Texas, CPS, FLDS and The Professionals Can't Get it Right!

Alice F. Barlow will not sign the CPS safety plan, and CPS wants to retaliate and take her kids away from her. Supervisor Lyn McFadden stated no changes would be implement to the safety plan, in other word, take it or leave it and lose your kids, lady. Story and docs here.

The affidavit in support of the motion to take the kiddies away states, "Due to the ongoing joint investigation between CPS and Law enforcement, I [the caseworker, Paul Dyer] could not divulge all the facts CPS is relying upon in requesting that Dr. Lloyd Barlow have no contact with his children Virginia and Lynda." I told you so. . .Lawyers for parents and children are engaging in malpractice if they haven't moved the court to issue protective orders. Child welfare and criminal cases are totally different, have different goals. Protective orders protect the integrity of child welfare cases and serve the legislative purpose to protect children and strengthen the family.

For the record, folks, Dr. Barlow has NOT been accused of nor is being investigated for child sexual abuse of either of the two children named in the complaint. The motion for removal seems to be based largely on the allegation that he married a sixteen year old in 2001, without stating whether or not her parents consented to her marriage or whether a judge allowed it pursuant to the existing law of the time. What a convenient omission. For the record, my husband's mother legally married his father when she was sixteen. . .and had her first child within a year. She was a French citizen and my father-in-law was an adult American Airman stationed in France when they met and married. So what? Get a life, Paul Dryer. And that he failed to report child sexual abuse of his patients, for which he was indicted. I doubt that he witnessed any child sexual abuse. . .I apologize for being indelicate, but nobody has alleged he witnessed the actual alleged sex acts committed against a child that he was purported to be required to report. How can he legitimately report something he didn't actually see?

If course, CPS also must punish the mother for refusing to agree to CPS terms. . ."Alice F. Barlow shall not allow Llyod Barlow to have any contact, in any form, or being the presence of [his own children]. Alice F. Barlow shall notify Law Enforcement and Child Protective Services immediately if Alice F. Barlow discovers that Lloyd Barlow has had any form of contact with [his own children]," and "Alice F. Barlow shall prevent [her children] from being within 1000 feet of the location known as 'YFZ Ranch' in Eldorado, Texas."

Let's see. . .Mom, you can't live in your home town. We found a suspected-but-not-convicted sex offender living there so you must pack up and move. Yeah, right. Check your state sex offender registry, dear reader. How many of them live within a few miles of your home or your child's school? How many work in your child's school? How many, like Jeff Rentz in Colorado Springs, work for CPS? How would you like being ordered by a retarded caseworker to move or lose your kids for a reason as specious as this?

I must observe that there is less incriminating evidence of child sexual abuse against Dr. Barlow and less identified risk that he will abuse his little girls or even aloow them to be abused than there is against at least 50% of CPS licensed foster homes where these little girls have a good chance of being placed. Come on, CPS. . .this so-called safety plan is hypocritical and totally sto-opid will not protect the children. All you really need is an agreement that mom and dad will not marry off the little girls before they are eighteen. . .and ta-da. . .they are safe. I'll bet mom Alice will sign that one. Boneheads.

Good for Alice. I wouldn't sign that dumb safety plan either. I'd offer my own, just to prove reasonable effort weren't made. I hope her attorney and the children's attorneys know how to handle this. If not, she's screwed and it will cost her her children.

FLDS Fallout

We have 'experts' chiming in on the polys, and Marci Hamilton seems to have the answer! . . . criminalize child sexual abuse. No, really! Yes, even as I say this, my eyes are rolling.

She proposes to amend the RICO laws to include child sexual abuse. She evidently thinks religion is a racket like the mob is. . . and she doesn't appear to limit this to a religion that believes in plural marriage. She proposes:

First, amend 18 U.S.C. § 1962(c) to include the following bolded language:

It shall be unlawful for any person, or enterprise engaging in, promoting, or facilitating childhood sexual abuse or neglect, employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

Second, amend 18 U.S.C. 1961(1)(a), the definition of “Racketeering Activity,” to include the bolded language:

(1)“racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, engaging in, promoting or facilitating childhood sexual abuse or neglect, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year;

She also proposes to expand the injuries defined by RICO from only injury to business or property to add injury to the person, if a child sexual abuse victim. This would allow for triple damages in a civil lawsuit.

