Recipes for Failure
Kevin Norell is
one of the newer foster care caseworkers in the Utah Division of Child and Family Services, hired to satisfy child-welfare
reform laws and the terms of a recent lawsuit settlement in Utah.
According to Norell,
the state asks a lot of parents who want their children returned home. They have to find a job, find housing, all of which
can be "tough to do for anyone in Salt Lake County." Parents are ordered into therapy, parenting classes, perhaps drug rehabilitation,
and they have to find time to visit with their children.
"Even an organized parent might
have trouble with all that. And many of these parents are anything but organized," says Norell.
The articulated intent of reunification plans may be admirable, however the reality
is that many plans are engineered for failure, as the 1991-1992 San Diego Grand Jury explained:
Testimony was received regarding the hours of time which must be spent in order to comply with these plans. Defense
attorneys have testified that they have told clients that it is impossible for them to work and comply with reunification.
Judges and referees were observed, seemingly without thought, ordering parents into programs which require more than 40 hours
per week. Frequently, these parents have only public transportation. Obviously, there is no time to earn a living or otherwise
live a life. A parent often becomes a slave to the reunification plan.
The 2008-2009 San Diego Grand Jury found that little had changed with
respect to these reunification plans since its predecessor had issued its findings. The Jury notes that after a social worker
detains the child or children, and the Juvenile Court assumes custody:
is required to develop reunification plans for the parents. These may require some parents to attend parenting or anger management
classes, take drug tests, and get therapy, etc., in order to get their children back. Some parents interviewed by the Grand
Jury say some workers are unreasonable in what they require. These parents assert that CWS workers do not understand that
parents must work for a living, they may have to use public transportation to attend classes wherever and whenever the recommended
agencies offer them.
Similar trends were found in Santa Cruz, according to a study issued
in April 2010. The Peer Quality Case Review endeavored to identify the strengths and weaknesses of the child welfare system.
Specifically regarding reunification plans, among the study's findings, drawn verbatim from the report:
Sometimes parents lose their jobs as a result of having to complete all the services CPS requires to get their child
Parent's Counsel are over-worked and under-funded so it is difficult to hold social workers accountable for participatory
case plans which are lacking
Social workers not always inviting attorneys to planning meetings
Case plans contain a lot of boiler plate language and are not tailored to clients.
"Decisions are being made by a limited number of people involved in the case rather than the involvement of all
involved; parents are not routinely invited to difficult case meetings," the Case Review explained, noting also that: "There
is a lack of formal processes for making the decision to return a child home."
A CLOSER LOOK
Reunification plans often impose goals that are as sweeping in scope as they are subjective in their interpretation.
In a Minnesota case, for example, the "disposition plan" for reunification included the following elements:
that appellants work with a housekeeper provided by the county to maintain the housekeeping standard from week to week;
- (2) that appellants cooperate with an assessment and goals as determined by an in-home skills counselor, to provide
a safe, clean, and organized living environment for the family;
- (3) that prior to reunification, the home
environment will have an adequate level of housekeeping, as determined by the social worker and public health nurse;
- (4) that appellants keep all scheduled appointments with service providers or cancel and reschedule appointments
in a timely manner;
- (5) that appellants complete individual psychological and psychiatric evaluations
and follow all recommendations;
- (6) that appellants attend individual therapy to determine and address
issues of depression, grief, and loss, and other issues as may be recommended by the treating therapist;
that appellants cooperate and work with the assigned financial worker from the county and comply with the budget or recommendations
of the financial worker;
- (8) that appellants follow all recommendations of [the child's] treating physicians
and keep all appointments with the home health aide for the purpose of childcare, nutrition, and bathing; and
that appellants maintain a working telephone in the residence at all times.
This is in many respects a typical plan. Cooperation with both the plan
and the department that created it is compulsory. Once a child is in foster care, the simple failure to maintain a purely
subjective housekeeping standard, the missing of an appointment, or the disconnection of a telephone can result in the permanent
separation of a child from her parents.
In California, an often-applied ruling used to
terminate the parental rights of parents who may refuse to comply with social worker demands that they attend treatments such
as parenting classes and therapy reads: "the failure of the parent or guardian to participate in any court-ordered treatment
programs shall constitute prima facie evidence that return [of the child] would be detrimental."
This is true throughout the states, as the Pew Commission on Children in Foster
Care succinctly explains: "If a parent fails to comply with the reunification plan, the child welfare agency will petition
the court to terminate the parents' rights to the child."
COOKIE CUTTER PLANS
A Broward County, Florida, Grand Jury criticized many case plans as "cookie cutter" and as "one size fits all,"
citing numerous instances in which everyone was assigned the same or similar tasks regardless of the relevance of such assignments.
"It is very apparent to this Grand Jury that too many case plans have been prepared without regard to the foster child or
the child's biological family's needs or concerns. Even more apparent is the fact that no supervisor was conducting meaningful
reviews of these case plans."
New York University Law School professor Martin Guggenheim echoes these concerns,
explaining that: "One of the questions about therapies and programs like parenting classes is how well-adapted they are to
the individual person they claim to be serving. When they become cookie-cutter-like rules, like recipes for making soup, they
rarely translate to anything meaningful in a person's life."
Guggenheim explains that
since 1997, a new consensus formed in the United States such that "once children have been removed from their homes, whether
their removal should or should not have occurred, there will now be a desire to permanently terminate parental rights and
banish birth parents forever from the lives of their children unless they're able to get them back within a relatively short
period of time, a year or two."
Some years earlier, Hank Orenstein, Director of New York City's C-Plan, raised
many of these same issues, among them what he described as the "one-size fits all" service plans, noting that: "We receive
50-60 new complaints each month, mostly from birth parents that express a variety of concerns, including inappropriate removals,
the lack of services to facilitate reunification with their children, and the mistreatment of their children in foster care."
Orenstein continues on to explain:
We learn a great deal from the parents through
our weekly support groups and our intake process-in which parents initially vent and express their guilt, rage and despair
about the ordeal of having their children removed. When first approached by child protective workers, birth parents report
that they are treated like criminals under investigation. Some parents report that workers present the possibility of taking
their children away with the children present. Once their children are placed in foster care, there is a failure to develop
and implement a service plan that is tailored to the needs of the child and the family. Instead, referrals are made according
to one-size fits all approach based on weak assessments that focus on family deficits rather than strengths.
A study released by Children's Rights in November 2009 revealed that
little had changed over the years: "Parents and others said that communication is a major problem in casework, particularly
when children are first taken into foster care. Caseworkers sometimes fail to communicate clearly with parents about what
is happening with their children and do not act quickly enough to identify and appropriately engage all relevant family members
who need to be a part of case planning and/or services. Caseworkers also do not always adequately inform parents upfront about
all of the requirements they will need to meet in order to regain custody of their children - and often come back to them
later on to tell them they must complete additional tasks or services to get their children back. Additionally, parents and
resource parents alike said that caseworkers do not consistently treat them with respect."
