Numerous Checks Fail

One of the amici in Greene v. Camreta included this observation in their amicus brief:

Children's Advocacy Institute
". . .the system in place includes numerous checks to protect the rights of suspected parental abusers, including required “reasonable efforts” not to remove a child; a detention hearing before a neutral court with the burden on the State to show child danger; appointment of counsel for all involved parents;mandated “reasonable efforts” to reunify; jurisdiction hearing; disposition hearing (pendente lite); review hearings; and permanent placement hearings – all before the judiciary, and including liberal rights of appellate review."

CAI is absolutely correct. Congress has provided these checks in order to prevent the unnecessary removal of children from their family homes and to protect family integrity and privacy.

Do they work? In theory, yes, they do. In practice, rarely. Why? I'm so glad you asked. . .what you will read here is the result of twenty years of observation and analysis of this cases in courtrooms around the country. Yes, even in states with closed courts, I get in.

First, permit me comment on the grammar, ". . . protect the rights of suspected parental abusers. . ." They are accused of child abuse, not parental abuse. Suspicion of child abuse when one is only accused indicates a predisposition to presume guilt, a principle at odds with our judicial traditions. But the entire child welfare system is administered in a manner that initiates find shocking to our time-honored notions of justice.

So, let's move on to the checks, point by point.

1. " including required “reasonable efforts” not to remove a child" (tsk tsk tsk. . .the grammar again-a lawyer wrote this? Don't they have to have a certain degree of competence in language skills?) Congress has mandated the state make reasonable efforts to prevent removal. This means providing services intended to eliminate the risk of abuse and keep the child safely in the home. This can be as simple as removing the offinding parent from the family home. Yet this fails as a matter of usual practice, or even under the auspices of "best practice."  
1.  It fails because the caseworker did not/refused/neglected to offer any services to the parent that would keep the child safely in the home. Futhermore, the caseworker will refuse to accept any alternatives offered by the parents. But the caseworker will recite the proper incantation in her court documents, "reasonable efforts were made to prevent removal" without detailing what those efforts were and why they failed, as Congress has mandated.
2. It fails because the judge--who has the duty to require the agency to provide proof of reasonable efforts, doesn't require it, as Congress has mandated.The judge has the authority to require this sua sponte, but let's suppose this judge is particularily lazy/busy/biased. If the judge fails, there are two or three other participants whose job it is to give the judge a reason to find that reasonable efforts were not made.
3. It fails because the Guardian ad litem (GAL) refuses to demand the caseworker--the maker of the report--be placed under oath and testify to the services she offered and why they failed to prevent removal, as Congress has mandated. Futhermore, the GAL refuses to object to the court's finding that reasonable efforts were made without a shred of evidence in the record to support that finding. 
4. It fails because the respondent parent attorneys refuse to demand the caseworker --the maker of the report--be placed under oath and testify to the services she offered and why they failed, as Congress has mandated. Futhermore, the respondent parent attorneys refuse to object to the court's finding that reasonable efforts were made without a shred of evidence in the record to support that finding. 
5. Conclusion, is has been rendered impotent as a check on agency conduct with the express consent of all participants. 
2. "a detention hearing before a neutral court with the burden on the State to show child danger" This is correct. Yet this fails as a matter of usual practice, or even under the auspices of "best practice."  
1. The agency makes the allegations of the danger unopposed and without being under oath.
2. The judge wants these hearings over with quickly. He gets testy when a parent demands an evidentiary hearing. Even if he grants the evidentiary hearing, the parents are only permitted a brief amount of time to contest the danger. They are often denied the right to call witnesses and present evidence. In practice, it is a sham proceeding.
3. The GAL does not demand the caseworker be placed under oath to cross-examine her report. The GAL has the right and the duty in his capacity as acting in the best interets of the child to challenge everything the agency does and recommends. In practice, GALs appear as bobble heads to rubber stamp all agency findings and recommendations. GALs endorse the sham proceeding.
4. Respondent parent attorneys (especially court appointed) prepare for a hearing!? Hello! They advise their clients not to contest the removal of the child nor demand a contested detention hearing. "Just cooperate and you'll get your kids back." Besides, they have a number of other hearings today and are too busy running from one courtroom to the next for their five minute hearing. They claim they don't get paid enough to represent their clients at contested hearings. And if they are court appointed, they don't get paid enough, but they did sign up for the ~$700 flat fee so they lose all right to complain about their pay. If the parents dare to show up with evidence and witnesses, their attorney threatens to withdraw. They facilitate the sham proceeding.
5. Conclusion: A sham proceeding is devoid of any power as a check and balance to the state agency's acts.
3. "appointment of counsel for all involved parents"  True, again. But what good is appointed counsel if counsel refuses to provide competent representation?
1. For example, appointed counsel always tell parents, "cooperate with the agency." If a criminal attorney told a defendant,"cooperate with the DA," he could be sued for malpractice. 