Now, I don't get it. How does plural marriage or a religious practice constitute a business operation? I mean, RICO must, by definition involve commerce. Well? ( yes, readers, she appears to be a lawyer. )

Based on her writings, she is not only targeting FLDS, but the Catholic Church, with its child molesting priest scandals that have been covered up by virtually all the powers-that-be until the requisite critical mass of victims could no longer be denied. Yet, with the FLDS we are talking about how many alleged victims? A mere handful? A few members of a community doing wrong? Just like in any other American community?

Moving on. . .she wants the states to eliminate statutes of limitations on sexual abuse allegations. Given the history of sexual abuse allegations, false memories, and the child saver mentality to believe the child no matter what, this is a horrifying prospect for anyone would would be falsely accused by a bratty child seeking to get his or her own way or a vindictive ex seeking to eliminate all challenges to custody! Many states have long statutes of limitations already. This is a thoughtless, knee-jerk reaction based on emotions. Typical of the child saver.

Finally, she proposes something that actually makes sense, and I could get behind this one:

Revocation of tax-exempt status for organizations furthering child abuse or neglect. Tax-exempt status for a charitable organization under the Internal Revenue Code shall be revoked by the Internal Revenue Service from any organization if it is found by a court of law in a civil or criminal case that the organization:

(a) Fostered the abuse of children,

OR

(b) Took steps to conceal the abuse of children,

OR

(c) Failed to report knowledge of child abuse or neglect to the relevant law enforcement authorities.

Finally, federal agencies should not be permitted to do business with any organization that furthers or fosters child sex abuse or neglect.

Given the plethora of private charities so poorly and callously administering child welfare, foster care and adoptions, this could completely booger up the child welfare works by making foster care safer than the family home, and in the process, eliminating all inferior foster care.

The largest segment of our population who sexually abuses children is the foster care business. And foster care is a multi-billion dollar interstate commerce enterprise.

Sometimes it's the foster caregivers doing it, sometimes it's the foster care-giver's kids molesting the foster kids, sometimes it's another foster kid doing the molesting, and sometimes it's a friend of the foster care-givers. But most of it happens in foster care.

This would be an excellent tool for aggrieved parents to use to shut down the foster care agency or group home that sexually abuses, allows, covers up, or fails to report sexual abuse of their children. Bring it on, Ms. Hamilton, I can see the decimation of private foster care and adoption agencies, group homes and, OMG, residential treatment centers for children and the subsequent reduction of out-of-home placements of children due to lack of homes and beds for placement.

But wait. . .back to the proposed RICO provisions. . .perhaps these foster placement agencies, group homes and residential treatment centers COULD be held criminally or civilly liable under RICO? RICO is a darned hard case to make and most courts toss RICO claims. . . BUT. . .while the RICO might not fly for a religion, it might fly for these non-profits.

Cool.

Texas, FLDS, Crimes and Misdemeanors

5 more arrested from Texas polygamist sect

AUSTIN, Texas -- Five indicted members of a West Texas polygamist sect turned themselves in to authorities Monday to face charges related to allegations of child sexual abuse.

The five men were indicted last week with Warren Jeffs, the already-jailed leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints. The charges stem from a state investigation into allegations that the sect forced underage girls into marriage and motherhood with much older men.

State authorities raided the FLDS's Yearning For Zion Ranch in Eldorado on April 3, eventually sweeping more than 400 children into foster care until the state Supreme Court said officials had overreached and sent the children home.

Raymond Merrill Jessop, 36, Allan Eugene Keate, 56, Michael George Emack, 57, and Merrill Leroy Jessop, 33, were charged with one count each of sexual assault of a child, a felony punishable by a sentence ranging from five to 99 years or life in prison. Their bond was set at $100,000 each.

Merrill Leroy Jessop also was charged with bigamy, a felony with the same potential penalties as the sexual assault charge.

Lloyd Hammon Barlow, 38, the ranch's onsite physician, was charged with three counts of failure to report child abuse, a misdemeanor punishable by up to six months in prison. His bond was set at $5,000.

I have a few comments about this, including the ones I raised in prior blogs about the church members submitting to the DNA testing, especially without protective orders in place on the CPS cases to insure that the results are not used in criminal prosecution. How else could these indictments have come about? And could those results be thrown out as unlawfully obtained for law enforcement purposes and for being the fruit of the poisonousness tree?