Jeanne M. Kaiser of the Western New England College School of Law conducted a
review of appellate decisions concerning reasonable efforts, finding that "cases are rarely overturned on the grounds that
the state has not done enough to try to reunite parents with their children."
reasons for this outcome "are abundantly clear," Kaiser explains. "When the appellate court of any state reverses a decision
of a trial court in a care and protection or adoption case, it may also be reversing years of work to obtain permanency, safety,
and emotional well-being for children who are parties to the case. This is a hard path for an appellate court to take even
when faced with lackluster, or downright hostile, attitudes towards reunification by the state."
As a result, courts "may find it easier to rule that reasonable efforts need only mean meager or pro-forma efforts."
Regarding the construction of reunification plans specifically, Kaiser explains:
my observation is that many service plans developed for parents who have children in the Massachusetts child protection
system have a decidedly perfunctory feel to them. They routinely contain a mix of parenting classes, anger management workshops,
and individual therapy, which when looked at in the context of the needs of the parents involved, appear to have little to
no chance of providing any actual help.
"Consistent judicial approval of these
sorts of efforts certainly does little to encourage the state to exercise more creativity or vigor in carrying out its reunification
efforts," Kaiser explains.
The 1991-1992 San Diego Grand Jury confirmed that these plans
are sometimes intentionally made impossible to prevent reunification: "Failure to comply with any element of a reunification
plan is sufficient for termination of parental rights. We have taken testimony from attorneys, court appointed therapists,
and social workers, that some of these plans are intentionally made impossible, particularly when infants or toddlers are
Chief Administrative Officer Norman Hickey conducted a follow-up investigation
of the San Diego Department of Social Services. His report confirmed the Jury's findings, following on the heels of another
stinging critique of the system by the county's Juvenile Justice Commission.
is too demanding of the parents, distracting them from more important issues, he wrote. "Too many tasks or unproductive requirements
overwhelm parents and reduce the potential for priority behavioral change."
also indicated that foster parents may try to thwart reunification efforts. "A desire to take care of the child on a permanent
basis must not be permitted to work against the parent's goal" of reunification.
The Juvenile Justice Commission examined several troubling cases in which social
workers sought to prevent reunification of children with their parents. They found such cases in their representative sampling
to be "numerous and diverse."
In one such case, a social worker threatened that a child
would be removed from the mother's home if she allowed the child to attend a scheduled birthday party with her father in a
public place. She further advised the mother to move to another part of the County, and keep her whereabouts unknown to the
In another case, a social worker sought to prevent the development of ties between
a child and her maternal aunt, even though the aunt was known to the worker as a licensed foster mother. The worker sought
instead to maintain the child in a foster home in which the foster parents had expressed a desire to adopt the child.
"The unwillingness of the Children's Services Bureau staff, from line to administrative, to
listen to opposing views to the point of being hostile and threatening has resulted in a backlash from the community, as well
as tragic consequences for families," the Commission found.
"Court time and real time
are world's apart, so that while a case drags on from week to week and month to month, the agony of separation continues,"
the Commission concluded. "While Court cases often require lengthy investigation and preparation to ensure due process of
law to all involved, it must never be forgotten that these cases are ultimately about living, breathing human beings."
In a 2007 ruling, the Nebraska Supreme Court overturned a Court of Appeals decision
upholding the termination of a mother's parental rights based on her alleged failure to complete her reunification plan.
The case did not involve any allegations of child abuse or neglect, rather it involved the mother
developing a case of post-partum depression, for which she sought help from the Nebraska Department of Health and Human Services.
Katianne had agreed to a one-month-long voluntary placement of her son, Xavier. To resolve some alleged remaining issues,
DHHS asked the mother and father to sign a voluntary extension of placement, which the father refused to sign.
Thus the child came "to be under the jurisdiction of the juvenile court due to the parents' failure to provide
proper care." Xavier's adjudication "began a process in which a case plan for reunification was developed by the Department
for Katianne. According to the Department, Katianne was not to be reunited with Xavier until the goals of that plan were met."
The goals of the reunification plan included:
- maintaining steady employment;
- submitting to random urinalysis testing;
- attending parenting classes;
- presenting a budget and receipts for the timely payment of her bills;
- enhancing her time management
- maintaining a healthy lifestyle;
- maintaining her home in a condition suitable
- engaging in positive family activities;
- maintaining communication with
- and cooperating with a family support worker to set up visitation.
DHHS apparently had no concerns about the two other children still in Katianne's care, even as it moved to terminate
her rights to her third child in the interest of providing Xavier with stability and a "better" home. "We are most troubled
by the Department's argument that Katianne can handle two, but not three children, inviting the arbitrary removal of one.
Nor does the fact that the State considers certain prospective adoptive parents 'better' overcome the constitutionally required
presumption that reuniting with Katianne is best," the Court explained.
Court stated that the fact a child has been in out of home placement for 15 of the most recent 22 months, per the guidelines
of the Adoption and Safe Families Act as codified in the state's statutes, did not in and of itself demonstrate parental unfitness,
leaving in place the rebuttable presumption that reunification was in the child's best interests.
The Court sternly admonished that children ought not be "held hostage to compel a parent's compliance with a case
plan when reunification with the parent will no longer endanger the child."
This is not the way that it should work,
as the Nebraska Foster Care Review Board explains: "Case plans are the road map home for the children. If there is no plan,
then there is no way for the parents, the case managers, or legal parties to the case to accurately measure progress. In the
case of non-compliant parents, no plan can mean children remain in out-of-home care without permanency because the professionals
cannot build a case for termination of parental rights. Parents who are trying to comply can be extremely frustrated because
they do not know what is expected of them."
The Board continued on to explain: "It is
also important to recognize that if the parents cannot do what the plan states (i.e., if the services needed are not available
in a geographic area or if the parents are too low functioning to ever comply) then the plan is not realistic and not truly
'reunification.' Rather, it is a plan for parents to fail and for children to remain in the system far longer than necessary."
The Board found that "too many children do not have complete, written plans," noting that 1,247
of 4,116 reviewed children, or 30.3% of its reviewed cases, "did not have complete written permanency plans." The board explained
that 684 children had "no current plan," while another 563 children had "incomplete written plans," defined as meaning that
they were "missing one or more essential elements needed to establish what is to happen and how this will be accomplished."
A report issued by the Inspector General of the Kentucky Cabinet for Health and
Family Services reveals that there is precious little oversight over how these plans are constructed or applied. "There is
no mechanism to assure or verify services necessary to assist families in reunification were provided to them," the report
Parents have been required to pay for assessments that were court-ordered to
be paid by the department, and there is "no objective method to determine when a case plan is completed," the report explains.
This often results in confusion between parents and staff. Various department staff members were found to have "mandated differing
results to fulfill the same case plan requirements, even to the extent that workers contradicted court findings."
The report also found that "the parents' chances at successful family reunification may be primarily dependent
on the caseworker assigned to their case." There may be disagreement among caseworkers and other staff members regarding the
progress of cases, and there is often a lack of communication between players that may result in significant delays in reunification.
