Family Law Commons^™

Building Resilience In Foster Children: The Role Of The Child's Advocate, Frank E. Vandervort, James Henry, Mark A. Sloane

Articles

This Article provides an introduction to, and brief overview of trauma, its impact upon foster children, and steps children's advocates" can take to lessen or ameliorate the impact of trauma upon their clients. This Article begins in Part 11 by defining relevant terms. Part III addresses the prevalence of trauma among children entering the child welfare system. Part IV considers the neurodevelopmental (i.e., the developing brain) impact of trauma on children and will explore how that trauma may manifest emotionally and behaviorally. With this foundation in place, Part V discusses the need for a comprehensive trauma assessment including a thorough …

Providing Attorneys For Children In Dependency And Termination Of Parental Rights Proceedings In Florida: The Issue Updated, Michael J. Dale

Faculty Scholarship

Florida's system for providing protection and safety to children in the State's child welfare system has changed over the past decade. Regretfully, the changes do not appear to have had a significant impact in two areas: increasing the safety and protection of children in the system' and providing children with independent attorneys to advocate on their behalf. Investigations, lawsuits, grand juries, amendments to court rules, and newspaper articles continue to demonstrate the myriad failures in the Florida system. Two notorious examples hi-lite the shortcomings: the cases of the foster child, Rilya Wilson, who disappeared in 2001, and Gabriel Myers, who …

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, …

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Joshua Gupta-Kagan

Faculty Scholarship

Abuse and neglect cases involve constantly changing facts. They “are unlike civil cases, which typically involve only facts gone by ... The ultimate parties in interest are the [children] themselves. And for them, their lives are ... ongoing event[s].” A child’s need to return to his parent may ebb or flow. His parent’s fitness may improve, regress, or remain the same. Federal law, followed in all states that wish to receive federal funds to support foster care, requires regular permanency hearings so family courts can make decisions based on evolving factual situations. These decisions, and the lack of greater procedural …

Federal Child Welfare Legislation., Frank Vandervort

Book Chapters

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases.

A Hidden Crisis: The Need To Strengthen Representation Of Parents In Child Protective Proceedings, Vivek Sankaran

Articles

A national consensus is emerging that zealous legal representation of parents is crucial in ensuring that the child welfare system produces just outcomes for children. National groups, inclucing the Pew Commission on Children in Foster Care, the American Bar Association Center on Children and the Law, and the National Association of Counsel for Children, have been outspoken on the need to strengthen legal advocacy on behalf of parents, and a number of states-including Colorado, Connecticut,' and Washington7 have initiated efforts to comprehensively reform their systems of appointing lawyers for indigent parents to better serve families. A national movement is afoot …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

Legal Strategies To Address Child Support Obligations For Nonresident Fathers In The Child Welfare System, Daniel L. Hatcher

All Faculty Scholarship

The legal and practical issues surrounding child support obligations have enormous impact on families in the child welfare system. Unfortunately, these issues are often ignored, overlooked, or misunderstood. A much-needed effort to engage nonresident fathers in the child welfare system is underway, but those efforts will often be derailed if child support is not properly addressed. This article sheds light on the legal and policy concerns regarding child support enforcement in child protection cases and provides legal strategies for advocates to address those concerns. While primarily aimed at advocates for nonresident fathers, this article should also benefit advocates for custodial …

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, …

When Child Protective Services Comes Knocking, Vivek Sankaran

Articles

A child protective services (CPS) worker knocks on the door of your client, a 36-year-old mother involved in a contentious child custody case. The worker reveals only that she received an anonymous phone call alleging that your client physically abused her son and now she must investigate those allegations under state law. The worker demands to enter the house, interview the children, and inspect the premises. She threatens that a lack of cooperation may result in the filing of a court petition and the possible removal of the child. Your panicked client calls with a plethora of questions: Can CPS …

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

Other Publications

This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

The African-American Child Welfare Act: A Legal Redress For African-American Disproportionality In Child Protection Cases, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This article proposes a radical change in the way African-American children and families are handled within the legal system when abuse and neglect are at issue. African-American disproportionality in child protection cases is significant for the United States because documentation shows that African-American children are overrepresented in the child welfare system in forty-eight states, although research shows that there is no difference in the occurrence of child abuse and neglect among the races. The first part of the article presents an overview of disproportionality by presenting the national statistics and research, revealing where racial bias and disparate treatment occurs within …

Measuring The Next 30 Years, Beth Locker, Andrew Barclay

University of Michigan Journal of Law Reform

The last thirty years have seen many changes in the field of child protection, as child welfare law and policy have been undergoing nearly constant change. Those changes, however, have rarely been supported by data or scientific research; rather, they seem to have been largely driven by individual perception of events and gut instincts resulting in what has become essentially a folklore-based system. By focusing on data and scientific research, we hope for better outcomes, but short of that, we at least hope to know whether, and why, outcomes change. The move towards data collection and analysis has begun, but …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

