Bill of Rights for Parents Investigated by the Child Welfare System

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Rise, an organization that works with parents to write and share their experiences with the child welfare system, has created a Bill of Rights for parents.  They also have a pamphlet called "From Rights to Reality: A plan for parent advocacy and family-centered child welfare reform."  You can get a copy of the pdf HERE.

Should Children Stay with their Homeless Parents?

Hawaii News Now recently shared a story about children and homelessness.  You can find the story HERE, which includes a video.

Webinar: "Pot, Parenting, and Government Intervention"

For those of you who might be interested, there is a webinar available through the ABA called "Pot, Parenting, and Government Intervention."  The webinar was originally held on May 18, 2015, but you can download and listen HERE.

The following is a summary description of the broadcast:

This webinar was offered on May 18, 2015. While marijuana cultivation, sale, and use remains illegal under federal law, there seems to be forward momentum to de-criminalize marijuana in a number of states (from de-criminalization down to parking violation level offenses, to legalized medical or even recreational use), the experience of front-line lawyers and advocates for children and parents involved in the child welfare system suggests that for the populations they serve (poor and disproportionately of color), marijuana use by parents still triggers drastic government intervention, including the removal of children and even the possible termination of parental rights. Why has a seeming broader tolerance for marijuana not translated to these systems? What are the equal justice issues involved? Is this reflective of the "criminalization of poverty"? What are the social and economic costs? The panelists for this webinar address these questions as well as many of the practical issues regarding marijuana and the child welfare system, both in states that have de-criminalized marijuana and in states where it is still illegal.

Disabled Massachusetts Mom gets her daughter back

We recently posted regarding the findings by the Department of Justice that Massachusetts had violated the civil rights of a disabled mother when her two day old baby was removed.  You can see the original post HERE.

Last week a judged granted the grandmother custody to the now two year old.  You can follow the story HERE.

DOJ finds Massachusetts wrongly removed infant from developmentally disabled woman

The Department of Justice recently found that the Massachusetts Department of Children and Family (DCF) violated a mother's civil rights under the ADA by discriminating against her based upon a disability.  DCF had removed a 2 day old baby from the mother because they had determined she was unable to parent due to a developmental disability even though she had support from her parents.

You can read a news article HERE.

You can read the full DOJ report HERE.

If you have cases where clients may have disabilities and need assistance, don't forget you can consult with the Disability Law Center.

NJ Justices say Methadone Treatment While Pregnant Not Child Abuse

On December 22, 2014, the New Jersey Supreme Court ruled that going through a methadone treatment program while pregnant, even when the newborn suffers from withdrawal symptoms, does not constitute child abuse.

The unanimous court overruled two lower court decisions that looked only at the harm to the child without considering whether the mother's actions were reasonable.  The court wrote: "We hold that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed health care professional to whom she has made full disclosure," 

You can find a full copy of the opinion HERE.

Utah Supreme Court Denies Biological Father's Appeal for Child Custody

On November 4, 2014, the Utah Supreme Court issued an opinion in Boulden v. Doe, denying a biological father's petition to intervene in the adoption proceedings of his now three-year-old child for "failing to preserve his legal rights as a father by filing a paternity affidavit within the time prescribed by Utah Code section 78B6-121(3)."

You can read the entire opinion HERE.

KSL.com also reported the story HERE.

Law Review Article on Legal Guardianship under ASFA

Sara Katz, a former parental defender and now Professor of Law at Temple University has published an article in Michigan Law Review on the topic of Legal Guardianships and the Adoption and Safe Families Act.  Her introduction states:

This Article argues that it does not serve the interest of children or parents to prevent parents entirely from filing for custody after legal guardianship is granted. To the extent a parent's rights are not terminated as a result of her child-welfare involvement, a family's contact with the child-welfare system should not lessen the value the law places on the parent-child relationship. In short, the courthouse doors should not be closed to children and their parents by barring parents from later requesting, in appropriate circumstances, that a court determine whether it is in that child's best interests to return to the parent. Although permanency has value in the child-welfare context, permanency unto itself should not be the goal in resolving custody disputes--determining children's best interests should always be at the forefront in all custody cases, whether between private parties or between the parent and the state. This Article posits that parents should retain the right to file to vacate the guardianship and regain primary custody, but makes recommendations to the states so as to ensure children have the stability they need while promoting their best interests.