The report further explains:
Parents have been required to complete the same
items more than once, because one worker states they have fulfilled the requirement and the next worker states they have not.
In one case where this situation occurred, after two years, it was determined the parents' original effort had fulfilled the
case plan requirements. The child was out of the home the entire two years, and remains out of the home, although the parents
appear to have fulfilled all case plan requirements.
The Office Of Kentucky Legal Services identified several similar problems
in a public forum held in 2007. Chief among them was: "Failure to provide appropriate and helpful services to allow parents
to reunify with their children." The Office outlined some of the findings of associated legal advocates drawn from around
Sometimes, the Cabinet requires parents to perform tasks that are
very difficult or impossible to complete or that don't address the real problem. For example:
Asking parents who don't have drivers' licenses and/or live in rural areas to attend parenting classes
Not allowing adequate time for a parent to complete substance abuse treatment before moving for termination
Asking parents to attend parenting classes when lack of housing or transportation is the real problem, not parenting
Among the other identified problems was the failure to
locate and involve non-custodial parents, or putative fathers, when children are removed from their homes. "We know of a number
of cases in which the father was not 'located' until a termination of parental rights action was filed. In one case, the father
was paying child support and was living in the same town," the Office explains. One father had to get a court order to see
the petition after his children were removed from the mothers' custody, even though paternity and child support had been established
in the same court.
On the other hand, mothers who had been the victims of domestic violence
were revictimized by the Cabinet, as domestic violence shelters expressed concerns that in a number of cases children had
been taken from their mothers absent any evidence of abuse or neglect simply because they were in shelters.
"Perhaps because of federal financial incentives, the Cabinet at times proceeds to terminate parental rights when
adoption is not a viable or good outcome for the child," the Office explained.
also expressed that Child Protective Services cases involving immigrant families present unique challenges: Parents are routinely
ordered to attend parenting classes, although there is only one Spanish language parenting class with a long waiting list.
In some cases, the Cabinet has held this against the parents, claiming they were not cooperating with their treatment plan.
Allegations of child abuse or neglect are not necessary to remove a child, or for that matter
to permanently sever parental rights. In every state, the laws have been constructed in such a way as to allow the removal
of children on the basis that they may be abused or neglected at some point in the future.
In the State of Montana, for example, temporary removal orders require the department only "to submit to the court
facts establishing a probable cause that a youth is abused or neglected or is in danger of being abused or neglected."
According to a judicial assessment of the Montana juvenile justice system, such treatment plans
are often implemented early during the proceedings, even though a child may not have been adjudicated "a youth in need of
"Adjudication provides the basis for state intervention in a family," reviewers
note. "Therefore, enforcement of treatment which is not required for the immediate protection of the child...
is an inappropriate exercise of the state's power." Citing state law, the reviewers explain the dire consequences of failure
to complete the "treatment plan" constructed by the department of social services:
the failure of a parent or guardian to participate in, comply with, in whole or in part, or to meet the goals of the treatment
plan is prima facie evidence that return of the child to the parent or guardian would be detrimental.
Montana's reviewers found that most judges rarely issue orders or make recommendations addressing reunification
or treatment plans, finding that: "Some judges assert that it is appropriate for the courts to defer to the department's expertise
in these matters because of the social workers' experience and education."
One judge reported
that while he often orders parents to take parenting classes, he does not actually know what those classes entail.
Over half of counsel representing parents said that they seldom receive information from service providers or the
department regarding the availability of services. Reviewers determined that: "Parents' counsel are, therefore, unable to
to effectively challenge the appropriateness of a treatment plan."
In a Florida case, HRS filed a petition to declare a child dependent, and to terminate
the parental rights of the mother. The lower court dismissed the petition, as it failed to allege any abuse or neglect on
the part of the parent.
The Court of Appeal ruled that abuse or neglect need not
be alleged, and that the lower Court was in error holding that it could not terminate parental rights on the ground
that HRS had alleged only that the mother failed to comply substantially with her performance agreements:
Florida Rule of Juvenile Procedure 8.500(b) provides that the only substantive allegation required in a termination
petition, aside from the parents' and child's identities, etc., is that "the parents were offered a performance agreement
or permanent placement plan and did not substantially comply with it," when required by law. The petitions conformed with
The results arrive as no surprise. In examining studies conducted by
the American Humane Association during the mid-1980s, Dana Mack found that half of the families that child welfare agencies
compelled to undergo therapeutic services for child maltreatment never mistreated their children at all, and that
many removals of children are capricious actions of "preventive intervention," based on a caseworker's presumption that although
abuse may not have occurred, it may at some time in the future.
Personal bias and prejudice may play a role in how reunification plans are constructed. Veteran Juvenile Court
Judge Judy Sheindlin recounts the story of a young couple named Robin and Tim. Robin had two children before she met Tim.
She also had a drug problem. City caseworkers stepped in and removed her three children when her third child was born with
cocaine in her system.
Tim, who was separated from Robin, lived at home with his parents
and his brother, all of whom were employed. Judge Sheindlin describes the obstacles Tim had to face when he sought custody
of his child:
First, he had to establish paternity, proving that he was the biological
father of his child. Tim did this. Next, the caseworkers told him that before he could even be considered for custody, he
had to take parenting classes. He had to provide the name of the person who would be caring for his child while he worked
during the day. He had to establish a permanent, independent residence. There was not a scintilla of evidence that he was
an unfit parent, but these were the rules that Tim had to follow. He met all of the conditions.
Meanwhile, Robin the drug addict had it easy. All she had to do was enroll herself in a drug treatment program
and get on welfare. That, my friends, was it.
When Sheindlin asked the caseworker
about this obvious gender disparity, her answer was simply: "Well, she's the mother."
Similar biases are to be found in Illinois, according to the Federal Child and
Family Services Review issued in January of 2010. The CFSR identified "several concerns with regard to the State's performance
in achieving the desired outcomes for children and families." As the report explains: "The State does not make concerted efforts
to involve parents, particularly fathers, in case planning, visitation, or permanency planning."
Problems persist from a child's entry into the system, through her ultimate "emancipation" onto the streets. Among
the other problems identified in the 2010 CSFR report: The child's permanency goal was not appropriate and/or not established
in a timely manner; a lack of effort by the agency to achieve reunification, where appropriate; a lack of concerted effort
to achieve the goal of adoption in a timely manner, where appropriate, due in part to delays in the TPR process and a lack
of effort to finalize adoption after TPR was achieved; a lack of concerted effort to provide the child with Independent Living
services, where appropriate.
Consider the case of a father who had entered into a "performance agreement" with
the Florida Department of Health and Human Resources. The performance agreement, which came later to be referred to as a "case
plan" pursuant to revisions in the Florida statutes, required the father to perform nine tasks to be reunified with his child:
- (1) completion of an abuse counseling program and its recommendations;
- (2) completion of a
psychological evaluation and its recommendations;
- (3) completion of a parenting program and demonstration
of proficiency in parenting skills;
- (4) evaluation for anger management and follow recommendations;
- (5) evaluation for individual counseling and follow recommendations;
- (6) monthly contact with
- (7) follow reasonable requests and recommendations of the supervising counselor;
provide HRS a list of relatives, their addresses, and phone numbers; and
- (9) maintain adequate housing
and demonstrate financial ability to provide for the child.
