Criminalization of the juvenile courts
Since its inception as the juvenile dependency system grew its racial and economic disparities have become too malignant to ignore; many including those in the system have resisted suggestions and demands for change predicated on the concept that there are many fundamentally flawed paradigms that underpin dependency law itself. Dependency court and their presumptions regarding drug use and abuse highlighted in the article linked below and discussed inter alia exemplify this conflict best. Advocates argue that for a deeply flawed institution to survive, it must insinuate its preferred hierarchy of ideals into the consciousness of all the individuals who engage with and perpetuate that institution. In order for certain ideals to thrive all must come to view the institution as necessary and natural. To change or eliminate an institution, society must find a way to identify and escape the very flawed conceptual categories that the institution perpetuates. Legal counsel for parents are the first and often only protector against such stacked policies and laws. To become better lawyers, we must learn the grip that racist and classist policies within dependency practices is laid upon our minds and lawyering.
Although the article takes place in New York, we in California have to examine many of our own policies. The overarching goal of CA dependency proceedings; the safeguarding of the welfare of California's children, underpins all related case law, best [legal] practices, and legislature. Family preservation, with the attendant reunification plan and services, is the first priority when proceedings are commenced. Services serve to maintain the family when possible. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787; also see In re Josiah Z. (2005) 36 Cal.4th 664, 673. However, this article finds flaw with inherent carceral attitudes toward "sub-ideal" parenting that drive "overboard" policies that brings families to the attention of DCFS.
This is where the intersection where carceral policies insinuate their way into non criminal agencies and deeply affect minority families in how they come under scrutiny of the DCFS and to what vigour their cases are defended. In the linked case, mother faced increased scrutiny and nonconsensual drug testing over "suspicions" that she was using and there would be harm to the newborn. Many may decry that these cases are outliers, do not affect California, or there would be many legal defenses to disprove such allegations. However, once we "pull back the curtain" and fully examine the realities of how such allegations are litigated we can see that this presumption toward infant safety is stacked against parents especially poor parents or POC.
Hospitals and the department cite the overlaying concern of irreparable harm that may be inured to the minor caused by their failure to act. The article reads in part "... says a “continuing harm” is that, after the formal investigation, a person can move to have their records expunged if ACS determines that child abuse or neglect was not substantiated. Instead, because she chose the alternative CARES program, [mother's] case stays in limbo and on her records". The same is true for CA. Courts routinely dismiss parents' claims that detention and jurisdictional orders create long lasting prejudice in subsequent [legal] proceedings, citing that their concerns are misplaced, highly speculative, and instead chose to proceed on the merits out of an abundance of caution. Although Welf. & Inst. Code, § 300 subd (b) generally requires proof that the minor is subject to defined risk of harm at the time of the jurisdiction hearing, it is often the case that the court states that it need not wait until minor is seriously abused or injured to assume jurisdiction and take the necessary steps to protect minor which can include removal. In re N.M.(2011) 197 Cal.App.4th 159, 165, 127.
Furthermore the courts can use the following; "a parent's past conduct may hold probative value into the current conditions if the court finds reason to believe that the concerning conduct will continue" as a basis for emergency removal and a true finding on the 300 petition.
In re S.O. (2002) 103 Cal.App.4th 453, 461. Now turning back to how carceral policies operate, this allows the attitudes that criminalize poverty and motherhood to pervade and lead to unnecessary emergency removals, assumption of jurisdiction, and lengthy case plans as evinced by the article's facts. The law proscribes that the case plan must be narrowly tailored to the parent's unique needs in redressing the issues that brought the minor under the jurisdiction of the court Welf. & Inst. Code, § 16501.1.. However, if the social worker deems parents unfit then they may order extraneous services like DV counseling, mental health assessments, and parenting classes. This places the burden on the parents who are most likely working class parents who cannot afford to take extra time from their jobs and commute to attend these extra classes.
Make no mistake child welfare legal architects constructed the initial framework out of concern due to early scant laws but subsequent legislature and case law falls short of considering the long lasting effects this bears on parents once their children are returned home. Many studies detail grievous loss of income, resultant psychological instability, and lasting legal ramifications.
Robert T. v. L.A. Cty. Court (In re Zoey T.), 2016 Cal. App. LEXIS 9355 is an excellent case where DCFS did not fully account for the father's lengthy history and his misunderstood "prolix" style of communicating with the department crippled his case given that few sought to understand the driving force behind his difficulty in working his case.
Although parents can challenge the services ordered via the "no reasonable services contest", they find themselves needing to comply with all the services until the bench officer enters a judgement. Per Welf. & Inst. Code, § 364 (c) which states that "failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions, which justified initial assumption of jurisdiction still exist and that continued supervision is necessary". This reinforces the notion that parents in the system are "guilty until proven innocent" for the sake of child safety. The parents who often most penalized come to the attention of the department for "B" counts which can range from dirty homes, mental illness, alleged substance abuse, or in some cases failure to adequately supervise the child given that the parent is working multiple jobs.
(David B. v. Superior Ct., 123 Cal. App. 4th 768, 789, 20) succinctly summarizes the trouble with child welfare litigation:
"We do not get ideal parents in the dependency system. But the fact of the matter is that we do not get ideal parents anywhere. 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 dependency 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".
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