The marriage conundrum is evidently going to be addressed, too. This should be interesting. Honestly, how nitpicky can the nanny-state get about what goes on in adult bedrooms with or without the benefit of a state issued marriage license? The same people who insist you can't legislate morality are . . .legislating morality. How hypocritical is that? And are the alleged child brides going to testify? or will they invoke spousal privilege? CAN they invoke spousal privilege? Are they children or emancipated adults? What was the age of parental consent at the time of the marriage? Does parental consent only apply to marriages with marriage licenses or to common-law marriages? The muddy Texas marriage waters are likely to emerge from this episode much clearer, and how will they contrast with the recent legal decisions regarding same-sex marriages in other states? Wow. It will be fascinating to see how much more the government can screw up the institution of marriage in this country.

And the hapless doctor, a mandated reporter didn't report child abuse? This would be only the SECOND case I have heard of in the past seventeen years where a mandated reporter was charged with failure to report. The first (if memory serves. . .it's been a while) involved a school nurse in Missouri, who was not convicted, because she didn't believe the incident she was charged with not reporting constituted child abuse. Her reasonable belief was adequate to defeat the conviction. That and the vague laws which define abuse loaded with loopholes for both sides. I don't know of a single conviction against a mandated reporter for failure to report, anywhere.

It's almost like the Clash of the Titans, Child Savers vs. Religion. If only the child savers had gone after the Catholic Priest child molesters and the foster care molesters with the same red-eyed vengeance they are going after the polygamists. Then they might appear more credible to the public.

Come on, guys. . .your double standard isn't hidden very well.

Kansas, SRS problems escalate

The press conference held yesterday by Kansas family rights group Citizens-for-Change has resulted in yet another front page article in the Wichita Eagle condemning certain practices by Kansas Social and Rehabilitative Agency, and Secretary Don Jordan.

It seems that Mr. Jordan has become the target of a feeding frenzy which looks like more of a knee-jerk reaction than a well thought out solution to a very serious problem. AFAC has not joined the call for his resignation as the National Coalition for Child Protection Reform has.

Don't get me wrong, from a family rights perspective, Mr. Jordan is incompetent. But so are most state heads of CPS agencies. He's obviously got something to bring to the job, even if it is only really pretty ass-kissing.

I know from reliable sources that other serious problems were raised at the March 18 meeting with Mr. Jordan, but this one has gotten all the attention. I see a way that Mr. Jordan could come of this smelling like a rose, and save Governer Kathleen Sebelius's precious hopes for a vice presidential slot with Obama. Kansas could become the model for a more family friendly, best practice child welfare agency if the leadership cared for those kind of kudos.

I don't think Mr. Jordan needs to be canned. Instead, I think SRS has a great opportunity to fix their child welfare system, keep the federal funds flowing in, and come out looking like real heroes.

I don't want to flog the Kansas dog like Richard Wexler appears to want to do, what's the point? I want to solve the problem and I have some ideas where pretty much everyone gets to save face. Just in case anyone is interested.

KSN news story

Wichita, Kansas and SRS (CPS)

The Wichita Eagle has just broken a story about SRS practices in that state which mirror practices we have seen in the Texas FLDS cases related to the YFZ Ranch.

It seems Don Jordan, secretary of the Kansas Department of Social and Rehabilitation Services has blabbed some very incriminating information and it was caught on tape. I have it on good authority that Jordan was accompanied to the subject meeting by certain attorneys whose job it was to insure he didn't blab. It didn't work.

The Eagle reports:

During a meeting with the advocacy group Citizens for Change (CFC) on March 18 in Topeka, Jordan was recorded saying:

"But in Sedgwick County oftentimes we end up writing things because it's what our social workers get bullied by the District Attorney's Office into writing. So they really have no belief in what it says."

Later in the meeting, Jordan said: "I am working on our staff that we do our assessments properly and we not get bullied into writing things we don't believe. But then the reality comes down to, you send a 25-year-old social worker into a room with a 15-year county ADA (assistant district attorney) who is willing to yell at them, cuss at them, scream at them and threaten them, you know."

This disclosure is no surprise to me. Been there, seen that, reported on it. In and of itself, it would not represent a real problem because there are other mechanisms in place under child welfare laws which are designed to short circuit this kind of egregious practice.

One of those checks and and balances are the attorneys who represent the children and the parents in these cases. Each parent has an attorney, as do the children, and these attorneys have the duty to put these caseworkers on the stand and cross examine them as to the truth of their report. Problem is, the attorneys don't challenge the report, don't cross examine the workers and don't demand an evidentiary hearing. This check and balance is effectively broken when these false statements become part of the record without being challenged. And when, by the admission of Judge Burgess who is quoted saying "at least 95 percent" of the cases, parents do not contest moves to keep their children in temporary custody. That's because the lawyers representing the parents refuse to contest it. What's wrong with this picture?

The next check and balance are the judges who hear this information. They are charged with weighing the truth of the matters and insuring a fair and equitable process. But, they resist evidentiary hearings in favor of rubber stamping caseworker recommendations. After all, caseworkers wouldn't lie in an affidavit, would they? In fact, informed sources advise me that parents are rarely even allowed in the courtroom for any hearings in Sedgwick County, including for the death penalty of the family, Termination of Parental Rights. Without a meaningful opportunity to be heard by judicial edict, this check and balance is broken.

What about the caseworkers? They are, after all, the ones trained to manage these cases. They have a duty to the children if not to the parents, to resist allowing a lawyer to manage the case. Lawyers are trained in the law, not in social work. When a caseworker allows a lawyer to impose his practice into her practice, they system is no longer intended to help families, but to serve the prosecutors goal of achieving a win. I've seen plenty of lawyers bullying caseworkers into going against their own judgment and best practices. So, the checks and balances fail, again.

Meanwhile, everyone is backpedaling and playing CYA.

Jordan said he made the comments but wishes he hadn't said "bullied," adding that he respects District Attorney Nola Foulston and her staff.

"I don't think they intend to bully our staff. It was a poor choice of words.... I don't believe anybody's asked to perjure themselves or lie."

I'm not buying this. He also claimed he was 'pandering' to CFC when he blabbed. Since Citizens for Change has been selected by SRS as a collaborator, pandering is a violation of the State Plan and other agreements SRS has with the federal government as a condition of receiving federal funding. Which is it, Mr. Jordan?

Deputy District Attorney Ron Paschal, who oversees Sedgwick County juvenile cases, said his staff reviews the affidavits but does not improperly pressure social workers about what they write in the documents.

Although preserving families is one goal of the child-welfare system, "our utmost concern is the immediate safety of the child," he said.

"We have a job to do, and they have a job to do, and if they come to our office and have not done it, we're not going to hesitate to ask them to follow up," Paschal said.

Prosecutors have the legal authority and responsibility to order that relevant information be put in the affidavits, Paschal said. Social workers don't have to sign them if they disagree, he said

It is not the mission of the lawyer representing SRS to do anything except what SRS instructs him to do. The lawyer has no mission to protect the child. That is SRS's mission, and the lawyer is not permitted to second-guess or trump the caseworker's assessment. In this instance, the prosecutor's office is overstepping it's authority.

And the judges. . .turn a blind eye and justify doing so by qualifying their statements:

Sedgwick County District Judge Jim Burgess, presiding judge in the juvenile division, which handles the child custody cases, said the process is thorough and fair.

Burgess said he is confident that prosecutors "would never intentionally put in false information."

Over the years, he has heard complaints that social workers get pressured but has not seen evidence of it, he said. . .

Have you ASKED to see the evidence, Your Honor? You set the tone, if the lawyers can't object and demand the evidence, it's because you made it clear they had better not object or demand the evidence. See how easy it is to short-circuit an important check and balance?

District Judge Tim Henderson said he typically sees a social worker's affidavit about 48 hours into a child abuse investigation, after a child has been taken into protective custody.

Before he signs a custody order, Henderson said, "I look at the social worker, and I say, 'Do you believe we've done everything we can to prevent this child from being removed from the family?'

"I am very comfortable in the integrity of the DA's office and the (SRS) workers... because I am constantly asking them if they believe it is appropriate," he said.

Belief is not the appropriate standard, Your Honor, evidence is. . .you don't belong on the juvenile bench.

I hope the Wichita Eagle will stay on this story, which is sure to expose even more suspicious practices by SRS in their endeavors to save children who really don't need saving.

Texas, CPS, FLDS and the Pseudo-Adversarial Process

Q. What do you call a lawyer with an IQ of 60? A. Your Honor.

It took a very embarrassing public spanking from the appeals court to get Her Honor to do her job, if she is doing her job. She will insist upon a full blown adversarial hearing. . .says Her Honor of the cases being heard this past week.