2. For example, if the parents refuse to comply with his recommendations to waive all the shelter hearing, admit to the petition and do whatever the agency demands, the attorney moves the court to withdraw. The court grants him motion to withdraw, and refuses to appoint counsel to replace him. In fact, if the parents demand the degree of self-determination mandated in the statutes, complain about abuse in foster care, demand more frequent and meaningful visits and speedy reunification, the lawyer withdraws. 
3. The GAL is appointed for the child, and only serves to rubber stamp the agency findings and recommendations. Talk about stacking the deck in favor of the agency. . .
4. Conclusions: Counsel that acts a court-appointed facilitator to agency demands is devoid as a check and balance to state agency conduct.
4. "mandated “reasonable efforts” to reunify; See #1 above.  
1. What good is a check that has been reduced to a check box and incantation? It is devoid of any power to check agency conduct with the express participation of all participants.
5. "jurisdiction hearing" which is another name for the adjudicatory hearing, where the court finds the children are dependent and neglected and brings them under the jurisdiction of the court so the agency can provide services.
1. Does anyone remember me telling you the attorneys recommend the parents to admit to the petition or they will withdraw?
2. There are almost never adjudicatory hearings. In Colorado, out of over three thousand petitions filed a year, there are less than ten jury trials for this hearing and there are a few more to the court. If parents are coerced to waive these hearings by their attorneys, or threats of retaliation by the agency, what good is having the option? 
3. Before you get snotty and say the parent should just resist, just stop and think how strong your resolve would be if your kids were in a hostile stranger's home and visitation was being withheld for your admission to the petition?
4. If the parents are strong in their resolve, the attorney withdraws, and the court may or may not appoint a replacement and the hearing is delayed by as long a year, all this while the child remains in foster care; or, the attorney does not effectively represent the parent and the parent loses which results in another sham proceeding.
5. The GAL also has the right to demand a contested hearing on behalf of the child, but I've never heard of this happening.
6. If through coercion and threat, the parents waive this right, or if the hearing is reduced to a sham proceeding, it fails as a check and balance to state agency acts. 
6. "disposition hearing (pendente lite)" This is where the case plan is ordered by the court. Services are:
1. Uniformly inappropriate services based on a one-size-fits-all boilerplate plan,
2. proffered by incompetent, cut-rate providers, which do not conform to the standards of the profession or which encompass untested or questionable theories, and
3. not intended to address the legitimate issues that brought the children under the jurisdiction of the court. 
4. Parent and child attorneys refuse to contest the agency recommendations, or to demand a contested hearing, or to even challenge the fact that the parents were not permitted to participate in the formation of the case plan as the law mandates. 
5. Conclusion, if the hearing is reduced to yet another sham proceeding, it fails as a check and balance to the agency conduct. Once again, this could be resolved IF counsel or GAL were to demand a contested hearing instead of coercing the parents not to piss off the caseworker by challenging any service she recommends. 
7. "review hearings" Yes. . .every six months, AFTER the adjudication which the soonest that can occur is sixty days after removal. 
1. These cases go to permanency at twelve months. Pretty meaningless in the scheme of these cases. It usually means one review hearing before the permanency hearing. . .which brings us to. . .
2. Once again, these hearings are merely a pro forma exercise at paper shuffling, sham proceedings which do nothing as a check and balance to agency conduct. 
8. "and permanent placement hearings" – at twelve months after removal. Most kids don't get home before this hearing. Half of them never make it home. 
1. The agency presents their report and recommendations whether to return the child or terminate parental rights. Often, this information in this report is based on subjective information, and offers nothing measurable or objective to support the recommendations. 
2. GAL and parent attorneys do not want contested hearings, do not want to submit evidence or cross examine service providers or case workers. They act as rubber stamps for what the agency wants.
3. Conclusion: even if this weren't a sham proceeding, the damage has already been done with the faciliation of the court and attorneys for parents and children. It often cannot be undone, and the parents face termination of parental rights over fifty percent of the time.
9. "all before the judiciary," yes. . .but,
1. Judges get really testy if you contest anything the agency says, wants, recommends or demands. 
2. Who abhor contested hearings and parents being in denial, after all, any parent who wouldn't do anything the agency demands--regardless of the mertis of the demands--to get their child back must be a bad parent. 
3. who believe everything the agency says and believes all parents are liars and abusers. 
4. Who retaliate against attorneys who present a too-vigorous defense of the parents, by ruling against their other clients. 
5. Conclusion, if the judiciary are not fair and impartial, it renders this check and balance impotent.
10. "and including liberal rights of appellate review"  Form over substance. . .
1. You can only appeal issues that were raised on the record.
2. GALs and attorneys don't object, or preserve appealable issues. Remember, they advise the parents to waive all hearings, to admit, to comply. There is nothing on the record to preserve for an appeal. 
3. Conclusion: This is a meaningless option if the attorneys don't preserve the issues during the pendency of the case. 

 The checks and balances built into the child welfare process have been reduced to mere formalities that lack any substance. By the time of the hearing to terminate parental rights, the record reflects exactly what the agency wants it to reflect. . .without a hint that the entire process was a sham.