You can download a copy HERE.

The Presumption that a Parent Acts in the Child's Best Interest

We recently did a little research for one of our members on the parental presumption.  We thought we would share the case law here.

Hutchinson v. Hutchinson, 649 P.2d 38 (1982)

The parental presumption in favor of custody been placed in the biological parents can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that gave rise to the presumption: (1) that no strong mutual bond exists, (2) that the parent has not demonstrated a willingness to sacrifice his or her own interest in welfare for the child's, and (3) that the parent lacks sympathy for an understanding of the child that is characteristic of parents generally.  If a nonparent can establish these elements, the nonparent is placed on equal ground with a natural parent and custody decisions will be based on the best interests of the child. The presumption does not apply to a parent who would be subject to the termination of all parental rights due to unfitness, abandonment, or substantial neglect.

In re K.P., 2009 UT App 244

Hutchinson factors generally inapplicable in juvenile court where the parent has been adjudicated as to abuse or neglect, because adjudication itself rebuts parental presumption, rendering Hutchinson factors unnecessary.

In re J.L.V., 958 P.2d 943 (1998)

Once the Juvenile Court has adjudicated dependency, neglect, or abuse, the Hutchison factors do not apply and custody decisions are made on a best interests basis.  “The law does not presume that it is in a child's best interest to be in the custody of the child's parent when the parent has been found by clear and convincing evidence to have neglected or abuse the child when the child is dependent.”

Troxel v. Granville, 530 U.S. 57, 66 (2000).

Parents presumed to act in child’s best interests.

Parham v. J.R., 442 U.S. 584, 602 (1979)

Parents’ decisions presumed to be in child’s best interest.

Meyer v. Nebraska; Pierce v. Society of Sisters; Prince v. Massachusetts

Parents have a fundamental liberty interest in directing the upbringing of their children.

New Toolkit for Parents Separated from Children Because of Immigration Detention

In January we posted about the ICE directive regarding the parental rights of those involved with immigration enforcement actions.  Our previous post is HERE.

In order to help parents who are separated from their children due to immigration detention the Women's Refugee Commission has released a groundbreaking new publication:  Detained or Deported: What About My Children? What To Do If You Can't Be With Them.

This toolkit is designed to help immigrant parents keep their families together. It is the first-ever comprehensive, nationwide resource to help families who are caught between the immigration and child welfare systems.

The toolkit will also be a valuable resource for attorneys, advocates, family members and others who work with immigrant families. It provides critical information to ensure that family unity and children's best interests are taken into consideration in immigration, child welfare and family court decisions.

More than 5,100 children are currently in the U.S. foster care system because a parent has been detained or deported. Some parents have even lost their parental rights, and will likely never see their children again.

Detained and deported parents retain the legal right to make decisions about what happens to their children, even if children are temporarily out of their care. However, practically speaking, logistical barriers, a lack of coordination between the immigration and child welfare systems, and a lack of awareness of undocumented parents' rights can make it extremely difficult to put families back together once the immigration and child welfare systems are involved.

Detained or Deported: What about my children? guides parents and those who work with them through the steps they need to take to keep children from entering the child welfare system, locate children in that system, comply with a child welfare case plan, participate in family court and make arrangements for children at the conclusion of a parent's immigration case. It includes information on how to get a lawyer and how to stay in touch with children.

Detained or Deported: What about my children? has been approved by U.S. Immigration and Customs Enforcement for placement in all detention facilities that hold adults for more than 72 hours. 

You can get a copy of the toolkit on the website of the Women's Refugee Commission or download an Interactive Version or a Print Version.

Michigan Court Finds One-Parent Doctrine Unconstitutional

Another case came down this week in support of parental rights.  This time in Michigan.  You can find a syllabus of the case HERE.

The Michigan Supreme Court found that a procedure known as the one-parent doctrine infringed on the rights of a non-adjudicated parent.  The one-doctrine provides that if the court's jurisdiction has been established by the adjudication of one parent to a child, then the court can enter dispositional orders affecting the parent rights of both parents.  In this case only the mother had been adjudicated as unfit, but the father was required to comply with a service plan before the children were returned to his custody.  The Supreme Court found that due process requires that a parent be adjudicated as unfit before the state can infringe on the parent's constitutionally protected parent-child relationship.

New Jersey Court Finds Incarceration Alone Insufficient to Terminate Parental Rights.

Yesterday a New Jersey court found that a prison term alone is insufficient to terminate parental rights.  You can read a syllabus of the decision HERE.

Review of our January CLE Events--Helping Incarcerated Parents

In January, the new directors of the Parental Defense Alliance-Grant Dickinson and David Boyer-traveled to Brigham City and to Cedar City for two lunch CLE events.  They were able to connect with the regional Parental Defense attorneys and provide some information about representing incarcerated parents.  

The most important thing to remember when representing incarcerated parents is to educate the Court of its heightened responsibilities to incarcerated parents and to ask for services.  The only reason services can be denied is if the Court finds that the services would be detrimental to the child.  

We have posted the slideshow below for your review.  (It is also available on the website HERE).  We also anticipate making the entire training available online at a future date.

Report on The Effects of the ICPC on Kids in Foster Care

A new report called Foster Kids in Limbo: The Effects of the Interstate Compact on the Placement of Children on the Permanency of Children in Foster Care has been issued to the Annie E. Casey Foundation by Professor Vivek S. Sankaran of the University Michigan Law School.

The report highlights the major problems with the ICPC, finding that

Despite its good intentions, the ICPC has become unworkable.  It contains no specific deadlines for the completion of interstate home studies.  It does not set clear standards for how child welfare agencies must evaluate potential placements.  It allows child welfare agencies to deny placements with parents and relatives for seemingly arbitrary reasons.  And it prohibits courts from reviewing placement denials yet fails to provide administrative procedures for parents and relatives seeking an independent review of a denial.  

The results are not very surprising, but raise some interesting constitutional questions when it is a birth parent whose request is being denied:

The Constitution demands that parents be accorded a presumption of fitness absent a judicial finding to the contrary. That a state agency, without any judicial finding of unfitness, could summarily declare a parent unfit to care for his or her child is a serious constitutional problem; that it apparently happens so frequently without any administrative or judicial review is evidence that the ICPC system is in serious need of reform. 

You can check out the information gathered and see some of the specific cases highlighted in a full copy of the Report, which is available HERE.

Have any of you had difficulty navigating the Interstate Compact on the Placement of Children?  We'd love to know.

Assisting Parents with Disabilities

As Parental Defense Attorneys there are times when our clients have difficulties beyond the average case.  Those difficulties can include cognitive disabilities and impairments.  There are times when our clients’ difficulties affect their case and their ability to complete reunification services.   As their attorneys it is our responsibilities to make sure their rights are protected.

In order to effectively advocate on behalf of our clients we need to determine if they have special needs beyond the normal case.  We should review the circumstances of the case and our clients’ abilities to determine if we need to ask for additional services.

If necessary, we can refer the court and DCFS to the Americans with Disabilities Act (ADA).    Title II prohibits discrimination by public entities against individuals by reason of disability.  It further prohibits exclusion from participation or denial of benefits.  It requires “reasonable modifications in policies, practices or procedures . . . when necessary to avoid discrimination on the basis of disability."  It applies to “all services, programs and activities provided or made available by public entities."  28 CFR §35.102(a) and §35.130(b)(7).

This may mean that DCFS would be required to provide reasonable accommodations to assist disabled parents in order to meet their burden of providing reasonable efforts (or active efforts under ICWA).