Yet, during this hearing, the origin of the shocking photos of Warren Jeffs kissing a child bride which were admitted into evidence was not divulged. CPS refused to say who took the photos, who possessed the photos, or in any other way treat them according to the rules of evidence.

They had nothing to do with the parents whose hearing they were introduced into. They had absolutely no probative value for the case being heard. They were intended solely for prejudicial value. This is a typical CPS cheap shot when they have no case. The less intelligent of our society are swayed by such tactics, including certain judges. Critical thinkers are put off when government agencies have to play fast and loose with the law, with the court rules and with the rights of children.

The photos were not authenticated. . .which is required by the rules of evidence. Somehow, that does not jive with the judge's statement. It looks like she is still just posturing. Not only that, but she's allowing CPS to violate a child's confidentiality by releasing the photos while refusing to submit proof that the photos are valid. Form over substance. Doesn't this judge know better? She's been to law school, to judge school. What the heck is going on in her courtroom? In any of the five courtrooms?

Besides, Jeffs has been tried and convicted. Is Texas CPS seeking to punish the entire congregation for Jeffs's crimes by taking the kiddies? If the photos are what CPS says they are, then try Jeffs for those crimes, don't steal the babies from the arms of their mothers.

The fact is, CPS doesn't have the proof it needs to sustain the cases against the parents at the YFZ ranch. But that doesn't matter, they have these dirty pictures of another guy who doesn't live there any more.

Reasonable Efforts: A Check and Balance or Check the Box?

Reasonable Efforts: A Check and Balance or Check the Box?

---

What does reasonable efforts really mean in a child welfare case? Is it really an "... important safeguard against inappropriate agency action..." or has this critical element become nothingmore than "... a mere pro forma exercise in paper shuffling to obtain Federal funding..." (S.Rept. No. 336, 96th Cong., 2d Sess. 16 (1980)).

In order to arrive at an accurate analysis of this element, let’s examine the requirements surrounding a judicial determination that reasonable efforts were made prior to the removal of the child from the home. We must also include the other half of this requirement, the requirement mandating a judicial determination that maintaining the child in the family home would be contrary to the welfare of the child. Both of these judicial determinations are required in order for the agency to qualify for federal funding under title IV-E of the social security act. Failure to fulfill either one of these safeguards renders the child ineligible for title IV-E funds for foster care. That represents a powerful incentive for child welfare agencies to operate within strict compliance with reasonable efforts and contrary to the welfare provisions.

The law and the U.S. Department of Health and Human Services, Agency for Children and Families (ACF) is clear as to the application of these two requirements. First, that the first court order authorizing the removal of the child must include a judicial finding of contrary to the welfare of the child. If the initial removal order is issued prior to the child’s actual removal, the contrary to the welfare of the child judicial finding must be included at that time. The failure to make this finding at the original removal order cannot be retroactively corrected by nunc pro tunc orders, or issued after the initial order authorizing the removal of the child. Furthermore, this judicial determination must be supported by the evidence in the record.

Additionally, the agency must actively make reasonable efforts to keep the child safely in the home before seeking a removal order or before removing the child without a removal order. Reasonable efforts consists of services provided to the family which are intended to prevent the child’s removal from the family home, and to insure his safety while he remains in the home. Such services can include: supervisory day care, respite care, daily caseworker visits to the family home, a reasonable safety plan, one-time housecleaning, grant monies for utilities or rent or to repair unsafe condition in the home, a trip to the food bank or grocery voucher, in-home counseling and education, another family member moving into the home to supervise, removing the offending parent from the home, etc. If these services failed, the agency must prove that the services were appropriate and prove how they failed. If they didn’t offer services, they must prove that those services would not have prevented removal or prove why they weren’t required to provide services. The court is mandated to make a judicial determination concerning reasonable efforts within 60 days.

If it is not made within this time frame, like the contrary to the welfare requirement, reasonable efforts omissions cannot be corrected.

The assessment of what qualifies as ‘contrary to the welfare’ is subjective. Each party to the case has the legal right to submit their arguments in support of or against this finding. The court has the obligation to hear these challenges. Why? Because contrary to the welfare is not merely a box to be checked based on the unsubstantiated claim of a caseworker. It actually performs the function of satisfying due process protections associated with depriving parents and children of their liberty interests to family association. As such, to treat this as a mere formality and ignore the substance of this powerful requirement is to deny the children and parents due process. This finding can be overturned on appeal if the evidence in the record at the time of the judicial determination does not support a finding of contrary to the welfare. If contrary to the welfare determination is overturned on appeal, it raises the very real possibility that any subsequent adjudication, treatment plan and termination of parental rights ruling can also be invalidated. This would be based on the premise that the child was presumably safe and the parents were presumed fit and the agency acted without legal justification in removing the child in the first place.

