Reunification Plans:
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.[1]

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.[2]

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:

the worker 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.[3]

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 back

 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."[4]

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:

• (1) 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;
• (7) 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
• (9) that appellants maintain a working telephone in the residence at all times.[5]

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."[6]

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."[7]

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."[8]

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."[9]

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.[10]

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."[11]

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."

The practical 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.[12]

PLANNING FAILURE

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 involved."[13]

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.

The system 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."

His report 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.[14]

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 father.

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."[15]

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;
• attending therapy;
• submitting to random urinalysis testing;
• attending parenting classes;
• presenting a budget and receipts for the timely payment of her bills;
• enhancing her time management skills;
• maintaining a healthy lifestyle;
• maintaining her home in a condition suitable for visits;
• engaging in positive family activities;
• maintaining communication with service providers;
• 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.

Nebraska's Supreme 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."[16]

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."[17]

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 explains.

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.[18]

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 the state:

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 skills

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.

The Office 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.[19]

PREVENTIVE INTERVENTION

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 care."

"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."[20]

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 this requirement.[21]

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.[22]

PERSONAL BIASES

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."[23]

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.[24]

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 HRS;
• (7) follow reasonable requests and recommendations of the supervising counselor;
• (8) 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 of time."

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.[25]

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.[26]

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 services.[27]

EXPERT TESTIMONY

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, writing:

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.[28]

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 to them.

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."[29]

BYPASS SURGERY

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:

In In 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 explains.

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," Wasow explains.[30]

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.[31]

"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:

A cornerstone 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.[32]

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."

The 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.[33]

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 said.[34]