The father, through
sheer determination, managed to comply with the provisions of the performance agreement. But was HRS satisfied with the result?
On November 22, 1994:
HRS filed a motion for change of goal, requesting that
the father's rights regarding the child be terminated because he had "failed to benefit from services in a reasonable length
The lower court, on this basis, terminated the father's parental rights.
The father appealed to the District Court of Appeal. On March 22, 1996, the Court of Appeal reversed the decision of the lower
court, holding that HRS had not met its burden of proof. The case was remanded for further proceedings. By this time, the
child had been in foster care for three years.
In Blanca P. v. Superior Court, a California court dealt with a termination
of parental rights case based on similar grounds; in this instance the alleged inability of a parent to fully "internalize"
her reunification plan. As the court explained:
Let us be plain. The idea that,
despite enduring countless hours of therapy and counseling . . . a parent who has faithfully attended required counseling
and therapy sessions must still relinquish her child because she has not quite "internalized" what she has been exposed to
has an offensive, Orwellian odor. The failure to "internalize" general parenting skills is simply too vague to constitute
substantial, credible evidence of detriment. To hold otherwise would come perilously close to allowing legal decisions of
monumental importance to the persons involved to be based on nebulous ideas more appropriate to an afternoon talk show than
a court of law.
Citing as "extreme" the relatively few cases in which reunification services
are allowed to continue beyond the mandated cutoff, the California Court of Appeals explains: "There are circumstances in
which appellate courts have permitted reunification services to continue beyond the 18-month statutory period."
In one such case, "no reunification plan was ever developed for the father, thus the appellate court ordered such
services to be provided." In another such case, the juvenile court characterized the reunification services offered to the
mother as a "disgrace," but felt constrained to order a hearing on a permanent plan because the 18-month hearing date had
arrived. The appellate court reversed, giving the juvenile court the opportunity continue reunification services.
Another extreme example concerned a mother who had "been hospitalized during most of the 18 months, yet she had
substantially complied with the reunification plan and her record of visitation was exemplary." The appellate court reversed
the judgment terminating the mother's parental rights, remanding the case to permit the juvenile court to continue reunification
When all else fails to thwart reunification, it's time to roll out the "experts" claiming mental incapacity on
the part of the parent.
These experts are often the very ones that the parents are compelled
to attend therapy and other such "services" with as a part of their court-mandated reunification plan. Hence, the reunification
plan often becomes little more than a sugar-coated opportunity for the agency to construct a strong case against the parent
where it may have had a marginal one to begin with. Held captive by the terms of their plan, parents are effectively compelled
to participate in the destruction of their own family.
For example, in In re Kimberly
F., a rather typical "dirty home" case, it was found on appeal that it was "undeniable" that the mother showed a change
of circumstance, as the Court explains: "Her home was no longer in an unsanitary and unsafe condition. The worst the social
worker could point to was a few extension cords and some general 'clutter' of newspapers, books and clothes."
That left only the characterization of the mother as "narcissistic," "self-centered," "dolorous," and "generally
conservative" according to the testimony of one court appointed Dr. Donald Smith. The Court handily deflated his testimony,
Those are, at the absolute worst, literary descriptions of eccentricity,
not tendencies to harm children. They cannot carry any weight in showing detriment. The government cannot remove children
from their parents because a psychologist opines that a parent is "narcissistic." If narcissism could constitute a basis for
dependency, the children of many able and important leaders, not only in politics but academia, the arts - and certainly law
- would be subject to removal.
The Oregon Court of Appeals overturned a termination largely based on
similar "expert" testimony, the thrust of which was that it was anticipated that the parents, due to their alleged psychological
deficiencies, may potentially be neglectful of their children in the future if their children were returned
The parents, having "agreed" to the terms of their service plan to obtain psychological
evaluations, received theirs from one Dr. Basham, whom the Court explains: "diagnosed mother as having a polysubstance abuse
problem that was in sustained full remission. That diagnosis indicates that mother had been free from drugs and alcohol for
at least one year. Further, mother's evaluation included the diagnosis of a mixed personality disorder with narcissistic and
paranoid features. He diagnosed father with a cannabis dependence in early full remission, which indicated less than a year
of abstinence. In addition, father was diagnosed with an Attention Deficit and Hyperactive Disorder (predominantly inattentive
type) and narcissistic personality traits." The Court cites Basham as testifying:
I would expect a person with these personality traits to attribute malicious intent to the children's behavior and to take
punitive or overly critical attitudes towards the children. As I was explaining earlier about the perceptual distortion present
in paranoia, one assumes that others are treating you badly, or if you're a parent, not behaving the way you want because
of some fundamental maliciousness or hostility. And so the parent would presume that that's present for the child even though
the child's behavior may have nothing to do with the parent at all. So what can be expected is a just overly critical or rejecting
or emotionally cold approach to parenting.
The Court handily saw through the
ruse, noting that both parents had successfully completed their substance abuse counseling, parenting classes, and the other
terms of their plan. The Court concluded that: "The evidence consistently demonstrates that the parents showed affection for
and interest in their children. They encouraged them and participated in suitable play with them and responded to their physical
needs during the course of the visits. In addition, the parents' care of their newborn baby for the eight week period before
trial, including the meeting of the newborn's special medical needs is persuasive evidence of the parents' desire and ability
to provide a healthy environment for their children."
Nina Wasow of the New York University School of Law notes that in 1986, a "reunification bypass" law went into
effect in California. This allows caseworkers to deny reunification services to parents under a number of conditions, including
alleged mental incapacity. In her examination of what she describes as California's use of "mental disability as a proxy for
permanent inability to parent safely," she determined that the state's bypass law "lacks both practical and theoretical justification."
As of 2005, there were only two cases in which the California courts had reversed a denial of
reunification services, and she aptly describes one of these two cases:
re Rebecca H., the first expert diagnosed the father as suffering from a narcissistic personality disorder and stated
that he was a "danger to his children." The second expert stated that the parent was "paranoid and antisocial" but found that
he "did not have any mental incapacity or disorder which rendered him unable to adequately care for or control his children
nor did he have a mental disability which would render him incapable of utilizing the services of a reunification plan." This
expert said that the father's "prognosis for change . . . [was] fair," because the father was "highly motivated to become
involved in treatment."
In the second case, In re Catherine S., the
court ruled that the statute required testimony by two physicians or licensed psychologists to support a finding of mental
disability. Since one expert was an unlicensed psychologist, the court held that the state had not properly established the
father's status as a person with a mental disability.