Reasonable efforts is less subjective, but no less critical as a due process requirement.

Because these two requirement are so vital to pre- or post- deprivation due process for both the parents and the children, the court does not have the discretion to issue a judicial finding in favor of contrary to the welfare or reasonable efforts without first examining the evidence supporting that finding.

Even if the parties are willing to stipulate to those findings, the law mandates that these findings be supported by evidence in the record. Naturally, the parents and children have the right to subject the supporting evidence to adversarial testing, to rebut the evidence and to appeal these critical due process findings. But the scope of the power of reasonable efforts exceeds just the initial removal of the child. Reasonable efforts also applies to reunification of the child with the parents, and to achieving permanency for the child.

In the context of reunification, as soon as the parents can demonstrate that the family home is safe and appropriate for the child, the child must be returned. If there are services which the family can utilize while the child is in the home which will insure the safety of the child, reunification must occur. If it doesn’t, once again, the parents and children can challenge the judicial determination that reasonable efforts to reunify the family were made. They should demand an evidentiary hearing and once again subject the evidence supporting this reasonable efforts determination to adversarial testing. If there is insufficient evidence to support reasonable efforts, the court has the discretion to order the child returned home and the child will be ineligible for title IV-E funds for his entire stay in foster care.

In most jurisdictions, the judicial determination that reasonable efforts were made is a required element in order to terminate parental rights. If reasonable efforts to reunify have not been made, termination of parents rights cannot, as a matter of law, be granted. This makes it critical to challenge every reasonable efforts determination so that it can be raised as an appealable issue if parental rights are terminated.

It is in this manner, that reasonable efforts and contrary to the welfare, act as two powerful checks and balances against unnecessary removal of children from their homes and to insure the speedy reunification of the family. It also proves how utterly critical it is for parent attorneys to demand evidentiary hearings at the initial shelter hearings. This will be their singular opportunity to challenge any pro-forma judicial determinations in favor of contrary to the welfare.

Since the court must make reasonable efforts to reunify determinations at each subsequent hearing, the parents and children have ample opportunity to make the state bear the burden of proving that reasonable efforts were made. Once again, the court cannot responsibly make this judicial determination if the evidence does not support that finding.

As powerful as these two elements are in protecting the liberty interests of both children and parents, it must be noted that most professionals who practice in this area of law have no clue of the significance of these two, simple determinations. ACF has confirmed this in their child welfare manual, “We concluded, based on our review of States' documentation of judicial determinations over the past years, that, in many instances, these important safeguards had become precisely what Congress was concerned that they not become. . .a mere pro forma exercise in paper shuffling to obtain Federal funding. . .” (S. Rept. No. 336, 96th Cong., 2d Sess. 16 (1980)). ”

Regardless of how carefully the legislature crafts the checks and balances that they determine must be employed in the laws they pass, unless the responsible actors employ those mechanisms, the system of checks and balances will utterly fail to perform their designated functions. For this reason, we are experiencing wholesale failures of the child welfare system.

The first protector of these two checks and balances is the court. Judges have abdicated their solemn duty to be impartial finders of fact and to enforce the law as it has been written and to insure full due process has been afforded to respondent parties and children. They rubber stamp these two judicial determinations as a matter of procedure in every court in our land, without ever reviewing any evidence or even asking for any evidence to support those findings. A judge must anticipate, even expect that any party in any court case will attempt to take procedural or legal shortcuts in their efforts to resolve the dispute in their favor. To validate a due process shortcut in any single case is a profound injustice to the opposing party. To institutionalize those shortcuts on a wholesale basis is abhorrent to the fair and impartial administration of justice. Is it any wonder that the public has lost complete faith in the juvenile court system?

But the judges are not solely to blame for this failure. Respondent parent attorneys and children's attorney are also charged with invoking all available legal remedies and protections on behalf of their clients. Instead, the accepted practice is to appear in court and acquiesce to all child welfare agency demands from the very first hearing, regardless of the parent’s wishes. They will not challenge contrary to the welfare determinations, nor demand that the state bear the burden of proof that keeping the child in the home was contrary to the welfare of the child. Even in the most obvious cases, where the child exhibited no identifiable harm as a result of the parents’ action or inaction, they will refuse to invoke this critical due process tool that has the potential to get over 80% of children returned to their parents at the very first hearing.

