Response to Elizabeth Bartholet Thoughts on the Liberal Dilemma in Child Welfare Reform ( 24 Wm. & Mary Bill Rts. J. 725 (2016)

My Response to
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https://hls.harvard.edu/bibliography/thoughts-on-the-liberal-dilemma-in-child-welfare-reform/

Author opens with the following
“The Liberal Dilemma is a problem in child welfare is a central problem. The dominant group in the child welfare area is and has been for the past several decades a self-styled liberal group. But the dominant liberal group has had a silencing impact on many liberals who fear being labeled as right-wing simply because they disagree. This can make it seem as if the liberal position is the dominant group position”.

I would find that Rachel Ewing , Children's Law Center of California , and Los Angeles Dependency Lawyers would object. Too often families are separated by the juvenile court system due to an overabundance of caution for the welfare of the child which in reality leads to disproportionate removal of low income and minority families who lack the legal resources to defend against charges. As Central Appellate Project and others would state in the juvenile court system it is too often the reality that parents are guilty until proven innocent.
The author then opines the following:
The dilemma or problem has to do with the nature of the policy the liberal group promotes. The policy focus is not on children, as should be the case in the child welfare area. In theory, children’s best interests should be the guiding principle.

I dissent as the objective of the CA dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes should those children cannot safely be returned home within the prescribed time. Welf. & Inst. Code, §§ 300, subd. (j), 361.5, 366.26, subd. (b) The public vests its trust in DCFS to acting as temporary custodians of dependent minors and to conduct its investigations properly. In re Daniel F., supra, 64 Cal.App.5th at p. 711.

Furthermore, CA Legislature has defined the best interests of children in dependency proceedings along a statutory continuum, meaning that there is no uniform picture of “best interest” as each family must be considered within the totality of the circumstances which include race, income, and personal history. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787

The author moves to state the following:

There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them.

There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them.


I take the author to task for failing to recognize that in the CA dependency scheme, before and after removal, family reunification is the focus, not selection and implementation of a permanent plan. Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. Accordingly, a parent’s rights are at their highest at the pre-termination stages. In re Arturo A. (1992) 8 Cal.App.4th 229, 238. It when the court finds that reasonable services have been providing within the proscribed time frames, that the parent did not avail themselves of those services, and that the factors that brought the minor under the jurisdiction of the juvenile court still exist that the court shift from family preservation to termination of rights and selection of a permanent plan to provide the dependent children with stable, permanent homes. Elizabeth R., supra, 35 Cal.App.4th at p. 1787.

The author again misconstrues the import of reunification services before setting a selection and implementation hearing under Welf. & Inst. Code, § 366.26:
Policy focus is on adults and their welfare. While they claim to care about child interests, its real goal appears to be to serve the interests of poor adults and to alleviate the suffering associated with poverty, including any harm that parents might suffer from state intervention in cases of child maltreatment.
Although not strictly a California case, In re Smith established that termination of parental rights is tantamount to the death penalty in a criminal case. In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Because termination carries such serious consequences, the author understates this harm that parents incur from selection and implementation proceedings.

Author states:
There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them.

As stated ante the author’s paper appears to focus on proceedings before the adjudication and jurisdictional proceedings hence the Legislature emphasizes at this point the importance in efforts for family preservation. The state bears few powers greater than the authority to end a parent’s rights. When the state seeks to exercise that power, they must be afforded every procedural and substantive protection the law allows. Therefore the parent’s right to attempt to reunify with their children via services is essential to due process. It is also not often the case that DCFS would order a case plan and then allow parents to sit idly and not redress the issues that brought the minor under the court’s custody. Our statutes provide that the failure of parent to participate regularly in court-ordered treatment programs shall be prima facie evidence that the return of the child to the parents’ custody would be detrimental. Welf. & Inst. Code, § 366.21 subd. (f).



Author's assertion that:
There is an emphasis on the money that such programs will save. The dominant liberal group knows this and so its research emphasizes short-term financial cost savings. The dominant liberal group claims that keeping children with their birth parents is almost always good for children.

I cannot provide sufficient data about funding but Children's Law Center of California and Los Angeles Dependency Lawyers would know more.
I will rebut the claim of keeping children with "abusers" or neglectful parents.

Firstly the state does not decide on the preservation of the parental bond based on surface level interactions as “they will always confer some incidental benefit to the child”. Rather even at a .26 hearing it will find the bonding exception based ONLY on regular visits and contact or developed a significant, positive, emotional attachment from child to parent. The Court defined this beneficial continuing relationship as one that promotes the well-being of the child to such a degree that it outweighs any purported well-being the child would newly gain in a permanent home with new adoptive parents. In re Autumn H., supra, 27 Cal.App.4th at p. 575.



Furthermore on the detrimental effects of abuse, our Legislature provides that in extreme circumstances, under Welfare & Institutions Code § 361.5(b) services will not be provided to a parent when certain circumstances exist by a showing of clear and convincing evidence.
https://www.courts.ca.gov/documents/BTB25-PreConJDLP-03.pdf


This chart evinces that the State does not attempt to reunify when there are very serious charges (like severe sexual abuse/trafficking) against the parents.


