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:

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:

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:

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-Dispatch explains:

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]

A July 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:

  • (1) 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.

There were 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.

In 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:

before placing 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." [35]

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 undoing.


REVENUE MAXIMIZATION

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."[36]

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.[37]

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 factor.

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.[38]

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.[39]

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.[40]

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.[41]

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.[42]

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.


THE MODEL STATE

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 virtually impossible 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 grandparents

. 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 inappropriately.

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.[43]

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.[44]

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.


CONCLUSION

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 Project:

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.[45]

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.[46]

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 to preserve 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.[47]

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 that:

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.[48]

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."[49]

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.

The 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."

Noting 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 pronounced:

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 them."[50]

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 better parents."[51]

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 parents.

"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."[52]

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