Wasow undertook the task of reviewing
the entire publicly available body of cases in which a parent had appealed the denial of reunification services based on alleged
mental disability. "These cases reveal that the courts have serious difficulties coping with expert evidence, tend to ignore
the substantive requirements of the law, and fail to take seriously the constitutional issues that the law involves," she
She also explored legal and normative reasons that the reunification bypass
law generally - and the mental disability exception specifically - harm both children and parents. "Denying reunification
services increases the likelihood of unnecessary termination of parental rights, and threatens the parent's liberty interests,"
THE CHILD SUPPORT OBSTACLE
Even in the event that the obstacle course that is the reunification plan is by some means surmounted,
one other obstacle is frequently set in the parents' way: the child support obligation.
"State law requires all parents whose children enter the foster care system to pay child support to SRS," the Kansas Legislative
Division of Post Audit explains. How does this work in actual practice? As the Division explains, "parents are liable for
the entire cost of providing reintegration and foster care services while their children are in SRS custody. Rather than pursuing
repayment of the actual costs, SRS officials have decided that, in most cases, the financial obligation of parents should
be determined using a sliding scale based on the parent's income."
SRS uses a scale set
by the Kansas Supreme Court, the report explains. "Under this scale, for example, a family with a single child between 0-6
years-old and a combined gross monthly income of $2,500 would pay $340 a month in child support to SRS."
At least that's how it's supposed to work. As if child support weren't enough of an obstacle to
reunification, in and of itself, SRS has ways of thwarting the reunification of families while simultaneously maximizing revenue.
The Division provides some conscience shocking examples of how this works in practice:
In one case, SRS staff used the cost-of-service method to calculate that the parent owed nearly $10,000 for child
support. Evidence in the file suggests that the cost method was used because the family hadn't provided the income
information needed for the income-based method. Both the parent and the attorney signed the court order requiring the parent
to pay $10,000, which was paid over time. Information in the file dated the same day the court order was signed showed that
income information apparently had been provided, and on that basis, the parent would have owed about $1,600, rather than $10,000.
Although SRS could have gone back to the judge to try to get the court order amended based on the parent's ability to pay,
it didn't do so.
In the other case, SRS child support enforcement
staff used the cost method to calculate that a parent owed $53,200 for child support. SRS subsequently determined
the initial calculation was in error, and the correct amount should have been $45,000. However, after discussions with the
parent's lawyer, SRS agreed to base the amount of child support on the parent's income, instead of the cost method. This resulted
in the parent owing $12,700 in child support, or nearly $40,000 less than the original amount. There was no explanation why
SRS used the cost method initially rather than the income method; in this situation, SRS staff were aware that the parent
was having financial difficulties. The parent is in the process of paying off this charge.
In one case, SRS child support enforcement staff said they would increase the amount of child support they
would attempt to collect if the parents insisted on receiving an itemization of SRS expenses. In this case, child
support enforcement staff calculated that the parents owed SRS $10,656 using the income method and guidelines for calculating
costs. When the parents requested an itemization of the costs incurred, SRS staff informed the parents by phone that those
records weren't maintained, and that if the parents insisted on getting that information, staff would use the higher cost-based
figure rather than the income based figure as the basis for seeking reimbursement. Eventually, the parents rescinded their
request. SRS' response in this case appeared to us to be unnecessarily heavy-handed The foster care system can be complex
and confusing, and parents deserve a respectful explanation of why things are the way they are.
"The current child support system was not developed from a desire to
help children. The federal government and the states created it to reduce the number of children needing public assistance
and to recoup partially the costs of providing benefits to those who nonetheless needed benefits," notes the National Center
on Poverty Law.
In 1975 Congress amended the Social Security Act, providing federal funding
to states to help operate child support programs. As the NCPL explains:
of the federal scheme is that families who need welfare assistance must assign their rights to child support to the state
and cooperate with the child support program in establishing paternity and enforcing support orders. Because most of the support
collected does not go to the children or custodial parent, it generally does not significantly improve the quality of life
or economic stability of family members.
Followed in 1986 the Bradley amendment,
which prohibited retroactive modifications of child support. "Congress intended the amendment to prevent obligors from amassing
huge child support debts and then obtaining judicial relief from the debt that the parent could, and should, pay. The amendment
may achieve its goal for obligors who have the ability to pay but has unintended consequences for obligors who are poor,"
the NCPL explains.
Daniel L. Hatcher of the University of Baltimore explains that when children are
removed from poor families and placed in foster care, federal law "forces a collaboration between child welfare and child
support agencies to pursue child support obligations against the childrens parents."
children receive no benefit, he explains, as: "Payments made in the name of child support are re-routed to the government
coffers and converted into a funding stream to reimburse the government costs of providing foster care services."
This cost recovery requirement "targets parents who are the least able to pay, whose children were often removed
due to the circumstances of poverty and the neglect that results." Hatcher continues on to explain that:
Saddled with the additional child support obligation, the parents' struggles toward economic stability and family
reunification are often derailed. Case plans required by federal law to aid reunification are illegally converted into debt-collection
tools. If the parents fall behind, the government owed debt can become a consideration, sometimes the sole factor, for the
permanent seizure of their children through the process of terminating parental rights. Foster children become collateral,
mortgaged to secure the debt for their own care.
Elaine Rauscher placed her three children in foster care because she was unable to support
them. Her husband had left her, the children's father wasn't paying her support, and severe emotional problems rendered her
incapable of holding a job. What happened next? The Post-Dispatchexplains:
A year later, Rauscher's financial condition was even worse, in part because she was running up a bill of $261 a month for
the cost of her children's foster care. She believed that the children would not be returned to her unless she repaid the
state for the cost of their foster care. So she voluntarily terminated her rights to the children, and they were adopted.
Today, Rauscher and her husband, with whom she has reconciled, are paying for those foster-care
costs. Their state income tax refund for last year - $83.63 - was seized last week to help pay off the balance of $3,890 that
Rauscher owes for the 18 months her children were in foster care.
"Very few states
have really thought this through," said Mark Hardin of the American Bar Association's Center on Children and the Law.
"If you set the amount too high and it becomes impossible for the parent to meet, it may become
counterproductive," Hardin explained. "This is a very interesting policy issue that has not had the attention that it deserves."
Elaine visited her children frequently, and said that she had tried to follow a service plan
drafted for her by her caseworker. "Among its requirements were that she get personal and marital counseling, seek a job,
maintain a home and contribute to the children's support," the Post-Dispatch explains.
She met with her social worker to discuss her progress in meeting the service plan. During the meeting, she decided
to voluntarily give up her parental rights because the worker told her that the agency would move for an involuntary termination
unless she could pay the foster-care bill.
"She put a price tag on the children," she
2010 ruling by the Court of Appeals of Indiana concerns a father who, notwithstanding some initial resistance on his part,
had successfully completed all of the terms of his reunification plan. The terms of the plan were that he:
visit with the Child;
- (2) submit to random drug screens;
- (3) complete a parenting
assessment and follow all recommendations;
- (4) complete a psychological evaluation and follow all recommendations;
- (5) maintain stable employment;
- (6) remain drug free;
- (7) maintain consistent
contact with the DCS; and
- (8) establish paternity.
his reunification elements, right out of the cookie cutter. All seemed to be going well enough until the foster parents filed
a motion with the juvenile court seeking to adopt the child. The juvenile court granted their motion, in part because the
father had not paid his child support obligation in full.
