by Brian Shilhavy
Editor, Health Impact News
Vivek Sankaran is a clinical professor of law at the University of Michigan Law School, and he directs both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic, through which law students represent children and parents in trial and appellate proceedings.
Professor Sankaran understands the failures of today’s foster care system better than most people in the U.S. do, and he has written:
The United States destroys more families than any other country in the world. While our Supreme Court has recognized that a parent’s right to care for her child is one of the oldest and most fundamental rights recognized by our Constitution, our federal child welfare policy is centered on the destruction of families.
Once a child enters foster care, federal law places strict time frames of how much time a court can give a parent to reunify with their child. If that time elapses, the law prioritizes terminating that parent’s rights so that the child may be freed for adoption.
In fact, states are given financial incentives to make that happen. The more adoptions they process, the more federal funds they receive. Other options can only be pursued after the child welfare agency rules out destroying the family.
But what are the hidden costs created by this sprint to termination? Are we unnecessarily depriving children of important relationships with their parents? Are we orphaning children for the hopes of something that might never be achieved?
Even when a child is adopted, are we assuming a legal fiction of “permanency” when the changing nature of families is far more complicated and nuanced? Do we even know that adoptions create permanent homes for children? And in taking these steps, are we inflicting great pain on children that will remain with them forever? (Source.)
In a recent blog post (August, 2019), Professor Sankaran addressed an issue where judges in Juvenile Court often do not follow the law.
Some excerpts:
A System In Need Of Umpires
A few weeks ago, a retired judge shared with me how he’d reform juvenile court. He remarked, “I’d tell judges they shouldn’t be umpires. They need to do more than call balls and strikes. They need to go out there and help kids.”
I get that sentiment. We all entered this field to help kids and their families. We all want to ease the suffering of those in pain. We all feel the urge to do more. But I disagree with him.
Perhaps what our families need more than anything else are umpires, with juvenile court judges using the law as their strike zone. As a lawyer for children and parents over the last 18 years, I’ve been struck by how little the law factors in at everyday court hearings. Judges don’t demand citations to statutes. Attorneys don’t file motions. As a result, hearings don’t revolve around the governing legal standards.
In fact, throughout my career, I’ve heard judges chide lawyers and parents when they emphasize the law. One frustrated judge said to a colleague, “I see you’re going down the statutory road again.” Another said to a parent, “I know there’s a legal right to ask for more visits. But if I gave it to you, then I’d have to give it to every parent.” A third said, “I know the law says that corporal punishment is allowed. But in my courtroom, this is what we do.”
Emblematic of this, a Michigan survey of judges found that 40 percent of judges refused to enforce the legal requirement that the agency make “reasonable efforts” to reunify a family because they were concerned that the finding would decrease funding for the child.
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