Extensive evidence existed at the time showing that child maltreatment was generally associated with serious family dysfunction, including serious drug addition, domestic violence, and mental illness—problems for which short-term limited support services would provide no magic cure.

However, to carte blanche deny a parent of their right to services via bypass provisions under Welf. & Inst. Code, § 361.5(b) citing solely the minor’s best interests would be antithetical to not only the import of section 361.5 but to the current dependency system as a whole.

Author appears to worry about the time needed to afford parents a chance to address their issues.

Our dependency system comports with Santosky requirements because, by the time parental rights are terminated at a 366.26 hearing, the court must have made prior findings that the parent was unfit and was unable to redress issues via case plan. Per Santosky before the state may sever a parent’s rights due process mandates the allegations be supported by clear and convincing evidence. Once the state has shown unfitness it is then that the court may then assume the minor's interests shall have diverged from those of parents. In re G.S.R., 159 Cal.App.4th 1202, 1211 (Cal. Ct. App. 2008). Should parents fail to make efforts to address their case plan CA does recognize that protracted hearings may not seem like a long period of time to an adult; they can be a lifetime to a young child. Childhood does not wait for the parent to become adequate. In re Marilyn H. (1993) 5 Cal.4th 295. Hence we have strict timelines for completing services with mandatory review hearings.

Onto the author's concern that "Keeping children at risk of neglect at home instead of removing and providing services to support their families" is not the appropriate avenue of care.
"The State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit. The parents who come through the system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children's needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school. This is a hard fact to accept. We are dealing, after all, with children, and the dedicated people who work so hard to help these families are understandably desirous of providing those children with the best possible circumstances in which to grow up. But there are times when we have to take a step back and make sure that we are not losing sight of our mandate. We are looking for passing grades here, not straight A's". David B. v. Superior. Court (2004) 123 Cal.App.4th 768, 794

Author voices concern over inadequate investigations:
Second, there is extensive evidence that most CPS cases involve children at serious risk of maltreatment from their parents. Investigations are essential to determine whether some cases truly pose no significant risk to children and so can safely be placed on a voluntary track.

Termination of parental rights is the family law equivalent of the death penalty in a criminal case. Thus they must be afforded every procedural and substantive protection the law allows. In re Smith, 77 Ohio App. 3d 1, 16. Speaking of money, the courts must make a finding that continuance in home is contrary to their welfare, a finding crucial for eligibility for federal funding Welf & I C §319(c); 42 USC §§670–679c. At detention, the court must determine there is prima facie evidence of danger. The purpose of detention is to determine whether the child may be a child described by Welf & I C §300. If DCFS fails to make a prima facie case then the court must order the child released to their parents and dismiss the case. Welf & I C §319. Before detention, the CSW must interview the minor, parents, relatives, professionals, and others who may bear vital information about the child’s safety.

A note: CSWs usually rely on SDM tool in CMS in addition to their professional knowledge of child abuse and neglect but even then the SDM can be flawed. If DCFS makes the prima facie case that minor comes within the jurisdiction of the court but evidence does not show there is substantial danger per §319(c) or that continuance in the parent's home is not contrary to their welfare, then they must be released to their parents pending a jurisdictional hearing. Welf & I C §319. All of these indicia evince that there are more rigorous guidelines to investigations and/or removal of minors. Los Angeles Dependency Lawyers would be better situated to speak on how often the SDM is flawed in advising risk and unnecessary removal.



Author voices concern over inadequate investigations:
Second, there is extensive evidence that most CPS cases involve children at serious risk of maltreatment from their parents. Investigations are essential to determine whether some cases truly pose no significant risk to children and so can safely be placed on a voluntary track.

Termination of parental rights is the family law equivalent of the death penalty in a criminal case. Thus they must be afforded every procedural and substantive protection the law allows. In re Smith, 77 Ohio App. 3d 1, 16. Speaking of money, the courts must make a finding that continuance in home is contrary to their welfare, a finding crucial for eligibility for federal funding Welf & I C §319(c); 42 USC §§670–679c. At detention, the court must determine there is prima facie evidence of danger. The purpose of detention is to determine whether the child may be a child described by Welf & I C §300. If DCFS fails to make a prima facie case then the court must order the child released to their parents and dismiss the case. Welf & I C §319. Before detention, the CSW must interview the minor, parents, relatives, professionals, and others who may bear vital information about the child’s safety.

Yes author is correct in that the minor-dependent is entitled to view the agency as his champion and able to place complete faith in its expert analysis of his adoptability, return home, or alternative placement. The party who suffers a due process violation when DCFS submits a wholly inadequate report is the minor- dependent. However, as the suppression of information material to guilt or innocence in a criminal trial violates the due process DCFS violates a minor's due process right to a fair hearing when it fails to disclose material information. However, contravening In re B.D. 35 Cal. App. 5th 803, not fully giving weight to parents' circumstances that brought them under the court's jurisdiction and efforts with services shall have destroyed the evidentiary foundation for an accurate determination of minor's appropriate placement and violate parents's due process rights. Parents cannot mounted a proper challenge when their counsel do not know they had an evidentiary basis to do so.