Articles

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …

The Road Goes On Forever And The Party Never Ends': A Response To Judge Tacoma's Prescription For A Return To Foster Care 'Limbo' And 'Drift', Frank E. Vandervort

Articles

This article responds to Judge Tacoma’s suggested changes in Michigan law. It begins with a very brief history of child welfare legislation at the federal and state levels. Next, it points out a number of errors in Judge Tacoma’s understanding of the current state of Michigan’s child welfare law.2 It is necessary to point out these errors because it seems that his misstatements of the law form the foundation for his recommended reforms. Then it will respond point-by-point to many of Judge Tacoma’s recommendations. Finally, I will off er several suggestions for addressing the problem of legal orphans that do …

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …

But I Didn't Do Anything Wrong: Revisiting The Rights Of Non-Offending Parents In Child Protection Proceedings, Vivek Sankaran

Articles

Steven, a minor living with his mother, enjoyed a nurturing relationship with his father, Mark. He saw his father every weekend and looked forward to their time together. Mark looked for ways in which to stay involved in his child's life. Two days ago, the Department of Human Services (DHS) removed Steven from his mother's custody because, unbeknown to Mark, Stevens mother was selling drugs in the home. At the time of removal, the police did not inquire about the whereabouts of Stevens father; DHS immediately placed Steven in a foster home.

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict, rather than collaboration, between the state and families. In lieu of a solely rights-based …

Addressing Putative Fathers In Child Protection Proceedings: Is 'John Doe' Still Alive?, Frank E. Vandervort, W. Lansat

Articles

In practice, it seems, KH is not widely understood. Child protection petitions for temporary custody continue to name multiple men as the "father" of a child when there is a legal father. Some courts insist on terminating the parental rights of "John Doe" when no man has established paternity. After KH, are such actions necessary? Are they permissible?

Federal Child Welfare Law And Policy: Understanding The Federal Law And Funding Process., Miriam Rollin, Frank Vandervort, Ann M. Haralambie

Book Chapters

This chapter provides an overview of federal and uniform statutes that impact the practice of child welfare law.

Florida's Foster Care System Fails Its Children, Timothy L. Arcaro

Faculty Scholarship

This article will attempt to draw attention to the pervasive problem of child sexual abuse in foster care by identifying circumstances that contribute to sexual victimization. Hopefully the discussion will illuminate the plight of child victims of sexual abuse and generate discourse on a new paradigm of protection initiatives for foster children. Part I of the article will explain child protection proceedings and how children enter the foster care system. Part II will describe common characteristics of state foster care systems. Part III will discuss traditional notions of child sexual abuse and their illusory application in the context of sexual …

Before It's Too Late: Neuropsychological Consequences Of Child Neglect And Their Implications For Law And Social Policy, Janet Weinstein, Ricardo Weinstein

University of Michigan Journal of Law Reform

Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger …

Baltimore City’S Child-Focused Court, Barbara A. Babb, Judith D. Moran

All Faculty Scholarship

No abstract provided.

The Silent Victims: Children And Domestic Violence, Nancy Ver Steegh

Faculty Scholarship

Few of us would fail to intercede if we happened upon a child being physically attacked. Most of us would shield even an unknown child from witnessing a traumatic event. If we knew that a child might come to harm, such as a toddler playing in traffic, most of us would escort that child to safety. On a personal level, we are committed to the well being of our children. As a society, however, we close our ears to the cries of the children growing up in violent homes. It is now time to give them voice. New research reveals …

Domestic Violence, Substance Abuse And Child Welfare: The Legal System's Response, Jane C. Murphy, Margaret J. Potthast

All Faculty Scholarship

This Article begins by exploring and documenting the connections between domestic violence, substance abuse, and child abuse. Part II of the Article examines the legal system's response to child protection cases in which maternal abuse and, in some cases, substance abuse are present. This section begins by describing the shifting theories underlying child welfare in this country. It then contrasts these theories with child welfare practice by reporting the results of a study of eighty-five Child in Need of Assistance (CINA) cases in four jurisdictions in Maryland. Although the study examines a limited sample, the cases examined confirm the strong …

Legal Images Of Motherhood: Conflicting Definitions From Welfare "Reform," Family And Criminal Law, Jane C. Murphy

All Faculty Scholarship

Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate …

Child Protection Law, Suellyn Scarnecchia

Book Chapters

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a parent's custodial rights. However, such rights are not absolute and may be terminated. There is no substantive due-process right to live together as a family. Doe v Oettle, 97 Mich App 183, 293 NW2d 760 (1980). Parents are not held to ideal standards in the care of their children but to minimum statutory standards. Fritts v Krugh, 354 Mich 97, 92 NW2d 604 (1958).

Recognizing Child Abuse: A Guide For The Concerned, Denise Esposito

Michigan Law Review

A Review of Recognizing Child Abuse: A Guide for the Concerned by Douglas J. Besharov

Medical Dependency In Arizona, Mary E. Berkheiser

Scholarly Works

Analysis of In re Cochise County Juvenile Action No. 5666-J, 650 P.2d 459 (Ariz. 1982).