His economic problems apparently
stemmed not so much from a lack of diligence on his part, so much as they stemmed from economic downturns. The father had
a had a construction business, but his business failed in 2006. He also owned some rental properties, but those were foreclosed.
The father also tried to do handyman work, however he had little business in 2007.
an unusual alliance, both the father and the Indiana Department of Child Services appealed the juvenile court's adoption order.
Indeed, the DCS family case manager had testified that father had a long history of supervised and unsupervised visitation
leading up to overnight visitations, and that she had no concerns for "the child's safety and wellbeing" in the father's care.
Hinting at a possible bias on the juvenile court's part, the Indiana Court of Appeal overturned
the adoption, citing its own Supreme Court as having ruled that:
a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing
evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with
a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will
not be overcome merely because "a third party could provide the better things in life for the child." 
No two cases are entirely alike. Unexpected twists and turns often occur
as they progress, and shifting allegiances among players in courtrooms may yield tremendous impacts on ultimate outcomes.
To give credit where credit is due, the caseworkers appear to have admirably performed their jobs, in this particular case.
It was the ambiguity of the "best interests" standard as interpreted by the juvenile court judge that proved to be the father's
Unexpected twists and turns are to be found in a recent ruling issued by the Nebraska Supreme
Court, striking down efforts by the state's child welfare agency to maximize revenue by refusing to allow the adoption of
a child. Her mother had sought to relinquish her parental rights, but the state's Health and Human Services System would not
allow it due to financial considerations. As the Court explains:
It is clear
from the record that DHHS declined to accept the relinquishment of parental rights because one of the parents was paying a
"pretty substantial amount" of child support which partially offset DHHS' cost with respect to Gabriela's care. While conservation
of public resources is a worthy objective, it cannot justify the legal perpetuation of a parental relationship which no longer
exists in fact, thereby permitting an abandoned child to linger indefinitely in foster care. We agree with the observation
of the juvenile court that the position taken by DHHS has made Gabriela a "de facto orphan."
As child support obligations are typically based on income, and the majority
of children in foster care come from impoverished homes, other funding streams, such as Title IV-E, Medicaid, and SSI typically
provide more lucrative streams from which agencies may draw reimbursements to offset their operating costs.
Daniel Hatcher explains that of the total amount of foster care costs the states recover, far more stems from taking
children's Social Security benefits rather than from enforcing child support obligations against parents.
Washington State, for example, recovered approximately $7 million in foster care costs per year by becoming the
representative payee for foster children's Social Security benefits, while the state had only recovered approximately $790,000
in foster care costs per year by enforcing child support obligations.
What distinguishes this case from the majority is that there was a "pretty substantial
amount" of child support available to be garnered from the parent. Simply put, it was more lucrative for the agency to maintain
the child in foster care, rather than free her for adoption. So much for the "best interests of the child" being the determinative
Before dismissing the notion of a delayed adoption for reasons of a pecuniary
motive as being either too far fetched or too uncommon, consider that Conna Craig notes that in her home state of Massachusetts
child welfare agencies are known to defer requests for termination of parental rights until children reach the age of seven,
as at that age children are deemed to have "special needs" for which child welfare agencies may claim additional federal reimbursements.
A report issued by the Office of the Public Advocate for the City of New York
clearly bears out the perverse financial incentives:
Conversations with parents,
caseworkers and foster parents underscore the concerns of advocates that despite increasing accountability, financial considerations
still drive the system. Foster care agencies get paid on a per-diem basis, which essentially means that the longer children
remain in foster care, the more the agencies get paid. With less children coming into care, this can add to pressures on the
agency to delay either reunification or adoption.
Efforts are underway in Nebraska to further maximize revenue by targeting
child support enforcement in a programmatic manner.
Relatively speaking, these funds are
a drop in the proverbial bucket, nevertheless: "The state treasurer is responsible for receipting and disbursing child support
payments. The Health and Human Services System is responsible for providing the state treasurer with distribution instructions
for the disbursement of child support," according to the state's summary of executive state job positions.
Under the federal Assistance for Unemployed Workers and Struggling Families program,
Nebraska is to receive $10,300,000 in federal funds that provide "for the state to receive reimbursement of federal funds
at 66% for state child support program expenses during the time frame from October 1, 2008 through September 30, 2010," according
to Recovery.Nebraska.gov - a government web site apparently devoted to the state's revenue maximization efforts.
Termination of parental rights typically ends the child support obligation. But
some would have it otherwise. A report issued in 2004 by the Texas Select Committee On Child Welfare and Foster Care notes
that: "Currently, a judge can order child and medical support payments from the biological parents up until the parent's rights
have been terminated. The Committee recommends extending the court's ability to order child and medical support payments even
upon termination of parental rights, up until the time the child turns 18." The Committee continues on to explain:
Child support orders should be monitored from the day issued and the Office of Attorney General
should expedite the filing of support enforcement actions any time that a child support payment falls 60 days late. Any time
a child is removed from their home due to abuse and/or neglect, the financial costs of caring for that child should still
remain the priority of the biological parents. The taxpayers of this state should not have to pay for the inability of parents
to serve the best interests of their children.
The cruel irony in this proposal is that many parents who may not have
abused or neglected their children at all may nevertheless find themselves having their parental rights terminated on the
basis of their inability to pay child support, and being forced to maintain the burden of reimbursing the state for the costs
of housing children that are legally no longer theirs.
Kansas likes to credit itself as being a shining model for
the rest of the nation by virtue of the state's privatization initiative. The report issued by the Legislative Division of
Post Audit reveals just what an "exemplary" child welfare program the state actually has.
In Kansas, in at least some cases the terms of the reunification plan aren't disclosed to parents, making it virtuallyimpossible for
them to successfully complete it. In some other cases, reunification terms may be modified or added in a similar manner with
the same result. And, with so many decision-makers working behind the scenes, it may be difficult to ascertain just who is
pulling the proverbial string.
"In one case, a deputy county attorney appeared to have
made a decision that affected a family's chance of having the children returned home, but the family wasn't informed," the
Division's report explains. "A social worker confirmed the deputy county attorney told her he would not recommend to the judge
that the children be allowed to return to the family until another person living in the house moved out. This requirement
wasn't included in the case plan, nor was it included in a judge's order. As a result, the family didn't know whether this
was a condition that needed to be achieved before the deputy county attorney would support reunification."
Other concerns were raised about the system in general as well, and in some instances these were repeated by unrelated
parties. Among these concerns, drawn directly from the report:
Officials didn't investigate cases thoroughly enough before deciding children needed to be removed from the family,
including not interviewing enough people, not investigating an allegation against a parent, and not completing appropriate
inspections of parents' homes
Officials lied in courts and falsified official documents, including contractor reports to the courts containing false
information, the child in need of care petition containing false information, and staff lying about receiving and sending
documentation and manipulating records
Officials allowed bad things to happen to children while they were in foster care, including not getting adequate medical
care, getting pregnant, and contracting a sexually transmitted disease
Officials wrote case plans that placed unreasonable requirements on parents to get their children back, including requiring
parents to complete unreasonable tasks such as taking drug tests or attending counseling sessions during normal work hours,
and continuing to add case plan tasks in order to delay or prevent reunification
SRS and contractor officials didn't follow court orders, including not following an order to return a child to the parents'
home, and not following an order requiring periodic drug tests
Officials didn't consider placing children with family relatives rather than in foster care, including not considering
Officials improperly billed parents for child support, including charging parents too much for child support, not providing
an itemized bill for child support costs incurred, and agreeing to settle for a lesser amount only if that amount was paid
within two days.
There is more to be found in the Division's report. Among
the concerns expressed about the court system: Judges acted inappropriately or showed bias in making decisions, including
not allowing witnesses to testify and placing children for adoption without SRS involvement; Judges decided the outcome of
cases before the hearing, including holding meetings about the case outside of the courtroom without the families' involvement;
Court officials didn't allow parents to have access to certain records, including denying parents access to all court records,
losing certain records, and court transcripts being incomplete; Judges removed children from home without a legal basis, including
removing children who were not substantiated for abuse and neglect, and removing children without the parent or child acting
The concerns involving attorneys included: Court-appointed parent attorneys
provided inadequate legal representation, including not being present during hearings, being incompetent, and coercing parents
to relinquish their parental rights; Parents disagreed with how the attorneys handled their case, including disagreeing with
the legal advice they received and attorneys not calling witnesses to testify or filing appeals; District or county attorneys
didn't file and prosecute criminal charges when they should have, including district attorneys not filing sexual assault charges
when evidence to prosecute existed; County attorneys taking action outside the courtroom to influence the outcome of cases,
including sending messages that certain actions must be taken before children will be allowed to return to the family.
It has been suggested in some circles to
transfer the task of investigating abuse and neglect to law enforcement officials, the typical presumptions behind the argument
being that police are presumably better trained in investigatory techniques, and perhaps at least somewhat less inclined toward
performing social work of a defensive nature.
Before rushing off to pass that torch from one bureaucracy to another, consider
the concerns expressed about law enforcement officials in the Divisions' report: Local law enforcement didn't investigate
thoroughly enough before removing a child from a home, including not interviewing witnesses, and not completing appropriate
inspections of parents' homes. Law enforcement removing children when they shouldn't have, including removing children without
adequate reason, over-reacting to situations, and removing children for reasons not allowed by statute.
It has become the
cruel fashion of our times to systematically target poor families for permanent severance of their family ties. Toward this
end, the state of Arizona established a "Severance Project," while Kentucky established a "Termination of Parental Rights
Project." To implement the Kentucky initiative successfully, program officials believed that it was necessary to have the
long-term and active involvement of "key officials at all levels, including the governor, legislators, and agency officials
as well as caseworkers, service providers, attorneys, and judges." This participation was deemed "essential to define the
problem and reach consensus," and accomplishing this end "required considerable coordination [of] efforts and an extended
commitment of resources."
In April 1986, Arizona enacted a bill providing funds for hiring
"severance specialists and legal staff to work on termination cases." The following year, the state implemented the Arizona
State Adoption Project. This project focused on identifying additional adoptive homes, including recruiting adoptive parents
for specific children and contracting for adoptive home recruitment activities. Kentucky's Termination of Parental Rights
focused on reducing the time required to terminate parental rights once
this permanency goal was established. This effort included retraining caseworkers, lawyers, and judges on the consequences
of long stays in foster care and streamlining and improving the steps caseworkers must follow when collecting and documenting
the information required for the termination procedures.
When in our modern times it became fashionable for the courts of appeal
to uphold the termination of parental rights for reasons of poverty is difficult to determine with precision. In Texas, however,
the date was February of 1987, and the venue was the Court Of Appeals, Fifth District Of Texas. In his dissent in In
the interest of S.H.A.Justice Devany observed:
when we are faced with an
economic depression and parents cannot provide adequate food for their children, under the majority holding, termination will
be justified. The majority has enacted law that in a time of poverty parental rights will be terminated. The majority will
have the state become a "big brother" form of government of such supremacy that it can destroy the very base of freedom and
democracy in this country by destroying the family.
Notwithstanding the continued rhetoric involving family preservation,
the system has continued to evolve in just the opposite direction, and this is due in no small measure to legislative enactments.
Concerning proposals to amend the child welfare statues in Utah in 1994, Judge Arthur G. Christean explained:
While the 1994 Act pays lip service throughout to preserving family ties, its design and policy
pronouncements indicate otherwise. An objective analysis of the content of the legislation, and the manner in which it has
been implemented to date, indicates clearly that its basic aims are not topreserve family ties, but rather to sever
them as quickly as possible in order to protect children from the risk of neglect or abuse, and to redistribute those
children over whom the state can exercise authority from less deserving biological parents to more deserving adoptive parents.
Indeed, the Act's dominant emphasis on speed and certainty in achieving these results, above
all other considerations, is readily apparent. Further, the Act's design and language also seems to serve as a useful way
for the state to officially support worthy foster parents by expediting the adoption process for children placed with them.
"In order to accomplish these broad social purposes on behalf of children, the judiciary is
enlisted as a necessary if not willing accomplice. There are numerous examples of a misunderstanding of the proper function
of the judiciary throughout the legislation," notes Judge Christean, adding that:
of much greater importance than the matter of poor drafting or inappropriate placement of code sections is the implicit
acceptance throughout this legislation of the role of the juvenile court as an instrument of social policy in general, and
the enforcement arm of the Division of Child and Family Services in particular, rather than as an independent tribunal to
do justice by deciding each case on its merits on the strength of the evidence presented.
Judge Daniel Leddy, who served more than three years as the sole judge
on the Foster Care Review Term, a citywide forum charged with reviewing the status of children voluntarily placed in foster
care in New York City, writes: "Cover your backside! It's standard operating procedure for Family Court judges who want to
stay in the good graces of the powers that be, the institutional honchos and other bigwigs who flex their muscles at reappointment
time to make or break judicial careers."
"It's also an unconscionable betrayal of the
public trust, particularly for defenseless children who bear the brunt of judicial cowardice," Leddy adds.
He explains that virtually no cases were actually brought on time, and that most were late by several months. "One
Staten Island kid was in foster care for an incredible seven years and had never had his case reviewed by a judge, a truly
shocking violation of law," he notes. Such was the nature of the bench that he'd inherited. Judge Leddy continues on to explain
judges were the real culprits for having allowed the court to be reduced
to the status of a rubber stamp for whatever the agencies wanted. Abdicating their judicial responsibility to children, they
worried more about offending agencies, including the city's child protective service, the umbrella agency. That, of course,
is the mayor's agency, the same mayor who makes Family Court appointments and reappointments.