Respondent parent and children's attorneys will refuse to utilize reasonable efforts in a similar manner. This is especially detrimental to their clients because the legal ability of the court to terminate parental rights hinges so much on this determination.

The generally accepted legal requirement to remove a child is when a parent fails to provide the minimum amount of care, safety, food, shelter, supervision and education that a child requires. This translates into a parent with a grade of F. The agencies are removing children who are clearly receiving the minimum level of care but, alas, the parents are not perfect. Therefore, the child is at risk of future abuse. When? Who knows? What specific abuse? Not necessary to identify. These parents are probably C- parents.

In universal practice, the child is removed and not returned until the parents can demonstrate to the subjective satisfaction of the caseworker that they have become at least B parents. This translates into a failure to make reasonable efforts. Reasonable efforts to reunify arguably means that if the parents achieve a D- proficiency with regard to providing the minimum level of care, that reunification should occur. The agency can still provide continuing services reasonably designed to increase the proficiency of the parents while the child is in the home.

These parents’ attorneys should be arguing against any reasonable efforts determinations which endorse the threshold for reunification higher than the legally mandated minimum level of care. This is the only way to force the child welfare agencies to comply with reasonable efforts.

At the same time, the agency is declaring they have made reasonable efforts and that maintaining the child in the home was contrary to the welfare of the child. They checked the reasonable efforts box and invoked the words contrary to the welfare of the child, therefore they believe they have fulfilled their statutory mandate.

If one were to examine any juvenile court record, one would be hard pressed to find anything more than that bare form submitted by the agency to substantiate these determinations. The explicit reasons why maintaining the child in the home would be contrary to his welfare are rarely included in their submission to the court. The evidence to support their contrary to the welfare conclusion is also conspicuous by its absence. The reasonable efforts box is checked. Maybe the caseworker offered a safety plan which the parents disagreed with. Maybe she didn’t even do that. Our caseworker has been trained that checking the box satisfies reasonable efforts
requirements.

Our Judge has been trained that this formality satisfies statutory mandates. He rubber stamps the caseworker recommendations and utters the requisite contrary to the welfare and reasonable efforts incantation. He makes no individualized determination on either of the elements. He has seen no evidence to support the determination. No such evidence has been entered into the record. Procedurally, the form has been satisfied and the agency will seek and obtain federal funding for that child. Substantively. . .who needs substance? They’re protecting a child from his parents!

Mom and dad’s and children's attorneys don’t object. The ritual is complete.

The final factor which contributes to this process devoid of substance, is the character of the judicial proceedings itself. It is not geared toward protecting the rights of children and parents. It is geared toward the hasty disposition of cases, with heavy utilization of prehearing negotiations and deals, and the slashing of expenses. Hearings are conducted informally in order to facilitate these objectives. Consequently, any effort to slow the wheels of justice with examination and deliberation of the merits of any judicial determination is strongly discouraged.

Juvenile court Judges get ugly when contested hearings are demanded. Child welfare agencies characterize parents who demand due process as ‘uncooperative’ and ‘focusing on the wrong issues’ (e.g. their rights) and punitively obstruct reunification in retaliation. Respondent parent attorneys petition to withdraw if instructed by their clients to invoke the legal tools available to them. The entire system is designed to impose obstacles to any attempt to make the state bear the burden of proof as mandated under law before breaking up a family.

Reasonable efforts and contrary to the welfare do not represent a right in and of themselves. You can’t sue if they are improperly applied or ignored. They are carefully crafted safeguards to protect due process. They have the power to deprive the agency of funding and to reunify families, if the judicial determinations are properly challenged in the juvenile court. They constitute appealable issues which address the appropriateness of child welfare agency actions. But as such, they must be challenged when the judicial determinations are issued.

The failure of respondent parent attorneys and children's to demand the legal standards that attach to these determinations are adhered to is nothing less than legal malpractice. The failure of family court judges to insure this process does more than satisfy form over substance is malfeasance.

The agencies who have masterminded this scheme are committing fraud and depriving parents and children of their rights. Nobody loses, except the child who is being protected and his parents.

This article is copyright 2004 Suzanne Shell. You may obtain a copy at www.profane-justice.org