Termination of Parental Rights

Jury Trials for Termination of Parental Rights:

Building villages from communities and ensuring due process for our most

vulnerable









By Stella Hackney-Farias

August 18, 2006

Jury Trials for Termination of Parental rights August 18, 2006







For most people we talk to, it never occurs to them that the state can remove

your children from you, take you before one judge, and sever your relationship with your

children forever. Though this is an over simplification of the process, it is the process

nonetheless. Even legal professionals are astonished to see what happens in these

cases.



According to the Pew Commission on Children in Foster Care, only about 12% of

surveyed voters could say that they were very familiar with the issue of foster care and

23% were familiar. The survey also found that “a majority (57%) of voters say that their

primary source of information about foster care is the news and other media, a

significant proportion (37%) say that most of their

foster care information comes from personal

experience with the system or the experience of

friends or family. In fact, voters who are very or

fairly familiar with foster care are more likely to get

their information from their direct or indirect

experience with foster care rather than from the

media.” What that tells us is that the general

population is for the most part kept in the dark

about what goes on with children in state care, and

the people who do know something about it have

been affected by the system somehow.



Do we really have that many abused and

neglected kids?



The quick answer to that is no. However, it

is complicated to figure out. We recognize that

there is a need for foster care; we recognize that

there are children who are abused, or neglected.

Child abuse does happen and it is horrendous.

Parents are sometimes addicted to drugs,

struggling with their own emotional and mental

problems, and/or not aware of HOW to take care of

a child (as you know, there is never an instruction

manual attached to the end of the umbilical cord).

To fog the issue further definition of abuse and

neglect changes with each generation. Fifty years

ago (well even 15 years ago in the South),

teachers, parents, and principles spanked children

and now it is unthinkable by many professionals.

The debate over spanking children is still a hot

topic in our society. A spanking can be construed

as abuse to one professional, and a cause for a

court finding of abuse leading to the removal of







Page 2 of 8

Jury Trials for Termination of Parental rights August 18, 2006





children and termination of parental rights. Often the inability to afford basic needs like

childcare, food, adequate housing, or medical needs are misconstrued as neglect. (The

discussion here will not delve into the cultural differences in raising children that is

problematic.)



The graph above, taken from a Seattle Times article gives the reasons for

removing children from their parents and the probable outcomes. Though the article

follows a couple going through the process of losing their child, it is anecdotal and, of

course, the news media were watching. The case ended with the mom signing the child

over for adoption. There was no trial.



This Times article is typical of how most people obtain their information from the

media. But do people really take a closer look at how the process is decided? Puff

pieces like this one show a system that works. However, you cannot get a real sense of

the whole picture from one article, which shadows one worker and one unique family.

Everyone asks questions when there is a horrible death that makes the national news.

The public is outraged when Child Protective Services did not protect the children from

starving to death, beaten so badly they have broken bones, or deliberately killed at the

hands of their mother. Is there a general assumption Child Protective Services are

doing their jobs when looking at the 54% of the neglected removed from their homes?



The generalization of statistics connected to personal stories and a heightened

awareness of child deaths could give people reason not look any further. However,

unless people come into direct contact or know someone who has they do not give it a

second thought…or at least that is what the Pew Survey mentioned above found.



It takes a village to raise a child. At least that is what the politicians tell us when

it comes to school taxes or welfare reform. There is some truth to that and the

community at large should have cause for concern over children. After all, if children

are not being looked after, they could end up in the streets painting graffiti, robbing

people and businesses, and committing other thrilling crimes. And what about the

smaller kids who cannot protect themselves? The community should have a great

interest in making sure this vulnerable population is protected. Perhaps even, it is a

breakdown in community that has caused the need for the increases in Child Protective

Services. Perhaps we need to find a way to realize that village.



We do have a community issue on our hands. Poor families are working

sometimes more than one full time job to make ends meet. Where do these children go

while parents are at work and the children are out of school? Traditionally people could

rely on grandparents, neighbors, and friends. Now grandparents are still employed, full

time themselves, (especially true for young parents). Their neighbors are in the same

predicament. Childcare is expensive and unattainable to many families. Leaving

children at home alone is cause for a finding of neglect. But how do we get the

community involved in the issue?









