Juvenile Law Commons^™

Nudging Improvements To The Family Regulation System, Joshua Gupta-Kagan

Faculty Scholarship

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

Falling Through The Cracks: The American Indian Foster Care To Sexual Exploitation Pipeline And The Need For Expanded American Indian Community Services In Minnesota, Sadie Hart

DePaul Journal for Social Justice

No abstract provided.

Child Welfare Service Worker's Perspective Of The Juvenile Justice System, Valorie Antone, Kathryn Whitehead, Alexander Comeau, Zoe Donvan

Thinking Matters Symposium

Prior literature indicates youth who have had adverse childhood events or are diagnosed with a mental illness are more likely to become involved in the juvenile justice system (Chappard & Maggard, 2020). While research has been performed to involve juvenile justice workers and juveniles that have been involved in the system, there has been little involvement by the child welfare workers who have followed the trajectory of the youth from the beginning of involvement. This study investigates the perceptions of child welfare workers regarding youth involvement in the criminal justice system, addressing a current gap in the literature. In terms …

A Ringing Endorsement Of Lawyers, And The Most Important Development In Child Protection Law, Joshua Gupta-Kagan

Faculty Scholarship

Two empirical studies demonstrating the impact of vigorous family defense legal work on child protection cases bookended the 2010s. In 2012, Mark Courtney and Jennifer Hook found that cases in which a specialized interdisciplinary law office (ILO) represented parents had faster reunifications, guardianships, and adoptions than similar cases with different parental representation, though it did not explore how those results were obtained. In 2019, Lucas Gerber, Yuk Pang, Timothy Ross, Martin Guggenheim, Peter Pecora, and Joel Miller found that, compared to solo and small office practitioners, ILOs in New York City hastened reunification and guardianships for their clients, leading to …

Serving-Up The Ace: Understanding Adverse Childhood Experiences (“Ace”) In Dependency Adoption Through The Lens Of Social Science, Cynthia G. Hawkins, Taylor Scribner

University of Michigan Journal of Law Reform Caveat

Almost certainly, every child who enters the foster care system has endured some sort of trauma. It is unrefuted that childhood trauma correlates with mental, physical, and behavioral problems well into adulthood. In 1998, one of the first major studies of the relationship between certain forms of childhood trauma and adult behavior and disease was reported. Collectively, these traumas are called “Adverse Childhood Experiences” (ACE).

Today ACE refers to ten common forms of trauma that individuals may have experienced as children. To put this issue in perspective, it is currently estimated that 34.8 million children in the United States are …

More Than The Vote: 16-Year-Old Voting And The Risks Of Legal Adulthood, Katharine B. Silbaugh

Faculty Scholarship

Advocates of 16-year-old voting have not grappled with two significant risks to adolescents of their agenda. First, a right to vote entails a corresponding accessibility to campaigns. Campaign speech is highly protected, and 16-year-old voting invites more unfettered access to minors by commercial, government, and political interests than current law tolerates. Opening 16-year-olds to campaign access undermines a considered legal system of managing the potential exploitation of adolescents, which sometimes includes direct regulation of entities and also gives parents authority in both law and culture to prohibit, manage, or supervise contacts with every kind of person interested in communicating with …

Life Is A Highway: Addressing Legal Obstacles To Foster Youth Driving, Lucy Johnston-Walsh

Faculty Scholarly Works

The simple and relatively mundane act of driving a car, which many of us take for granted, can have a profound impact on many aspects of adulthood. The ability to drive a car can provide a means to pursue education and employment, to earn income, and to ultimately obtain independence. As a young adult, a car is often the first acquired asset, which leads to developing credit history for other major life purchases. Owning a car may also be a significant contributor to a person’s economic wellbeing and future buying power. Yet the simple act of driving a car is …

Children In Foster Care: The Odds Are Against Them, Shawna Doughman

GGU Law Review Blog

Most child welfare reports that lead to removal of children from their homes are filed for neglect rather than abuse. Often, their parents want to take care of them, but are failing for one reason, or for many. Nonetheless, the lion’s share of the $30 billion annual budget of state and federal child welfare funding goes overwhelmingly to foster care and adoption services which remove the children from their parents, instead of to helping those families care for their own children.