Family Court judges cover their backsides other ways too. Juvenile delinquency proceedings? Convict the kid. Neglect
or abuse cases? Put the child in foster care.
If he's harmed there,
the city is a convenient scapegoat. Agencies' disregard for judicial orders? Let them slide. Children languishing in foster
care pose no threat; lawyers representing these agencies, including the mayor's own attorneys, can sabotage a judge's reappointment.
"Sure there were some phenomenally good caseworkers. The only problem was that they get so burned
out by the malaise around them that they rarely lasted very long. And there were some courageous Family Court judges too,
exemplary jurists who never forgot that every foster care file represented a young life in crisis. Those were the judges with
bulls eyes on their backs," he writes.
Martin Guggenheim - who is credited among other accomplishments as having successfully
argued Santosky v Kramer before the US Supreme Court - views the current era in child saving as "a grand
human experiment" that he believes will be looked back on 50 years from now "as a very dark period in our history, which we
will have condemned as a mistaken way of treating children and their parents."
To be sure, not all parents are picture perfect. Tina Marie Walters is the mother
of four minor children, and she was at one point during her case incarcerated pending charges involving theft, burglary and
possession of marijuana. Her family was caring for her children at the time. She eventually got out of prison, and tried to
turn her life around, and to rebuild her fractured family. As the Louisiana Court of Appeal explains:
After reviewing the interaction between the Department and the Walters family, it is difficult to find that the
Department exerted reasonable efforts to reunite this family. The Department's actions show only minimal assistance was rendered
to Ms. Walters to redress identified problems; rather, the Department's plans reek of administrative convenience apparently
designed to keep the children in foster care while placing practically insurmountable hurdles between them and their mother.
Ms. Walters was forced into a cookie-cutter program allegedly designed to ameliorate problems in her parenting ability and
bring her parenting skills closer to the Department's vision of the norm.
Department argued that Ms. Walters did not benefit from the programs and plans it assigned for her. The Court pointed out
that the legal standard is not "benefit," rather it is substantial compliance. Hence, the Department's emphasis on whether
she benefited from the case plans was misplaced.
The Court explained that: "Clearly, Ms.
Walters substantially complied with the case plans: she has adequate living arrangements, has tested negative for drugs, is
earning a stable income, and has maintained close relationships with her children. When, after a parent substantially complies
with the Department's demands and conforms to its expectations, the Department finds the results unsatisfactory, then the
fault most likely lies with the demands rather than with the parent. The failures identified by the Department are more indicative
of deficiencies in its programs and case plans than in Ms. Walters' abilities."
that single parents are frequently targeted by social service agencies, the Court found that: "The Department has virtually
unfettered control over when or if a child is removed from the foster care system and restored to his parent's custody. Considering
these factors, it is not at all certain that the reunification of the Walters family stalled due to Ms. Walters' dereliction
in complying with the case plans. The facts suggest that the delay stemmed, at least in part, from the Department's nebulous
case plans, vacillating goals and misdirected assistance." After an exhaustive review of Walter's the case, the Court sternly
While the Department is powerless to mandate the sterilization of
poor, uneducated single women, its insidious plan of terminating the parental rights of these women, largely because of their
financial, educational and marital status, compels essentially the same result. In so doing, the Department has abdicated
its role as the champion of family unity and child protection and has instead become an adoption brokerage which strips poor,
uneducated women of their children in order to place them with more affluent, or less impoverished families.
The Court ultimately concluded that: "Taken to its extreme, a practice premised upon a myopic
comparison of families would mandate the extraction of all children from the homes of impoverished and undereducated parents
in favor of placement in homes of only those persons with high intelligence who can assist them with their schoolwork, with
the financial means to provide a nice home and fashionable clothes, and who can afford to stay home and personally supervise
A Florida case involved the termination of parental rights of a mother who failed
to comply with the terms of her service plan due to diminished mental capacity, notwithstanding that it was s by all parties
that she had "never abandoned, neglected, or abused her child."
In a stinging dissent,
Justice Cowart of Florida's 5th District Court of Appeal wrote: "While the best interests and welfare of the child is the
sole guide in legal controversies relating to a child's custody, it has no proper place when the issue is the permanent termination
of parental rights. The reason should be obvious. It is in the best interest and welfare of every child to have the best possible
parents." He continued on to explain:
Whatever criteria are used to measure the
desirable characteristics of ideal parents, obviously one-half of all parents are superior to, and better than, the other
half. Any rule of law permitting the government to permanently terminate natural parental rights based on the best interests
of the child will justify the government in taking all children away from the less adequate half of all parents and giving
them to the other, "better," half. Under such a rule of law the government need merely say: "Look, kid, we will find you some
These points were not lost on Chief Justice Charles Springer of the Nevada
Supreme Court. Springer has observed that there is "a recent epidemic" of terminations of parental rights of poor and handicapped
"As I have indicated in my dissents to other termination cases, the state seems
to be running amok, spouting pop psychology and terminating parental rights in cases where it is clearly not necessary to
do, particularly in cases of poor and otherwise handicapped parents," Springer wrote in one dissenting opinion, while in another
still, he explained:
the State's modus operandi appears to be to go into the
homes of handicapped, powerless and usually very poor parents, remove their children (almost always without the parents' having
counsel) and put the children into the home of substitute parents who are more affluent than the natural parents and more
pleasing to social service agents than the natural parents. After the children are taken out of the home of their natural
parents, the State imposes upon the natural parents a "reunification plan" that is frequently beyond the capacity of the parents
to deal with. After the natural parents flunk the reunification test, the State files a petition to cut the natural parents
off from their children permanently, and to "free them for adoption" by the Welfare-qualified, substitute parents - all under
the shibboleth of "the best interest of the child."
Springer has written of what
he describes as the "state's child-devouring juggernaut," in which children are taken away from their parents only because
they are poor. When child-rearing problems arise, Springer notes the problem of poverty is "rarely addressed," rather the
state seeks to assign blame, thus "permanently depriving the children of their natural parents."
Reunification plans are ostensibly intended to eliminate the conditions leading
to placement, and to ultimately reunify families. Instead, they have have become a critical part of the arsenal used by child
protection agencies to destroy them. The process of collecting and documenting the information required for the termination
procedure often takes place during the critical reunification stage. Experts testifying against families in courtrooms are
frequently the same ones that the parents were compelled to attend services with as a part of their mandated plan. And, without
their testimony the state would often have no case against them.
This point was not entirely
lost on the Nebraska Foster Care Review Board, which, as discussed above, candidly admitted that "no plan can mean children
remain in out-of-home care without permanency because the professionals cannot build a case for termination of parental rights."
The reunification plan has evolved into an insidious cover used by child protection agencies
to construct strong cases against parents where they may have had marginal ones to begin with. Held captive by the terms of
their mandated plan, their civil rights suspended, and their family under the microscope by virtue of court-sanctified agency
"supervision," parents are most effectively compelled to participate in the destruction of their own family.
Copyright 1996 - 2010, Rick Thoma
Next | Index | Home | Footnotes
Last Updated October 2, 2010