Page 3 of 8

Jury Trials for Termination of Parental rights August 18, 2006





So far, only the perspective of the public interest has been discussed. The

people most affected are the families, the cornerstones of our communities. This

includes the children themselves. Often it feels like terminating parents’ rights to a child

is a knee-jerk punishment for behavior such as drug use, promiscuity, or whatever else

a Child Protective Services caseworker will find abhorrent based on either his or her

personal or academic standards. Perhaps, even likely, a judge may agree. After all,

the caseworker is the expert.



The understanding is that to remove a child from a home the state must have a

court order, and is not strictly adhered to. The process, depending on the local area

could be as easy as faxing over a form signed by a caseworker’s supervisor to the

courthouse or as complicated as going forward in front of a judge or commissioner.

Many times the caseworker does not wait for the court to sign the order; he or she goes

ahead and removes the children anyway. Other times, the caseworkers will coerce the

parent with the threat of a court order into relinquishing their children to state care there

by negating any due process rights or court supervision by the court.



When the caseworker removes children from their family, it is traumatic for the

whole family, especially the children. For children it could be as traumatic as a

kidnapping by a stranger. At this point, the parents have not been compelled to go to

court, nor did they have the opportunity to object to the filing of the petition. That does

not happen until 72 hours (more if children are taken on a Friday or Holiday) later at

what is called a shelter care hearing.



At the Shelter Care hearings, the parents are appointed attorneys if they are

found indigent by the court. They find themselves thrown into an adversarial situation,

where the caseworker is the opposing party under the pretense of helping the family.

So what happens if the caseworker was wrong about the reasons for removing the

children?



Ninety-five percent of parents in juvenile dependency and termination cases are

found indigent in the state of Washington. There is a high correlation between abuse,

neglect, and poverty. How do we know that children are not removed from their families

under the heading of neglect, when it is really about lack of housing? Or how do you

make sure that children are not removed from a battered parent who could not afford to

move away from her and sometimes his abuser? How do you distinguish what

problems are related to poverty and which can be attributed to inherent dysfunction.

Most importantly, how do you make sure that the Child Protective workers are making

reasonable efforts to keep the family together?



Following the Shelter Care hearing, there are a few review hearings before what

is called a fact-finding hearing 75 days later that decides, more often than not, a child is

a dependant. In 2005, Washington State filed 4,414 dependency petitions and 3,191

were approved. Otherwise, 984 petitions were resolved by changes of venue,

uncontested resolutions, dismissals, or transfers of jurisdiction.









Page 4 of 8

Jury Trials for Termination of Parental rights August 18, 2006





So far, a family has had to wait a minimum of three days before speaking to a

judge or commissioner to contest their children being taken. Then they have waited

another two and a half months before deciding the merits for removing the children.

Court appointed attorneys represent parents, but statistically they seldom survive the

fact-finding hearing. The facts of the case are decided based on the preponderance of

the evidence by one single judge who defers to the caseworkers testimony as an expert

without question and the State Assistant Attorney General representing that “effort” …

still without a trial.



Immediately after the entering of findings the court orders a set of “services” that

usually include counseling, psychological and/or psychiatric evaluations, visitation,

parenting classes, drug evaluation and treatment (sometimes without a history of

addiction). The families must complete these “services” before the children can be

returned home to their families, but there are no guarantees. Often the services plans

created are not fitting to the individual family. Worse yet, the Judge orders the family to

pay for these services, which can run into the tens of thousands of dollars. The

arbitrary case plans and lack of services feel punitive. The State has just taken the

children from the home, told the parents they must complete services, but said we are

not going to make it possible for you to complete them.



During this time, there are review hearings, and eventually what they call a

permanency planning hearing (six months after the dependency findings). At the

permanency planning hearing they decide whether or not the child will likely return

home. After the children are out of the home for 12 months out of 15 months, the State

must file a petition to terminate the parental rights so another family can adopt the

children. The State must file this regardless if there is an adoptive home available, or

they risk sanctions by the Federal Government.



The decision to approve a termination of parental rights petition is decided at

another fact-finding hearing. This time the evidence is weighted using the clear, cogent,

and convincing evidence, slightly more stringent than to establish a dependency.

However, it is still not a trial; it is a hearing and is still in front of a single judge. The

evidence presented by a caseworker who has been supposing to help the family

reunify, yet is an adversary at the court hearings.



The laws and process discussed thus far can be found in the Revised Codes of

Washington (RCW), Chapter 14.34 however, these are only superficially State laws.

Federal laws dictate the timeliness in which the states must hold their hearings and

terminate parental rights. These statutes were passed to comply with the Adoption and

Safe Families Act of 1997 (ASFA). This law set it up so that the parental rights must be

terminated based on the 12 out of 15 consecutive months.



ASFA is also the law that provides the state with foster care and adoption

incentives under Title IV-E, which totaled 6.1 billion dollars to the States in 2004. In

addition, they only project 503 million dollars to cover the costs of the courts and

ordered services. In other words, the Federal Government provides roughly 8.2% of







Page 5 of 8

Jury Trials for Termination of Parental rights August 18, 2006





what they spend on keeping children out of their family homes than they do returning

them. According to the Urban Institute Washington State received 93 million dollars in

Title IV-E Federal funding. Title IV-E provided dollars to subsidize foster care

maintenance and continuous cash payments to adoptive parents to help with “special

needs” children and “hard to place” children that are more than 12 years old.



The intention of ASFA was to free kids from languishing in foster care and find

them adoptive homes, but in practice, it creates a multi billion dollar industry, keeping

children from returning from their homes.



Clearly with the system stacked against them due process in the eyes of most

people who are going through the Juvenile Dependency court is some kind of legalese

or a rhetorical phrase thrown about as they are tearing the child permanently from their

lives. The caseworker who is supposed to help the family is in a precarious situation

because they are required to testify in favor of terminating the child and parental

relationship. A State attorney who wants the win represents the caseworker. The

children have an advocate, either a volunteer Court Appointed Special Advocate

(CASA) or a Guardian Ad Litem (GAL). The children’s advocate is usually in step with

the social worker, advocating for permanency through foster care or adoption. The

public defender sitting next to the parent is usually over burdened, and does not know

the case as well as he or she should. Strings of professionals are paid to testify on

behalf of the State regarding the family unit, often not favorably about parents. Finally,

a judge makes a decision based on his or her own cultural understanding of family

dynamics, psychological issues, and what he or she thinks is in the best interest of the

child. All these people are purporting to know each family member better than the

family knows themselves and making predictions. The courtroom is stacked against the

parent; how does this adhere to the right to procedural due process?



In Juvenile Dependency courts, many euphemisms are used that really do not

mean what they sound like in practice. Phrases like “best interest of the child” and

words like “permanency”, and “services” are thrown around. It is enough to make even

experienced attorneys heads hurt and that makes the parent feel overwhelmed. The

children are rarely kept apprised of the process. The public and community are rarely

aware of what is going on.



Permanency is a word that is supposed to mean adoption, a “forever home” for

the child. This is not something that the States have shown an aptitude for providing.

According to the Annie E. Casey Foundation’s Alumni Study, foster kids who lose their

parental rights are not likely to succeed in life. Despite ASFA’s intention, the number of

foster kids in the system has doubled in the past couple of decades. They are moved

from foster home to foster home without finding adoptive homes. A little over half of the

children that stay in foster care until they come of age even graduate from high school,

giving them a higher unemployment rate. Over half of the former foster kids were found

to be suffering from mental illness. Many end up in institutions like jails and mental

hospitals.









Page 6 of 8

Jury Trials for Termination of Parental rights August 18, 2006





So in essence, “permanency” only means that the child and parent relationship is

permanently severed, it has little to do with what happens to the child after court.



