Law Commons^™

The Stability Paradox: The Two-Parent Paradigm And The Perpetuation Of Violence Against Women In Termination Of Parental Rights And Custody Cases, Judith Lewis

Michigan Journal of Gender & Law

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable.

This Article …

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

Articles

In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.

When Children Object: Amplifying An Older Child’S Objection To Termination Of Parental Rights, Brent Pattison

University of Michigan Journal of Law Reform

Each year, thousands of children become wards of the state when a court terminates the legal rights of their parents. Between 2010 and 2014, more than 307,000 children lost their legal relationships to their parents in Termination of Parental Rights (TPR) proceedings. A growing percentage of child welfare cases involve older children. At the same time, too many young people lose their legal relationships with their parents without a family waiting to adopt them. The stakes are high for children in TPR cases; nonetheless, many children—even older children—cannot meaningfully participate in proceedings. Moreover, TPR cases threaten parents’ and children’s rights …

A Child's Journey Through The Child Welfare System, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others - all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug

Michigan Law Review First Impressions

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act ("ICWA") mandated Veronica's return. However, the court's decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act's repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court's decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Child Protection Law And Procedure, Frank Vandervort

Book Chapters

Child protective proceedings involving non-Indian children are primarily governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.1 et seq.; and subchapter 3.900 of the Michigan Court Rules. Taken together, these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding, when necessary, with appropriate legal action. For child protective proceedings concerning Indian children, see chapter 25. While these statutes form the primary authority for handling child protection proceedings, practitioners must be aware that federal law, specifically Title IV-E of the Social Security Act, …

A Child's Journey Through The Child Welfare System., Susan Badeau, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others-all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children enter care …

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis

Michigan Journal of Race and Law

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …

A Child's Journey Through The Child Welfare System, Sue Badeau `, Sarah Gesiriech, Ann M. Haralambie, Amanda George Donnelly, Donald N. Duquette

Book Chapters

Once a child is known to the child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others, all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children (60 percent) enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others (17 percent) enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. …

Child Protection Law And Procedure, Frank E. Vandervort

Book Chapters

Child protective proceedings are governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.l et seq.; and Subchapter 3 .900 of the Michigan Court Rules. Taken together these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding with appropriate action.

A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia

Articles

On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …

Imagining Children's Rights, Suellyn Scarnecchia

Articles

Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …