Thursday, June 16, 2011

Alabama Supreme Court Decision Discusses the Best Interests of the Child

While this decision is not a child welfare case, it is exceptionally instructive into the legal principle known as the "bests interests of the child" and the improper application of that standard in the context of the presumption of parental fitness.

In this case, the parents decided that their children should not be permitted to see their grandparents. The grandparents petitioned the court for visitation under an Alabama statute which gives grandparents the right to petition the court for visitation rights with their grandchildren. The trial court granted visitation pursuant to the statute. The appeals court overturned, citing the grandparents did not prove that the children would be harmed by being denied contact with their grandparents. The Supreme Court affirmed the appellate court decision but for different reason.

The Alabama Supreme Court found the statute to be unconstitutional in its entirety.

The law on parental rights is exhaustively discussed in this decision, detailing the lineage of the law from the beginning to the current status of the rights of parents to make decisions regarding their children.

It emphasizes that the law clearly states a parent is presumed fit, and under that presumption, the state cannot even reach a decision regarding the best interests of the child. Because the Alabama grandparent visitation statute ignored the presumption of parental fitness and ignored the fact that the state has no right to second guess a parent's decisions or to substitute stated decisions for the parent's decisions absent a finding of parental unfitness, the statute was found to be unconstitutional.

This principle applies equally to child welfare agencies during a child abuse/neglect investigation and case. If one were to substitute "child welfare agency" for "grandparents," the case would read like a user manual for the proper administration of child welfare cases.

I particularly found the concurring discussion about how the institution of the family predates government to be encouraging. AFAC has been making this argument for nearly twenty years, and it is heartening to see a jurist who gets it.

Ex Parte Erg and Dwg Al

Monday, June 13, 2011

Surprising Twist in CPS Case Involving Psychotropic Drugs

The online Family Rights groups are all abuzz with this story from Texas.

The not-so-astute leaders are rallying the masses, calling this case a victory. They just don't get that it's not a victory.

The article reports that CPS was adamant about terminating the parental rights. This is obviously in error.

When this hapless child was seized, it is obvious her permanency plan was reunification, because the agency imposed a treatment plan upon the parents. It is also mandated by law that the permanency plan be reunification unless there are aggravating circumstances, such as sexual abuse or the serious injury or death of a child/sibling.  Regardless of how they administered this case or threatened the family, the permanency plan was--officially-reunification, and the agency had to go through the motions consistent with that goal.

So the child is returned to her parents at eleven months into the case, based on "the parents doing all CPS had asked them to dan and months of negative drug tests" indicating this case was treated exactly like all other cases.  Permanency is, by law, mandated to happen at twelve months. So if they could not make the case for termination of parental rights, they had no choice but to reunify. Trust me, the County Attorney saw the handwriting on the wall, and decided to posture graciously in his utter failure to permanently snatch this child from non-abusive parents for redistribution into a state-approved home.

In this case, taking eleven months to return a child that was never demonstrably harmed by her parents is unconscionable, and cannot credibly be claimed as a victory. The child that was finally returned to her parents is not the child that was taken. She has been harmed, grievously harmed.

This child was placed on a cocktail of chemical restraints to control her behavior while in foster care. Can you imagine what kind of foster care givers would get fed up at her crying and night terrors or whatever acting out she did because she was taken from her mommy and daddy who loved her and have the child drugged into a stupor? What kind of doctor would even prescribe this treatment without first exploring why the child was so traumatized and advocating to treat the cause rather than the symptom? This goes against all standards of medical and psychological professional practice, yet is normal procedure when foster children are involved.

She didn't see her parents for months, despite the fact that her isolation from them obviously caused her problems. Is it any wonder that aggrieved families judge CPS as being callous, heartless, abusive and in it for the money?

This was no victory, and any organization that sees it as a victory is incompetent and profoundly ignorant. This child is damaged for life.

Putting a child on cocktails of mind-altering drugs while the brain is forming it's critical connections and pathways is barbaric. Drugging her into a stupor so her foster care givers could manage her trauma according to their own convenience is not in the best interests of the child, it is in the best interests of the government. There could be no more graphic illustration of this perversion of the letter and intent of the child welfare law.

The real tragedy is that this injustice could have been truncated or aborted if the attorneys for the parents or the child did their jobs right.  But they often don't do their jobs right, the risk to their professional practice caused by vigorous advocacy is too much of a threat for most to overcome. The lawyers in these cases should be sanctioned, but, if past patterns hold true, they will undoubtedly earn a judgeship for their incompetence and fear.

This child has a viable cause of action against the state of Texas. Much more viable than the parents have. I hope they pursue it, because she's going to need all the help she can get for the rest of her life.