When a Child Safety Plan = Coercion

The recent trend in child protective services (CPS) of creating safety plans received a set back recently in federal court. Judge Rebecca R. Pallmeyer of the United States District Court, Northern District of Illinois ruled that in-home safety plans created by the Illinois Department of Children and Families (DCFS) were illegal because they were secured in a coercive manner.

The coercion at issue was the CPS worker's express or implied threat of to take the child into protective custody lasting more than a brief or temporary period of time. The court also ruled that DCFS failure to provide a mechanism to review safety plans once they were put in place violated due process. The court declared that not all child safety plans trigger constitutional issues and gave DCFS 60 days to create constitutionally adequate procedures consistent with the opinion.

The ruling seems to indicate that DCFS can create an acceptable review process that does not require families to hire legal counsel. The issue of coercion is tricky. While it is possible to use non-coercive language, the imposition of safety plans in which parents agree or the child is removed has features not unlike the old consent dockets of juvenile courts which were also ruled unconstitutional.

If the agency judges a child to be in imminent danger of serious harm--general statutory language for justifying removal of a child--acceptance of a reasonable in-home safety plan may be the family's only alternative to placement. If the family does not consent to the plan (assuming the plan is reasonable and justified by the safety assessment) there is a seemingly inevitable coercive reality that without acceptance of the plan, the agency will need to take protective custody in order to ensure the safety of a child.

The issue in this decision is that a family's acceptance of a safety plan must be made only after a full understanding of these realties and the lawful alternatives. Under our constitutional system, state intervention in family life, including the threat of removing a child, is limited. According to this court, due process protections are required to balance the rights of families and the state's compelling interest in a child's welfare.

Guest Commentary by

Thomas Morton

President and CEO

Child Welfare Institute

Terminating Parental Rights when Visitation is Prohibited

In a matter of first impression anywhere (correct me if I'm wrong), the Wisconsin Supreme Court recently held that a statute which allowed termination of parental rights based on a judicial order which prohibited visitation was narrowly tailored to serve state's compelling interest of protecting children from unfit parents.

The Wisconsin law states that a "[continual] denial of periods of physical placement or visitation" is a ground for terminating parental rights. A finding under the provision requires that:

(a) the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order, and

(b) at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

The parent argued that the law violates substantive due process because it does not require any evidence of parental unfitness. The no-contact orders denying physical placement or visitation are based on the best interest of the child rather than on a finding that the parent is unfit. Since these orders are the sole basis for a finding that grounds exist for terminating his parental rights, the statute is not narrowly tailored to meet a compelling state interest and violates his substantive due process right.

The court disagreed finding that only after multiple steps was the parent faced with a fact-finding hearing on whether this ground for terminating parental rights existed. The findings that are required for a court to proceed against a parent at each of the steps prior to the final step involve an evaluation of a parent's fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under this TPR provision to amount to unfitness.

The court concluded that, on its face, the law is narrowly tailored to serve the state's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives.

Two judges dissented finding that no matter how you slice and dice the statutory scheme used in the present case, nowhere can be found a lower court's finding of the parent's individualized unfitness. The dissenters criticized the majority opinion for inferring unfitness when there was not an explicit finding of unfitness aside from a finding of a statutory ground. They found that the parent did not have an individualized judicial determination that he is an unfit parent. Under the statutory scheme, not only is such a determination unnecessary, but the parent was precluded from having a determination on that very issue.

Quoting from one of the dissenters: "The ramifications of the majority opinion in this case cannot be understated. A child may be taken away from a parent, in the best interests of the child and for reasons that have nothing to do with the unfitness of that parent. Conditions for return of the child can be ordered by the court, which simply cannot be met for reasons having nothing to do with the unfitness of the parent. At the expiration of one year, a parent may have his or her parental rights terminated absent any particularized showing of unfitness, simply because he or she cannot satisfy the conditions set by the trial court."

No word on whether this case is headed to the United States Supreme Court, but I think the issue is ripe for review and could result in one of the most significant parental rights/child welfare decisions in decades. What do you think?

Foster Care Law - The Book!

Mention the phrase “foster care” to nearly anyone and you may evoke one of several images: maltreated children; kindly strangers; abusive strangers; bureaucratic bungling. One image not likely evoked will be the sheer enormity of the foster care system. Foster care is big business. In 1989, the federal government spent 1.2 billion dollars to reimburse state spending on foster care. This year it will be over 6 billion dollars, an increase of more than 400%!

Foster care is a way of offering children a stable home while their own parents are unable to care for them. Some children may have been neglected or mistreated. Social workers and lawyers work with biological and foster families to help parents and children sort out their problems in order to make the biological home a safe place to which the child can return. Usually, foster care is a temporary arrangement. Some children return to their own families in a matter of days, weeks, or months. Those who cannot (two-thirds will stay more than a year) may stay in long-term foster care or may be adopted. Ideally, each child is placed in a foster home that is thoughtfully chosen to meet their unique needs. The principal goal is to significantly reduce the length of time a child spends in the frustrating wait to return to their own home, to find a permanent home, or to be adopted.

This book galvanizes and centralizes a great deal of legal and social work information about foster care into one easy-to–understand primer. The child welfare services system in general and the foster care system in particular are both amalgamations of federal and state law, hazily defined standards, policies, and practices. Public policy is defined by broad strokes; law is defined in its details.

Forster Care Law - A Primer catalogues and organizes numerous disparate bits of policy and legal information into a single volume that new or seasoned social workers and lawyers will find invaluable, even as public and private agencies are hampered by high staff turnover and inexperienced workers.

While anyone can apply to be a foster parent, to be an effective foster parent is a challenging task that calls for specific knowledge, skills and abilities. Even armed with these, foster parents too often find themselves unappreciated and criticized. Every new report of child abuse by a foster parent further weakens the desire of would-be foster parents and undermines the ability of agencies to retain their veteran foster parents. To combat this pessimism, one of the virtue’s of this book is the authors’ ability to provide a comprehensive review of risk and liability issues. This is accomplished by citing numerous legal cases without dragging the reader into a quagmire of legal jargon.

There is unanimous agreement that the American family is in a state of crisis. Births to unwed parents are still at record high levels, marriage rates are down, and divorce rates are up. Legislators, lawyers, social workers, and public policy makers are constantly pondering ways to evaluate such family changes in an attempt to determine possible responses to them. Schweitzer and Larsen have unraveled one strand of the family crisis mess. This book does what few child advocacy books do. It deftly communicates real-life practice, policy, and law to front-line workers without sounding like a training manual. It is a book that should truly help many of us lawyers and social workers do our jobs better.

Guest book review by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836