a critical look at the child welfare system


Kevin Norell is one of the newer foster care caseworkers in the Utah Division of Child and Family Services, hired to satisfy child-welfare reform laws and the terms of a lawsuit settlement in Utah.

According to Norell, the state asks a lot of parents who want their children returned home. They have to find a job, find housing, all of which can be “tough to do for anyone in Salt Lake County.” Parents are ordered into therapy, parenting classes, perhaps drug rehabilitation, and they have to find time to visit with their children.

“Even an organized parent might have trouble with all that. And many of these parents are anything but organized,” says Morell.[1]

The intent behind court ordered reunification plans may be admirable, but the reality appears to be that many plans are designed for failure, according to the 1991-1992 San Diego Grand Jury:

Testimony was received regarding the hours of time which must be spent in order to comply with these plans. Defense attorneys have testified that they have told clients that it is impossible for them to work and comply with reunification. Judges and referees were observed, seemingly without thought, ordering parents into programs which require more than 40 hours per week. Frequently, these parents have only public transportation. Obviously, there is no time to earn a living or otherwise live a life. A parent often becomes a slave to the reunification plan.[2]

On April 20, 1993, a Florida father entered into such a “performance agreement” with the Florida Department of Health and Human Resources. The performance agreement, which is now referred to as a “case plan” pursuant to revisions in the Florida statutes, required the father to perform nine tasks to be reunified with his child:

  • (1) completion of an abuse counseling program and its recommendations;
  • (2) completion of a psychological evaluation and its recommendations;
  • (3) completion of a parenting program and demonstration of proficiency in parenting skills;
  • (4) evaluation for anger management and follow recommendations;
  • (5) evaluation for individual counseling and follow recommendations;
  • (6) monthly contact with HRS;
  • (7) follow reasonable requests and recommendations of the supervising counselor;
  • (8) provide HRS a list of relatives, their addresses, and phone numbers; and
  • (9) maintain adequate housing and demonstrate financial ability to provide for the child.
  • The father, through sheer determination, managed to comply with the provisions of the performance agreement. But was HRS satisfied with the result?

    On November 22, 1994, HRS filed a motion for change of goal, requesting that the father’s rights regarding the child be terminated because he had ‘failed to benefit from services in a reasonable length of time.’

    The lower court, on this basis, terminated the father’s parental rights. The determined father appealed to the District Court of Appeal. On March 22, 1996, the Court of Appeal reversed the decision of the lower court, holding that HRS had not met its burden of proof. The case was remanded for further proceedings. By this time, the child had been in foster care for three years.[3]

    In another recent case, HRS filed a petition to declare a child dependent, and to terminate the parental rights of the mother. The lower court dismissed the petition, as it failed to allege any abuse or neglect.

    The Court of Appeal ruled that abuse or neglect need not be alleged, and that the lower Court was in error holding that it could not terminate parental rights on the ground that HRS had alleged only that the mother failed to comply substantially with her performance agreements:

    Florida Rule of Juvenile Procedure 8.500(b) provides that the only substantive allegation required in a termination petition, aside from the parents’ and child’s identities, etc., is that ‘the parents were offered a performance agreement or permanent placement plan and did not substantially comply with it,’ when required by law. The petitions conformed with this requirement.[4]

    In most states, allegations of abuse or neglect are not necessary to remove a child, or to permanently sever parental rights. In virtually every state, the laws have been constructed in such a way as to allow the removal of children on the basis that they may be abused or neglected at some point in the future.

    In the State of Montana, for example, temporary removal orders require the department only “to submit to the court facts establishing a probable cause that a youth is abused or neglected or is in danger of being abused or neglected.”

    According to a recent judicial assessment of the Montana juvenile justice system, such treatment plans are often implemented early during the proceedings, even though a child may not have been adjudicated “a youth in need of care.”

    “Adjudication provides the basis for state intervention in a family,” reviewers note. “Therefore, enforcement of treatment which is not required for the immediate protection of the child… is an inappropriate exercise of the state’s power.”

    Citing state law, assessment reviewers explain the dire consequences of failure to complete the “treatment plan” constructed by the department of social services:

    the failure of a parent or guardian to participate in, comply with, in whole or in part, or to meet the goals of the treatment plan is prima facie evidence that return of the child to the parent or guardian would be detrimental.[5]

    Incredibly, rulings like this can be found throughout the states.

    In California, an often-applied ruling used to terminate the parental rights of parents who simply refuse to comply with social worker demands that they attend “treatment” or “therapy” reads:

    the failure of the parent or guardian to participate in any court-ordered treatment programs shall constitute prima facie evidence that return [of the child] would be detrimental.[6]

    Hence, the refusal to participate in these programs may well result in the permanent separation of a child from his parents–whether or not any maltreatment had actually occurred.

    In examining studies conducted by the American Humane Association during the mid-1980s, Dana Mack of the Institute for American Values found that half of the families that child welfare agencies compelled to undergo therapeutic services for child maltreatment never mistreated their children at all, and that many removals of children are capricious actions of “preventive intervention,” based on a caseworker’s presumption that although abuse may not have occurred, it may at some time in the future.[7]

    Even for those parents who comply with the reunification terms, the state has another way of using these plans to terminate parental rights. The laws throughout the states are written in such a way that “failure to substantially comply with the terms of the performance agreement,” or “failure to derive benefit from the services provided by the Department” are reason enough to have children permanently separated from their parents, once they have become dependents of the court.