Here are some additional resources to assist you in representing parents with disabilities.

• The TASP (The Association for Successful Parenting) Web site (http://www.achancetoparent.net) for information about membership, conferences, and ways to connect with others on this area of interest. 
• The Web site of Through the Looking Glass (http://www.lookingglass.org), one of the first agencies in the U.S. to serve parents with disabilities. 
• Determine if your client is entitled to accommodations, here is the ADA http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm#a35107   

Parental Interests in Immigration Enforcement Activities

On August 23, 2013, the United States Immigration and Customs Enforcement (ICE) released Directive 11064.1 on the topic of Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities.  If you represent a parent that is involved with ICE and/or deportation proceedings, you may want to familiarize yourself with this directive.

Dawn Marie Rubio, our Juvenile Court Administrator, recently sent a memo to the judges, trial court executives and the clerks of the court addressing the main points of the ICE directive.  Her insights are below.

You can also download a copy of Ms. Rubio's memo and the ICE Directive HERE.

Re:                  ICE Directive 11064.1, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities

                                     

Parent attorneys should be aware of the attached directive issued by the U.S. Immigration and Customs Enforcement [ICE] because of its implications for child welfare proceedings.

The ICE directive defines a "proceeding in which a family or dependency court or child welfare agency adjudicates or enforces the rights of parents or minor children through the determination or modification of parenting plans, child custody, visitation, or support, or the distribution of property or other legal obligations in the context of parental rights."  The directive is applicable to alien parents or legal guardians who: (1) are the primary caretakers of minor children regardless of the children's citizenship, (2) who have a direct interest in a family court or child welfare proceeding, and (3) whose minor children are U.S. citizens or lawful permanent residents.  The stated policy is that "ICE personnel should ensure that the agency's immigration enforcement activities do not unnecessarily disrupt the parental rights of both alien parents and legal guardians of minor children."

The directive includes requirements for ICE to:

·                 Designate a person in each field office to serve as the point of contact on all issues related to parental rights in that given area;

·                 Hold detained parents or legal guardians in detention facilities that are reasonably close to where their children are living and to the location of the family court or child welfare proceedings whenever possible;

·                 Facilitate the ability of detained parents or legal guardians to participate in family court and child welfare proceedings that affect their parental rights, if a parent provides evidence of a hearing and facilitation of their participation does not pose an undue logistical burden to ICE or raise safety or security concerns;

·                 Facilitate the ability of detained parents or legal guardians to participate in family court and child welfare proceedings through video or teleconferencing when in-person participation is not possible;

·                 Facilitate visits between detained parents or legal guardians and their children when a parent or guardian can demonstrate that such visits are required as a precondition for family reunification;

·                 Accommodate, to the extent practicable, the efforts of detained parents or legal guardians with final orders of removal to make arrangements for their children, such as, joining them in their country of removal or arranging for a guardian so their children may remain in the U.S.;

·                 Provide detained parents or legal guardians, or their legal counsel of other representatives with sufficient notice of deportation, when such notice does not raise a security concern, so that travel arrangements may be made for the children of the detained parents or legal guardians;

·                 Coordinate, to the extent practicable, the access of detained parents or legal guardians to legal counsel, consulates and consular officials, courts, and family members in the weeks prior to deportation, in order to execute signed documents, including powers of attorney, guardianship agreements, passport applications, and the purchase airline tickets; and

·                 Consider, on a case-by-case basis, facilitating the temporary return of detained parents or legal guardians to participate in a hearing related to termination of their parental rights or legal guardianship rights if the family court has determined that their physical presence at the hearing is required.

The name and contact information for the local ICE Parental Rights Coordinator is:

Robert Cordero

Assistant Field Office Director

U.S. Immigration and Customs Enforcement

Enforcement and Removal Operations

Salt Lake City Field Office

(o) 801-886-7414 (c) 801-502-2868

Finally, a few links to the ICE Office of Enforcement and Removal Operations outreach website that may be helpful to you regarding this issue.

http://www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/

http://www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/contact.htm