THE S

Mediation In Education For Foster Care, Anelise Powers

Pepperdine Dispute Resolution Law Journal

There are well over 400,000 children in foster care. Education can improve the well-being of foster children in critical development stages of life and support their economic success in adulthood. In recent years, the law has given greater priority to the education of foster children, and foster children are often eligible for additional services. However, a common trend in foster care research is that foster children, though eligible, do not always receive the services created to assist them. This paper will explore how improving mediation related to education and foster care can help maximize the impact of efforts to improve …

Rethinking Foster Care: Why Our Current Approach To Child Welfare Has Failed, Vivek Sankaran, Christopher Church

Articles

Over the past decade, the child welfare system has expanded, with vast public and private resources being spent on the system. Despite this investment, there is scant evidence suggesting a meaningful return on investment. This Article argues that without a change in the values held by the system, increased funding will not address the public health problems of child abuse and neglect.

America's Hidden Foster Care System, Joshua Gupta-Kagan

Faculty Scholarship

In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court. Both the frequency of these actions (this Article establishes that they occur tens or even hundreds of thousands of times annually) and their impact (they separate parents and children, sometimes permanently) resemble the formal foster care system. But they are hidden from courts, because agencies file no petition alleging abuse or neglect, and hidden from policymakers, because agencies do not generally report these cases.

While informal custody …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Articles

Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a different …

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Maine Law Review

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran

Articles

Removal and placement in foster care is child welfare’s most severe intervention, contemplated as “a last resort rather than the first.” Federal law, with an overarching goal of preventing unnecessary removals, bolsters this principle by requiring juvenile and family courts to carefully oversee the removal of children to foster care. Expansive research reminds the field that removal, while often necessary, is not a benign intervention. Physically, legally, and emotionally separating children from their parent(s) can traumatize children in lasting ways. Yet review of federal data concerning children in foster care reveal a troubling narrative: each year, tens of thousands of …

“Letting Kids Be Kids”: Youth Voice And Activism To Reform Foster Care And Promote “Normalcy”, Bernard P. Perlmutter

Books and Book Chapters

In this chapter, I examine stories that foster care youth tell to legislatures, courts, policymakers, and the public to influence policy decisions. The stories told by these children are analogized to victim truth testimony, analyzed as a therapeutic, procedural, and developmental process, and examined as a catalyst for systemic accountability and change. Youth stories take different forms and appear in different media: testimony in legislatures, courts, research surveys or studies; opinion editorials and interviews in newspapers or blog posts; digital stories on YouTube; and artistic expression. Lawyers often serve as conduits for youth storytelling, translating their clients’ stories to the …

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 …

Federal Legislation Protecting Children And Providing For Their Well-Being, Frank E. Vandervort

Book Chapters

Over the past several decades a national model for child welfare practice has emerged. In Child Welfare Law and Practice, also known as "The Red Book", experienced NACC authors and child welfare advocates have captured and refined that model, offering a comprehensive guide for those who make child welfare advocacy their priority. Designed as a study guide for attorneys preparing to take the NACC Child Welfare Law Certification Exam, the Red Book serves as a day-to-day guide for child welfare advocates across the country, offering in-depth analysis and instruction on wide variety of topics in the field of child welfare …

Easy Come, Easy Go: The Plight Of Children Who Spend Less Than 30 Days In Foster Care, Vivek Sankaran, Christopher Church

Articles

This article explores the plight of “short stayers” and argues that juvenile courts are failing to use two tools—the federal reasonable efforts requirement and the early appointment of parents’ counsel—to prevent the unnecessary entry of children into foster care. The article also argues that states should give parents and children the right to an expedited appeal of removal decisions to ensure removal standards are properly applied. Finally, this article argues that the federal government must acknowledge the problem of short stayers by utilizing data related to children who may unnecessarily enter foster care in the Child and Family Services Review, …

Strange Bedfellows: How Child Welfare Agencies Can Benefit From Investing In Multidisciplinary Parent Representation, Vivek S. Sankaran, Patricia L. Rideout, Martha L. Raimon

Other Publications

This is the second of a series of articles that examines the role that advocates for parents and families can play in furthering the wellbeing and safety of children. This article highlights emerging parent representation models that expedite the safe reunification of children already in foster care.

Non-Exclusive Adoption And Child Welfare, Joshua Gupta-Kagan

Faculty Scholarship

This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children’s legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent–child relationships but denies foster parents the legal title of “parent,” even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of …

Foster Kids In Limbo: The Effects Of The Interstate Compact On Children In Foster Care, Vivek Sankaran

Articles

Each year, child welfare agencies make over 40,000 requests for home studies to determine whether children in foster care can be placed with parents, relatives, and others living in another state. Each request is governed by the Interstate Compact on the Placement of Children (ICPC), a uniform law adopted by every state to coordinate the placement of foster children in other states. Under the ICPC, a child can only be placed in foster care in another state after the receiving state conducts a home study and approves the proposed placement. Despite its good intentions, the ICPC has become unworkable...A study …

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 …

Case Closed: Addressing Unmet Legal Needs & Stabilizing Families, Vivek S. Sankaran, Martha L. Raimon

Other Publications

This is the first of two articles that examines the role that advocates for parents and families can play in furthering the well-being and safety of children. This article highlights how the work of multidisciplinary advocacy teams with legal expertise can help prevent children from entering foster care. The next article will discuss emerging parent representation models that expedite the safe reunification of children already in foster care.

Using Preventive Legal Advocacy To Keep Children From Entering Foster Care, Vivek Sankaran

Articles

Children may unnecessarily enter foster care because their parents are unable to resolve legal issues that affect their safety and well-being in their home.[...] Yet these kinds of legal needs for poor families are rarely met. On average, poor families experience at least one civil legal need per year, but only a small portion of those needs are satisfied. For about every six thousand people in poverty, there exists only one legal aid lawyer. So legal aid programs are forced to reject close to a million cases each year. This lack of legal services threatens the well-being of children[...] who …

In Re Sanders And The Resurrection Of Stanley V. Illinois, Joshua Gupta-Kagan

Faculty Scholarship

This Essay begins by reviewing Stanley v. Illinois, and outlines how that foundational case originally recognized parental rights in foster care cases yet became understood primarily as a private adoption case. Second, it explains how, simultaneously, family courts developed the One-Parent Doctrine and a related doctrine making it difficult to transfer custody of a child from an abusive or neglectful parent in one state to a non-offending parent in another. Both doctrines violate Stanley by allowing the State to take custody of children without ever proving parental unfitness. Cases adopting these doctrines literally ignore Stanley. Third, this Essay …

The Dangers Of Psychotropic Medication For Mentally Ill Children: Where Is The Child’S Voice In Consenting To Medication? An Empirical Study, Donald H. Stone

All Faculty Scholarship

When a child with a mental illness is being prescribed psychotropic medication. who decides whether the child should take the medication — the parent or the child? What if the child is sixteen years of age? What if the child is in foster care: Should the parent or social service agency decide? Prior to administering psychotropic medication, what specific information should be provided to the person authorized to consent on behalf of the child? Should children be permitted to refuse psychotropic medications? If so, at what age should a child he able to refuse such medication What procedures should be …

Forgotten Fathers, Daniel L. Hatcher

All Faculty Scholarship

Poor fathers like John are largely forgotten, written off as a subset of the unworthy poor. These fathers struggle with poverty – often with near hopelessness – within multiple systems in which they are either entangled or overlooked, such as child-support and welfare programs, family courts, the criminal justice system, housing programs, and the healthcare, education, and foster-care systems. For these impoverished fathers, the “end of men” is often not simply a question for purposes of discussion but a fact that is all too real. In the instances in which poor fathers are not forgotten, they are targeted as causes …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

The Legal Significance Of Adolescent Development On The Right To Counsel: Establishing The Constitutional Right To Counsel For Teens In Child Welfare Matters And Assuring A Meaningful Right To Counsel In Delinquency Matters, Michael J. Dale, Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Robert G. Schwartz

Faculty Scholarship

No abstract provided.

Purpose Vs. Power: Parens Patriae And Agency Self-Interest, Daniel L. Hatcher

All Faculty Scholarship

The purpose of human service agencies to serve vulnerable populations such as abused and neglected children derives from the common law doctrine of parens patriae, embodying the inherent role of the state as parent of the country. However, along with this foundational purpose, the parens patriae doctrine also provides power that is illusive to public knowledge and oversight. To maintain their cloak of power, the very agencies created to fulfill the parens patriae obligations — to protect the rights of children — have systematically battled the children’s efforts to claim those rights as their own. Also, the agencies have now …