    In a Minnesota case, for example, the “disposition plan” for reunification included the following elements:

    • (1) that appellants work with a housekeeper provided by the county to maintain the housekeeping standard from week to week;
    • (2) that appellants cooperate with an assessment and goals as determined by an in-home skills counselor, to provide a safe, clean, and organized living environment for the family;
    • (3) that prior to reunification, the home environment will have an adequate level of housekeeping, as determined by the social worker and public health nurse;
    • (4) that appellants keep all scheduled appointments with service providers or cancel and reschedule appointments in a timely manner;
    • (5) that appellants complete individual psychological and psychiatric evaluations and follow all recommendations;
    • (6) that appellants attend individual therapy to determine and address issues of depression, grief, and loss, and other issues as may be recommended by the treating therapist;
    • (7) that appellants cooperate and work with the assigned financial worker from the county and comply with the budget or recommendations of the financial worker;
    • (8) that appellants follow all recommendations of [the child’s] treating physicians and keep all appointments with the home health aide for the purpose of childcare, nutrition, and bathing; and
    • (9) that appellants maintain a working telephone in the residence at all times.[8]

    The sad reality is that abuse or neglect need not be demonstrated. Simple failure to maintain a purely subjective housekeeping standard, the missing of an appointment, failure to “adequately assimilate” budgeting skills, or the disconnection of a telephone can result in the permanent separation of a child from his or her parents.

    In most states, social workers have been granted the authority to construct these reunification plans at their sole discretion. And, there is precious little oversight from the courts in the construction of these plans. Montana reviewers found that most judges rarely issue orders or make recommendations addressing reunification or treatment plans, finding also that: “Some judges assert that it is appropriate for the courts to defer to the department’s expertise in these matters because of the social workers’ experience and education.”

    One judge reported that while he often orders parents to take parenting classes, he does not actually know what those classes entail!

    Hence, the construction of these plans is left to social workers who typically have precious little training, oversight or experience. Worse, over half of counsel representing parents said that they seldom receive information from service providers or the department regarding the availability of services. Reviewers determined that: “Parents’ counsel are, therefore, unable to to effectively challenge the appropriateness of a treatment plan.”[9]

    Personal bias or prejudice often play a role in how these plans are constructed.

    Veteran Juvenile Court Judge Judy Sheindlin recounts the story of one young couple named Robin and Tim. Robin had two children before she met Tim. She also had a drug problem. City caseworkers stepped in and removed her three children when the third was born with cocaine in her system. Tim, who was separated from Robin, lived at home with his parents and his brother, all of whom were employed. Judge Sheindlin describes the obstacles Tim had to face when he sought custody of his child:

    First, he had to establish paternity, proving that he was the biological father of his child. Tim did this. Next, the caseworkers told him that before he could even be considered for custody, he had to take parenting classes. He had to provide the name of the person who would be caring for his child while he worked during the day. He had to establish a permanent, independent residence. There was not a scintilla of evidence that he was an unfit parent, but these were the rules that Tim had to follow. He met all of the conditions.

    Meanwhile, Robin the drug addict had it easy. All she had to do was enroll herself in a drug treatment program and get on welfare. That, my friends, was it.

    When Judge Sheindlin asked the caseworker about this obvious gender disparity, her answer was simply: “Well, she’s the mother.”[10]

    The San Diego Grand Jury confirmed that these plans are sometimes intentionally made impossible to prevent reunification:

    Failure to comply with any element of a reunification plan is sufficient for termination of parental rights. We have taken testimony from attorneys, court appointed therapists, and social workers, that some of these plans are intentionally made impossible, particularly when infants or toddlers are involved.

    Chief Administrative Officer Norman Hickey conducted an independent investigation of the San Diego Department of Social Services. His report confirmed the San Diego Grand Jury findings, following on the heels of another stinging critique of the system by the county’s Juvenile Justice Commission.

    The system is too demanding of the parents, distracting them from more important issues, he wrote. “Too many tasks or unproductive requirements overwhelm parents and reduce the potential for priority behavioral change.” His report also indicated that foster parents may try to thwart reunification efforts. “A desire to take care of the child on a permanent basis must not be permitted to work against the parent’s goal” of reunification.[11]

    The Juvenile Justice Commission examined several troubling cases in which social workers sought to prevent reunification of children with their parents. They found such cases in their representative sampling to be “numerous and diverse.”

    In one such case, a social worker threatened that a child would be removed from the mother’s home if she allowed the child to attend a scheduled birthday party with her father in a public place. She further advised the mother to move to another part of the County, and keep her whereabouts unknown to the father.

    In another case, a social worker sought to prevent the development of ties between a child and her maternal aunt, even though the aunt was known to the worker as a licensed foster mother. The worker sought instead to maintain the child in a foster home in which the foster parents had expressed a desire to adopt the child.

    “The unwillingness of the Children’s Services Bureau staff, from line to administrative, to listen to opposing views to the point of being hostile and threatening has resulted in a backlash from the community, as well as tragic consequences for families,” the Commission found.

    “Court time and real time are world’s apart, so that while a case drags on from week to week and month to month, the agony of separation continues,” the Commission concluded. “While Court cases often require lengthy investigation and preparation to ensure due process of law to all involved, it must never be forgotten that these cases are ultimately about living, breathing human beings.”[12]