“The best interest of the child” phrase is thrown around the most. Usually the

interests of the child are based on this idea of permanency. The people that care about

the child the most, who have inherent reasons for caring, the parents, are rarely listened

to. How do we know that they are deciding the best thing for the children? Though the

laws are written to compel the State to reunify families, the funding is not there.



There is no doubt that the system is in need of reform; it is costly in both human

capital and tax dollars. The remedy we propose here to address these problems is

fairly simple and worthwhile. We request that families have option of having the

termination of parental rights decided by a Jury. Let a panel of peers help in this

process. It would involve the community and promote a more informed citizenry. A

sure way of compelling ordinary citizens to participate their civic responsibilities and

especially expanding their sense of community is through the jury service. If ordinary

people were to sit through one trial and realize the desperation in the family’s life,

perhaps it would compel them to take part in helping others in their own communities.

Jury trials will realize that village it takes to raise a child.



Jury trials for termination of parental rights would also allow the citizens to decide

if their taxes are going to be spent on indefinite support to the foster parents and

adoptive parents or to make sure the responsibility is left on the parents. Let it be a

community decision, and not left up to a handful of state employees paid to terminate

parental rights.



It is not that we think that a jury should make all decisions, but families should at

least have the option. What are most important about juries are the uncertainty and the

out of court settlements, which are always easier on the families to endure than even

the fact-finding hearings in front of a judge. It is part of our adversarial system, even the

majority of all civil and criminal trials are settled before going before a jury. But the

burden of proof on the state will be greater with more attention and more citizen input.



The constitutional justifications can be found in the Bill of Rights, Amendments 7

and 14. The 7th amendment affords the right to a jury trial when there is a federal law

involved, which is clearly the Adoption Safe Families Act that coerces the State through

their funding mechanisms and fines them if they do not comply with the statutes limiting

the amount of time a child can spend in care.



The 14th amendment affords “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws”. The

relationship between a child and parent is not just a privilege; it is a right. Terminating

parental rights legally kills, so to speak, the relationship. Once rights are terminated, it

is as though that parent is dead to the child and the child is now dead to the parent (yet







Page 7 of 8

Jury Trials for Termination of Parental rights August 18, 2006





there is no grave). In essence, the termination of parental rights terminates life and

liberty.



Furthermore, the US Supreme Court said that parental rights were fundamental

rights in Stanofsky vs. Kramer. While they do not say that parental rights are absolute,

they are still fundamental. These are precious rights and should not be left up to an

individual judge with a small army of civil servants to make this delicate decision. The

fact that Washington State does not expressly call the fact-finding hearings trials

screams reform and lack of due process. In fact, the word trial is not even stated in all

of RCW 13.34.



By fundamental rights, the courts mean that it is a natural right, which far

outweighs any concern over the timeliness of a jury trial or the cost burden of the

taxpayer. The timeliness issue pales in comparison when we are talking about the

lifetime relationship between a child and a parent. Jury trials, I believe, can make things

happen for the family more swiftly. Given there will be public oversight into the case

through a jury trial, therefore putting the caseworker under stricter scrutiny in the long

run, the system will more likely exhaust all efforts before filing a termination.



The immediate cost of a jury trial could not possibly come close to the cost of

keeping children in both foster homes and subsidized adoptive homes. Washington

receives $93 million in Title IV-E reimbursement for foster care and adoption subsidies

and much more is matched out of State coffers. Besides, can you possibly justify

putting a price tag on the relationship between a child and parent. Because these are

not just the fundamental rights of the parent but they are the fundamental rights of the

child to have a parent for the entirety of the natural lifetime of the parent. This is not

something that can be quantified.



To say that citizens are afforded a right to a jury in matters of property, and

children are not property and therefore do not warrant jury trials is backwards. Children

are worth much more than property. To say that juries are not warranted is to say that

children are worth less than personal property. This is demeaning to children and their

families.



Our current system makes it far too easy for the State to terminate the parent

child relationship. It is more difficult for a police officer to arrest a suspect than it is for a

social worker to remove a child forever.



Ultimately, it is the parents’ responsibility to raise their children, not the State’s!









Page 8 of 8