies through harsh treatment
3. to allow children to live in a foster care system that better meets their needs

But that's pushing parents into categories they often don't fit into, and punishing them for things they never did. As Sankaran puts it, "the evidence clearly calls for a different approach."

Most child welfare cases don't have awful parents involved, contrary to public perception. Nglect accounts for 75% of cases, and that includes a variety of conduct that's often a factor of poverty, "including a lack of food or clothing, homelessness, or parental substance abuse." Physical abuse accounts for 11.6% and sexual abuse 6.6% of cases. Most parents that have their children taken away by the state are not "monsters" that deserve to have their children stolen from them.

Some suggest that the harsh treatment is to motivate parents to comply with court orders and address the needs to get their children back, but that's not supported by the evidence either.

Numerous studies show that when courts employ procedural justice – a system that treats litigants fairly – litigants are far more likely to respect the process and abide by the court’s orders.

Fair treatment includes four key factors:

• voice
• respect
• neutrality
• understanding

When that's missing from the judges, lawyers and social workers, parents feel like they are being mistreated and outcomes are not fair or just, which has them mistrust the process and reluctant to accept the rulings. If parents good have their story hear and have "confidence that the decision maker is neutral and unbiased", then the whole court process would be better and more just.

The myth that the foster care system can provide better care thatn the natural family, is wrong as well:

Upon their initial removal from their parents, children are immediately traumatized by the foster care system. Research shows the removal process itself threatens the well-being of children by creating painful and unresolved ambiguity in many aspects of their lives, including where they will live, when they will see their families, and what the future holds for them.

The pain created by this ambiguity is exacerbated by the realities of the foster care system, in which children are routinely moved between homes, forced to change schools, and see their siblings or parents infrequently. Unsurprisingly, children raised by the foster care system, who eventually age out when they reach adulthood, face a high risk of unemployment, incarceration, young parenthood, homelessness, or death.

Child welfare services have major side effects if you look at them as an alleged "medicine" to help children.

Sankaran suggests examples of how courts can make things better by functioning differently:

• A judge in Washington State, before hearing from any professional, begins each court hearing by asking the parent how she is doing and how things are going.

• A judge in Nevada inquires whether the court date he wants to set works for the parent, and encourages that parent to inform the court if the parent later learns that the date does not work.

• A judge in Michigan requires prison officers to unshackle incarcerated parents, in prison for nonviolent crimes, during court hearings.

He also has 27 "Action steps" for "building a new child welfare court process." I won't list them all, but they include "address parents by name", "provide an opportunity for parents and youth to address the court directly" and "acknowledge unfairness."

Vivek Sankaran sees many of the problems, and he wants to build a better child welfare system that supports parents to heal and not destroy families or make children suffer needless trauma. He has a blog called Rethinking Foster Care, and can be found on Twitter @vivekssankaran.

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Thank you for your time and attention. Peace.

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